Dismissed

The Greater Cochin Development Authority (Gcda) v. National Trading Company

Kerala HC16 Sept 2020WA/1219/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this writ appeal filed by the Greater Cochin Development Authority against an interim order directing it to pay an admitted contractual amount to a supplier. The court held that the Single Judge did not commit any illegality in allowing interim relief for the admitted sum, finding no strong case for interference.

What the court decided

AI extract

The Greater Cochin Development Authority (Gcda) Vs… — Specific Performance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942

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WA.No.1219 OF 2020

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AGAINST THE ORDER DATED 28.2.2020 IN WP(C)3376/2020(V) OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENT:

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THE GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) KADAVANTHRA, COCHIN-682 020, REP. BY ITS SECRETARY.

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BY ADV. SMT.MINI.V.A.

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RESPONDENT/PETITIONER:

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NATIONAL TRADING COMPANY

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HEAD OFFICE 39/6349, CHELOOR BUILDING, RAVIPURAM, ERNAKULAM-682 016, REP. BY ITS MANAGING PARTNER SREEPRASAD, AGED 52 YEARS, S/O.K.SREEKUMARAN.

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R1 BY ADV. SRI.BLAZE K.JOSE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.1219 OF 2020

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JUDGMENT

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Dated this the 16^th day of September 2020

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Instant writ appeal is filed by the appellant/Greater Cochin Development Authority challenging the interim order dated 28.2.2020 in W.P.(C)No.3376 of 2020, by which a learned Single Judge has directed the appellant to disburse the admitted amount of Rs.33,46,700/- as per Ext.P6 to the writ petitioner provisionally.

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Short facts leading to the filing of this writ appeal are as follows: Writ petitioner/National Trading Company is a partnership firm engaged in the business of dealership of electrical items of Philips Electronics India Limited. The writ petitioner was authorised to channel partner of Philips Electronics India Limited at Ernakulam. During October 2017, FIFA under 17 World Cup 2017 was scheduled at Ernakulam. The authorities of the FIFA, found that the stadium was originally designed for Cricket and the lighting was not suitable as per the guidelines of the FIFA and therefore, there was need for urgent supply of 270 number of lamps in order to meet the FIFA standards. These lamps are special lamps used for sports application where there was HD video recording, since the colour of the object matters a lot during the telecast. The FIFA under 17 World Cup 2017 was about to commence on 7.10.2017 and in the last moment on 29.9.2017, the appellant/respondent (GCDA) on an emergent basis placed an order for 270 lambs by e-mail on the mutually agreed rates. As per the terms and

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W.A.No.1219 OF 2020

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conditions of the writ petitioner and the Philips Electronics India Limited, all payments are to be made in advance before the supply.

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Since it was an emergent situation for supply and installation and due to upcoming holidays, as per letter dated 29.9.2017, the appellant/respondent (GCDA) requested to make immediate arrangement to deliver the materials to Kochi and agreed to pay the contract amount of Rs.45,55,980/- as per the purchase order on the next working day i.e. 3.10.2017 by DD, NEFT or RTGS. But the appellant/respondent has failed to make the payment and was prolonging the disbursement of the amounts stating that they are not bound to pay the GST and therefore the GST amount should be deducted from the invoice.

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Being aggrieved by the non disbursal of the contractual amount of Rs.45,55,980/- in connection with supply of floodlight system at the appellant/respondent's Stadium at Kaloor in connection with FIFA under 17 World Cup 2017, which was agreed to be paid on the next working day i.e. 3.10.2017 and refusal to pay the GST, which is already remitted by the petitioner at the time of raising the invoice, the writ petitioner/respondent approached this court by filing writ petition.

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Ext.P3 tax invoice (Credit Bill) issued by the respondent/writ petitioner on 3.10.2017, the GST to be paid by the appellant/respondent is Rs.6,94,980/- (CGST Rs.3,47,490/- and SGST Rs.3,47,490/-). Ext.P6 report dated 30.11.2018 of the Executive Committee [meeting conducted on 26.7.2018 under the Chairmanship of Hon. Chairman] that the appellant has

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decided to disburse an amount of Rs.33,46,700/-, deducting an amount of Rs.5,00,000/- and also the GST amount which has been already paid by the writ petitioner. But according to the writ petitioner, he is entitled to the whole amount as agreed by the respondent to be paid. More than 2¹ /2 years have now elapsed and no payments were made.

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Writ petitioner has sought for a writ of mandamus commanding the respondent/appellant to pay the amounts due to the petitioner as per Exts.P1 and P3 forthwith. Another relief sought for in the writ petition is for mandamus commanding the respondent to release the admitted amounts to the writ petitioner pursuant to Exts.P1, P3 and P6 forthwith.

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Adverting to the pleadings and submissions, a learned Single Judge passed an interim order on 28.2.2020 in W.P.(C)No.3376 of 2020, by which the appellant was directed to disburse the admitted amount of Rs.33,46,700/-, as per Ext.P6, to the writ petitioner/respondent, provisionally.

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Aggrieved by this, instant writ appeal is filed contending, inter alia, on the following grounds:

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“A. The interim order passed by the learned Single Judge by allowing the alternate prayer of the writ petition is without appreciation of facts and law on the point and hence liable to be set aside.

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B. The learned Single Judge ought to have seen that a writ petition is not maintainable when the facts of case discloses that there the dispute is based on a contractual obligation and hence there is well established procedure of law and hence the writ remedy is not applicable, payment of dues, and the appellant disputed the amount claimed by the respondent, the learned Single Judge ought not have passed orders invoking Article 226 of the Constitution of India.

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C. The learned Single Judge ought to have seen that the remedy available for the respondent for breach of contract is to approach the competent civil court for adjudication of the

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dispute. This Honourable Court under Article 226 of the Constitution of India cannot sit in evidence to arrive at a decision as to what amount is to be disbursed to the respondent herein on the basis of the contract entered into between the appellant, a statutory body and the petitioner. The remedy under Article 226 of the Constitution of India is a public law remedy which cannot be resorted to in a case wherein the respondent alleges that there is breach of contract.

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D. the writ jurisdiction under Article 226 can be invoked only if there is violation of fundamental rights, arbitrariness or violation of principles of natural justice.”

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Ms.Mini.V.A., learned counsel for the appellant/respondent (GCDA) contended that as the dispute is based on a contractual obligation, the remedy available for the respondent, for breach of the contract is to approach the competent civil court for adjudication of the dispute. She further submitted that the remedy under Article 226 of the Constitution of India is a public law remedy, which cannot be resorted to in a case wherein the respondent alleges that there is breach of contract. In support of the above contention, she relied on a decision of the Hon'ble Apex court in Utharanchal Forest Development Corporation and Others v. Jaber

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Singh and others reported in 2007 (2) SCC 112, 2007 KHC 3047 wherein, it was held that a writ petition under Article 226 of the Constitution of India should not be entertained when a statutory remedy is available to the petitioner/respondent unless exceptional circumstances as held by the Hon'ble Apex Court. She further submitted that the respondent/writ petitioner has not furnished the agreement as requested by the appellant.

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W.A.No.1219 OF 2020

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Per contra, learned counsel for the respondent/writ petitioner contended that on an emergent basis the appellant placed an order for 270 lamps by e-mail on the mutually agreed rates. As per the terms and conditions of the appellant and the Philips Electronics India Ltd., all payments have to be made in advance before the supply. Since there was an emergent situation for supply and installation, and due to upcoming holidays, as per letter dated 29.9.2017, the appellant/respondent (GCDA) requested to make immediate arrangement to deliver the materials to Kochi and agreed to pay the contract amount of Rs.45,55,980/- as per the purchase order, on the next working day i.e. 3.10.2017 by DD, NEFT or RTGS. Therefore, the respondent cannot now turn around and refuse to pay the agreed amounts on baseless contentions.

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Learned counsel appearing for the respondent/writ petitioner further submitted that the writ petitioner is entitled to the whole amount, as agreed to by the appellant/respondent to be paid. More than 2¹ /2 years had elapsed and no payments have been made till date. The writ petitioner is entitled to the admitted amounts due and the appellant/respondent cannot compel the writ petitioner to issue new invoices for the amounts unilaterally fixed by the respondent. Having acted on the basis of the promise, the appellant/respondent is barred by the principles of promissory estoppel from refusing to pay the legally due amount. It is also contended by the learned counsel for the respondent/writ petitioner that the respondent which is a statutory authority cannot refuse to pay the GST amounts. According to the

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W.A.No.1219 OF 2020

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learned counsel for the respondent/writ petitioner, if at all the appellant/respondent is entitled to any exemption under the GST, they are bound to make necessary application for refund of the GST amount paid by the writ petitioner, in the GST number of the respondent. He further submitted that as the agreed amount as per Ext.P1, dated 29.9.2017, Rs.45,55,980/- the demand of the appellant, compelling the respondent/writ petitioner to execute an agreement for Rs.33,43,700/- is contrary to Ext.P1. It is his further contention that the writ court has only directed the agreed amount to be paid, and there is no illegality in the interim order warranting interference.

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Heard the learned counsel for the parties and perused the material available on record.

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Letter issued by the appellant/respondent dated 29.9.2017 (Ext.P1 in writ petition) reads as under:

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GREATER COCHIN DEVELOPMENT AUTHORITY

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P.B.No.2012 Phone:2205061 FAX 91484206230 Kochi-682 020

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No.7093/E2/2017/GCDA Dated 29.9.2017 From The Secretary To Mr.D.Udayakumar General manager Philips Electronics India Limited Central Lighting Application Services C-47, Sector 57 Noida – 201 301

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Sir,

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Sub: GCDA-Engg. Department-Supply of MSTER MHN-SA 200W/ 956400V XWHO UNP/1-270 Nos. Confirmation - Reg

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Ref: Your communication dated on 28.9.2017

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Referring to the above, we agreed to you proposal for the supply of MASTER MHN-SA 200W/956 400V X WHO UNP/1-270Nos at the rate specified in the letter, in connection with the FIFA U 17 World Cup 2017. We will pay the contract amount Rs.45,55,980/- on the next working day, ie, October 3^rd Tuesday by DD, NEFT or RTGS. Please make immediate arragement to deliver the materials to Cochin, Kerala.

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Thanking you,

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Yours faithfully, Secretary

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As rightly contended by the learned counsel for the respondent, it is evident from Ext.P1, the appellant had agreed to the proposals for the supply of lamps in connection with the FIFA under 17 World Cup 2017. Appellant has agreed to pay the contract amount of Rs.45,55,980/-, on the next working date i.e., 3.10.2017 by DD, NEFT or RTGS. Appellant has requested immediate delivery of the lamps, which has been done. As per Ext.P1 letter dated 29.9.2017, the contract amount is Rs.45,55,980/-.

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Ext.P6 decision of the Executive Committee dated 30.11.2018 reads as under:

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Decision of the Executive Committee

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File Number F2/7093/17/GCDA Dated 30.11.18

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Decision No.154/2018-19

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It has been decided as under after detailed discussion of the subject. (1) FIFA Authorities insisted in the 11^th Task Force meeting that for conducting FIFA under 17 World Cup at Kaloor International Stadium the head light should have atleast 2000 lux. As per the report during the conduct of ISL only 1407 lux alone was obtained. Though preventive maintenance were done on 27.9.2017, 2000 lux as demanded by the FIFA has not been obtained. Since the FIFA competitions have to be conducted during October itself and LOC Infrastructure Manager, FIFA

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team along the Philips company have examined the lights and suggested to replace the bulbs for getting the luminous intensity as insisted by FIFA, it has been decided to approve the action of giving tender to the Philips Company without inviting National/International Tender.

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(2) Since there is difference in the rates quoted for one bulb by the Philips Company and the quotation given by the Technical Advisor of the Authority Sri.Suresh Sathyan on 30.9.2017, Sri.Vidyadharan from the panel of Electrical Engineers of the Authority was instructed to examine the issue and file a report. The said Vidyadharan after studying the photograph of the flood light and flood light fitting arrangement on 26.9.2018 reported as under:

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The lamp Italian made shown in the quotation mail dated 30.9.2017 from INECS Kollam East, Kerala addressed to Mr.Sujesh Satyan, GCDA, Cochin is not suitable in the existing fittings Arena Vision MVF 403 MHN 2000W/956 A2 SIAM.

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The only suitable bulb/lamp is MASTER MHN SA 2000W/956 400 VX WHOUMP/1 where in 270 numbers of the above mentioned bulbs have been replaced in the existing fittings (Arena vision MVF 4.03 MHN SA 2000 W/956 A2 SI AM)

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On the basis of the above report of the member of Electrical Panel and also on the basis of the meeting conducted on 26.7.2018 under the Chairmanship of Hon.Chairman, it has been decided to pay an amount of Rs.33,46,700/- after executing an agreement.

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Sd/Chairman

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Sd/Secretary

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It is evident from Ext.P6 report of the Executive Committee dated 30.11.2018 that the appellant has decided to pay a sum of Rs.33,46,700/-. Though it is contended by the learned counsel for the appellant, after the event was over, the cost of the bulb was reduced and thus the revised

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amount was arrived at and GST amount was to be paid by respondent and hence there is a dispute, and in the abovesaid circumstances, writ petition is not maintainable, it is evident from Ext.P6, GST amount has been credited in the account of the appellant. The question as to whether the GST amount has to be paid by the respondent/writ petitioner once again has to be decided by the writ court. Whatever be the disputes, the issue as to whether the above amount represents the full and final settlement or not, is a matter to be decided by the writ court. But the fact remains that the appellant has agreed to pay the above amount. The writ court has only directed the appellant to remit Rs.33,46,700/- to the writ petitioner provisionally. Eventhough learned counsel for the appellant has raised various contentions seeking interference of this court to set aside the impugned interim order, we do not find a strong case even for admission of the writ appeal. We find no illegality or irregularity in the view taken by the learned Single Judge.

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Accordingly, writ appeal is dismissed.

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SD/- S.MANIKUMAR CHIEF JUSTICE

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SD/- SHAJI P. CHALY JUDGE

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The Greater Cochin Development Authority (Gcda) v. National Trading Company

Case brief

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The Greater Cochin Development Authority (Gcda) v. National Trading Company

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