Hon'ble Vivek Kumar Birla,J.
Heard Sri Ram Niwas Singh, learned counsel for the petitioner, and Sri Q.H. Siddiqui for the respondent-Jal Nigam.
The petitioner is a construction company that was awarded a contract by the U.P. Jal Nigam for constructing an over head tank at a particular village. The petitioner's tender was accepted and the petitioner contends that according to him the work has been completed and the amount is due which has not been paid to the petitioner. There is a dispute with regard to a payment of Rs.38,500/- about which an allegation has been made in paragraph 7 of the counter affidavit which has been denied by the petitioner in rejoinder. This Court on 30.9.2013 passed the following order :-
Hon'ble Vineet Saran,J.
Hon'ble Manoj Kumar Gupta,J.
In paragraph 6 of the counter affidavit, it is submitted that the petitioner has completed some work and certain amount is due to be paid to the petitioner which shall be paid "immediately after receiving further funds, the pending bills of the petitioner will be paid." In paragraph 7, it is stated that the amount of Rs. 38,500/- has been paid to the petitioner on 26.03.2011, which the petitioner has denied in the rejoinder affidavit.
Let the respondent No. 2 U.P. Jal Nigam file a detailed affidavit stating as to what amount is due to be paid to the petitioner, which is not being paid to it because of paucity of funds and what was the mode of payment of Rs. 38,500/- to the petitioner on 26.03.2011. The respondent may file such affidavit within two weeks.
List on 23rd October 2013.
Order Date:- 30.9.2013 Affidavits have been exchanged between the parties.
The issue as to the maintainability of the writ petition being involved for such payment, learned counsel for the petitioner was called upon to assist the Court with the judgments in this regard. Sri Ram Niwas Singh, learned counsel for the petitioner, has cited the following judgments, namely, ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others, reported in 2004 (3) SCC Page 553, Godavari Sugar Mills Ltd. Vs. State of Maharashtra and others reported in 2011 (2) SCC Page 439 and Ashok Kumar and others Vs. State of U.P. and others reported in 2013 (9) ADJ page 448 in support of his contention that where an amount which is due to a contractor from a public authority discharging sovereign functions then a writ petition would be maintainable for a direction to the said authority to ensure payment of the amount which is due and is admitted and not disputed.
Sri Singh, learned counsel for the petitioner, submits that the applicant is a small contractor and about 14 lacs is due that has not been paid to the petitioner for no valid reason except that funds are yet to be received.
Sri Q.H. Siddiqui, learned counsel for the respondents, had been called upon to assist the Court on the said issues. The judgments on which reliance has been placed Sri Siddiqui has urged that all this is subject matter of the contract between the parties and the petitioner is not entitled to the claim of the payments as urged. He, however, on the basis of instructions received, submits that as soon as the funds are arranged, the payments whatever is due to the petitioner, would be made within three months from today.
This Court has come across two judgments of two division benches, one in the case of M/s R.S. Associate Vs. State of U.P. and others, Writ Petition No.11544 of 2014, decided on 24.2.2014 and another Division Bench judgment in the case of Sant Lal Yadav Vs. State of U.P. and others, Writ Petition No.37639 of 2014, dismissed on 23.7.2014. A perusal of the aforesaid judgments indicate that they have been decided on the broad principle that a writ petition under Article 226 of the Constitution of India for satisfying a money claim arising out of a contract would not be maintainable. On the other hand, the Division Bench cited by Sri Singh in the case of Ashok Kumar and others Vs. State of U.P. and others, 2013 (9) ADJ Page 448 proceeds on the premises that if such a case arises the payment has to be ensured and a writ petition would be maintainable for the said purpose. This view has further been indicated in another Division Bench judgment of this Court in the case of Amitabh Jalan Vs. State of U.P., Writ Petition No.17989 of 2013, decided on 8.1.2014. The aforesaid Division Bench judgment has taken into account the ratio of another judgment of the Apex Court in the case of Binni Ltd. and another Vs. Sadasivan and others, 2005 (6) SCC Page 657 and the judgment in the case of Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond and Gem Development Corporation Ltd. and another, 2013 (5) SCC Page 470. In the aforesaid circumstances, this Court is faced with prima facie conflicting opinions of the Division Benches of this Court which may require to be resolved by an authoritative pronouncement of a larger bench in some appropriate case, as in the present matter, in view of the statement given by Sri Siddiqui, learned counsel for the Jal Nigam, that the payments which are due to the petitioner will be made within three months, the aforesaid legal proposition need not be answered by us.
Thus, leaving the aforesaid question open to be considered in some appropriate case, we dispose of the writ petition in view of the statement given by the learned counsel for the Jal Nigam.
Order Date :- 5.8.2014 Anand Sri./-