IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION No.41208 OF 2015 (GM-RES) Between Sri Sai Constructions Rep. By its Managing Partner Sri.Guntipalli Venkateshwarlu, S/o Malakondaiah, Aged about 58 years, Res Cum Off. at Flat No.302, D.No.8020319/R/17, Srirama Enclave, Raghava Society, Road No.14, Banjara Hills, Hyderabad-500 034.
(By Sri: K. N. Mohan., Advocate) And 1. Karnataka Road Development Corporation Ltd., Rep. By its Managing Director, 1st Floor, 16/J, Thimmaiah Road Cross, Miller Tank Bed Area, Vasanthnagar, Bangalore-560 052.
... Petitioner 2. The Chief Engineer Karnataka Road Development Corporation Ltd., Rep. By its Managing Director, 1st Floor, 16/J, Thimmaiah Road Cross, Miller Tank Bed Area, Vasanthnagar, Bangalore-560 052.
3. The Asst Director Mines and Geology, Tumkur Post, Tumkur District-572 101.
4. M/s. Abhijeet Infrastructure Ltd., SPV of Abhijeet Toll Toad, (Karnataka) Ltd., 6th floor, Land Mark Building, Wardha Road, Nagpur-440 010. Maharashtra State.
5. M/s. Abhijeet Projects Ltd., Insignia Towers, ENI, Sector V, Salt Lake, 3rd floor, Kolkata-700 091. Also at 6th floor, Land Mark Building, Wardha Road, Nagpur-440 010, Maharashtra State.
6. M/s. Compass Dealcom Pvt. Ltd., 28, Strand Road, 2nd floor, Kolkata-700 001.
7. M/s. K.Venkataraju Engineers & Contractors, Rep. By T.Kisan Kumar, Managing partner, Admin. Office: D.No.40-5/3-14, Naveen Buildings, 2nd floor, Syamnagar, Tikkle Road, Vijayawada-520 010.
... Respondents (by Sri. Ajay J. Nandalike., Advocate for R1 & 2, Sri.R.B.Satyanarayana Sing, AGA for R3, R4, 5 & 6 are served and Notice to R7 dispensed) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned Auction Notification dated 08.09.2015 as per annexure-B, issued by respondent No.1 and direct the respondents to pay the amount i.e., due to the petitioner as per the terms of the sub contract with the principal contractors and also seek payment of due for the manufacture of crushed stone jelly supplied for the road work and thereafter only this material can be disposed at the whims and fancies of the respondent No.1.
This Writ Petition coming on for Preliminary Hearing in ‘B’ group, this day the Court made the following:
ORDER The petitioner is before this court assailing the auction notification dated 08.09.2015 at annexure-B to the petition. In that light, the petitioner is seeking issue of mandamus to direct the respondents to pay the amount which is due to the petitioner as per the terms of the sub contract with the principal contractors and in that light, they seek payment for the manufacture of crushed stone jelly supplied for the road work.
2. The respondent Nos.1 and 2 herein had entrusted the toll way work to the respondent Nos.4 to 7. Since, the work had not been carried out in terms of the agreement, the respondent Nos.1 and 2 have exercised the right under the agreement and on taking possession of the material which was laying at the spot, where the project work of improvements of Chikkanayakanahalli-Tiptur-Hassan road was under progress and through the auction notification dated 08.09.2015 have brought the said materials to auction. The petitioner herein claiming to have right over the crushed stone jelly which was stocked at the spot is before this court assailing the said order of auction, seeking the payment of the amount due to the petitioner under the agreement.
3. The respondents have filed their statement of objections opposing the petition.
4. Reference is made to the contract entered into between the petitioner and respondent Nos.4 to 7 and in that light I have referred to an Article 36.4 of Concession Agreement where under the respondent No.1 has reserved the right to take all the assets and dispose of the same in accordance with law in the event of there being non- performance of the terms of the contract work by the contractors, to whom the work had been entrusted by the respondent Nos.1 and 2. Since, the respondent Nos.4 to 7 have not performed the work and the dispute has arisen in that regard, keeping in view of the arbitration clause contained, a proceedings in A.A.No.641/2015 was filed and an injunction order is passed against the respondent Nos.4 to 7 from removing the assets stocked at the spot. On taking into consideration the said injunction order, the respondent Nos.1 and 2 herein have taken possession of the assets which were at the spot and the crushed stone and jelly is brought to sale by auction. Though the petitioner in the instant petition seeks to make out a grievance with regard to the sale of crushed stone jelly stocked at the spot by contending that it belongs to the petitioner and the petitioner was under taking the work on behalf of the respondent Nos.4 to 7. However, there is no material on record to indicate the privity of contract between the petitioner and the respondent Nos.1 and 2. If at all, the petitioner has any grievance and relief is to be claimed it is only against the respondent Nos.4 to 7, if they have entered into any inter-se contractual agreement, among themselves and such relief is to be claimed in the appropriate proceedings.
5. The petition averment indicates that the petitioner has in fact filed a suit in O.S.No.18/2014 against the principal contractors namely the respondent Nos. 4 to 7. If at all the petitioner has in that regard any right to succeed certainly all contentions urged by the petitioner in the said proceedings will be available. However, at this point, when the petitioner is raising the grievance in the writ petition relating to the auction proceedings and in that regard when the respondent Nos.1 and 2 have exercised their contractual right as against the respondent Nos.4 to 7 as seen from the clause contained in Article 36.4 of Concession Agreement, this court would not be justified in interfering with the auction initiated by the respondent Nos. 1 and 2. Therefore, leaving it open to the petitioner to avail the remedies in accordance with law, the instant petition stands disposed of.
Since, the respondent No.3 is served and unrepresented. The learned Government Advocate to accept notice and file memo of appearance in four weeks from the date of receipt of a copy.
Sd/- JUDGE DL