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The National Health Mission (Aarogyakeralam) v. Asian Constructions

Kerala HC5 Jul 2021WA/749/2021

Case brief

AI extract

What is this about?

The High Court dismissed a writ appeal challenging an interim order directing the appellant to pay the petitioners for construction work. The main issue was the single Judge's failure to adjudicate liability before enforcing payment on a non-contracting party.

What did the court decide?

The interim order dated 23.3.2021 directing the appellant to make payment to the writ petitioner was set aside.

The National Health Mission (Aarogyakeralam)… — Civil Procedure and Limitation | Kerala HC (2021)

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W.A.NO.749 of 2021 1

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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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MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943

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WA NO. 749 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 24295/2020 OF HIGH COURT OF

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KERALA, ERNAKULAM

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APPELLANT/FOURTH RESPONDENT:

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THE NATIONAL HEALTH MISSION (AAROGYAKERALAM) REPRESENTED BY ITS STATE MISSION DIRECTOR, NHM BUILDINGS, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, PIN695035.

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BY ADV SHRI.M.AJAY, SC, NATIONAL HEALTH MISSION

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RESPONDENTS/PETITIONER, RESPONDENTS 1 TO 3:

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1 M/S.ASIAN CONSTRUCTIONS VADAKEVILA P.O., KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, S.LEELAKRISHNAN, PIN-691010.

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2 THE CHAIRMAN & MANAGING DIRECTOR,

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THE BHARATH SANCHAR NIGAM LIMITED, CORPORATE OFFICE, SANCHAR NIGAM LIMITED BHAVAN, NEW DELHI, PIN-110001.

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3 THE BHARATH SANCHAR NIGAM LIMITED (A GOVERNMENT OF INDIA ENTERPRISES), REPRESENTED BY THE CHIEF GENERAL MANAGER, KERALA CIRCLE, THIRUVANANTHAPURAM, PIN-695002.

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4 THE EXECUTIVE ENGINEER (C),

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THE BHARATH SANCHAR NIGAM LIMITED, CIVIL DIVISION, KOLLAM, PIN-691012.

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ADV.SRI.T.M.CHANDRAN FOR R1

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ADVSRI.MATHEWS K. PHILIP, STANDING COUNSEL FOR R2 TO R4

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.NO.749 of 2021

JUDGMENT

SHAJI P.CHALY,J

Appellant, the 4^th respondent in W.P.(C) No.24295/2020 has preferred this

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appeal, challenging the interim order passed by the learned single Judge dated 23^rd March, 2021 whereby a direction was issued to the appellant to pay an amount of Rs.38,50,643/- to the writ petitioner/1^st respondent. It is observed thereunder that the direction is issued only because of the fight between the BSNL and the appellant, and the appellant happened to be the beneficiary of the construction carried out by the writ petitioner and further that there is no dispute with respect to the work carried out by the writ petitioner - 1^st respondent.

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The subject involved in the writ petition is in regard to a construction carried out by the writ petitioner on the basis of a contract agreement executed by and between the BSNL – the 2^nd respondent and the writ petitioner. The main contention made in the writ petition is that the construction was carried out by the writ petitioner for the benefit of the appellant. It is an admitted fact that there is no privity of contract by and between the appellant and the writ petitioner. It is true it is submitted in the writ petition that the BSNL has entered into contract with the writ petitioner for and on behalf of the appellant. Therefore, according to the writ petitioner, unless and until payment is effected by the appellant to BSNL, the BSNL would not make the payment due to the petitioner. Anyhow from the reliefs sought for in the writ petition it is clear that the writ petitioner has sought for a writ of

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W.A.NO.749 of 2021

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mandamus or any other appropriate writ commanding respondents 1 to 3 i.e., the Chairman and Managing Director, BSNL, New Delhi, BSNL, represented by the Chief General Manager, Kerala Circle, Thiruvananthapuram and the Executive Engineer © BSNL, Civil Division, Kollam respectively alone to make the payment. It is thus challenging the legality and correctness of the interim order, the appeal is preferred.

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We have heard Sri.M.Ajay for the appellant, Sri. Mathews K. Philip for BSNL and Sri.T.M.Chandran for the writ petitioner/1^st respondent and perused the pleading and materials on record.

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The paramount contention advanced by the learned counsel for the appellant

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was that the appellant had filed a detailed counter affidavit disputing the liability to make any payment to BSNL on account of the contract in question, however, the learned single Judge has failed to take into account the facts and figures and has

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simply directed the appellant to make the payment even without adjudicating the liability of the appellant to make payment to BSNL. It was also contended that since there is no privity of contract by and between the appellant and the writ petitioner, the learned single Judge was not right in directing to pay the money to the writ petitioner. It was also contended that there is no amount due from the appellant to the BSNL. Therefore, it was contended that the interim order passed by the learned single Judge requires interference being one passed without exercising the discretionary jurisdiction properly and therefore, the order is illegal.

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Learned counsel for BSNL on the other hand submitted that even though

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W.A.NO.749 of 2021

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substantial amounts are paid by the appellant still amounts are due on account of the electrification works carried out by the writ petitioner and therefore, there is no illegality in the order passed by the learned single Judge. Learned counsel for the writ petitioner submitted that the work was undertaken by the writ petitioner through a contract entered into with the BSNL and in the contract it is clearly covenanted that the work was being carried out for and on behalf of the appellant and therefore, unless and until the payments are effected by the appellant, the beneficiary of the building, BSNL would not be in a position to make payment to the writ petitioner and viewed in that manner, no interference is called for in the interim order passed by the learned single Judge.

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We have analysed the arguments advanced by the learned counsel on either side. It is an admitted fact that there is no privity of contract by and between the appellant and the writ petitioner. It is significant to note that the writ petitioner has not sought any relief against the appellant even though in the statement of facts the terms and conditions of the contract are narrated. It is also clear from the records available before us that the appellant has disputed the liability of making any payment to BSNL. Therefore, according to us, without first understanding the actual liability due from the appellant to BSNL, it may not be proper to direct the appellant to make the payment to the writ petitioner.

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The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights, impose obligations or create any liability upon

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W.A.NO.749 of 2021

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any person who is not a party to a contract. It may be true, by virtue of the contract by and between the appellant and the BSNL payments may be due but that by itself may not be a ground to direct the appellant who is a third party to the contract to make payments to the writ petitioner.

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Thinking so, we are of the considered opinion that the learned single Judge was not right in directing the appellant to make payments to the writ petitioner/1^st respondent and therefore, interference is required to the interim order of the learned single Judge. Accordingly, we set aside the interim order of the learned single Judge dated 23.3.2021.

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The writ appeal is allowed and leave open the liberty of the writ petitioner or any other party to the proceedings to move the learned single Judge for early hearing of the writ petition. We make it clear that the findings and observations are made to arrive at a just and reasonable conclusion, which will not stand in the way of the learned single Judge adjudicating the issues raised in accordance with law.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

smv

The National Health Mission (Aarogyakeralam) v. Asian Constructions

Case brief

What is this about?

What did the court decide?

The National Health Mission (Aarogyakeralam) v. Asian Constructions

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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