Dismissed

M/s Balram Kumar v. The Power Grid Corporation India Ltd. and Ors.

Patna HC13 Oct 2014CWJC/420/2014

Case brief

AI extract

What is this about?

The petitioner, a government contractor, filed a writ petition seeking payment of outstanding dues totaling Rs. 21 lakhs from Power Grid Corporation. The respondents admitted a disputed amount of Rs. 6.18 lakhs, citing outstanding invoices and contract terms. The court held that since the claim involved a dispute covered by an arbitration clause, the writ application was not maintainable.

What did the court decide?

Writ application dismissed; liberty granted to invoke arbitration remedy under the agreement for dispute resolution.

M/s Balram Kumar Vs The Power Grid Corporation India Ltd. and Ors. — Arbitration | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.420 of 2014

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====================================================== M/s Balram Kumar ( Government Registered Contractor) C/O Prof. Rakesh Kumar Singh, At Kapasiya, P.O- Refinery Township, District- Begusarai through its Manager Dharamjay Kumar S/O Madan Mohan Singh C/O Sakaldeo Prasad Singh, Mandir Wali Gali Ram Nagri, Sector-II, OppAshiana Nagar, Phase-1, Gate No. 3, Patna- 800025 .... .... Petitioner/s Versus 1. The Power Grid Corporation India Ltd. through the General Manager (Telecom) Eastern Regional Telecom Control Centre, Kolkata, West Bengal. 2. The AGM (Telecom), Power Grid Corporation of India Ltd., Kolkata. 3. The G.M. Telecom, Power Grid Corporation of India Ltd., Alankar Place, Boring Road, Patna. 4. The A.G.M. ( Telecom), Power Grid Corporation of India, Ltd., Alankar Place, Boring Road, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Pramod Kumar, Advocate. For the Power Grid : Mr. Janardan Prasad Singh, Sr. Advocate. Mr. Arind Kumar Singh, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT

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7 13-10-2014 Heard learned counsel for the parties.

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The prayer made by the petitioner in this writ

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application reads as follows:

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"1(a) For issuance of an appropriate writ/order/direction commanding the Respondents to forthwith pay the outstanding bill of Rs. 21 lakhs for the work of patrolling and Maintenance work of Patna Intercity, Patna Biharsharif intercity and Varanasi Intercity network for the period from 16.01.09 to 15.04.2009.

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(b) For issuance of an appropriate writ/order/direction commanding the Respondents to pay interest on the dues amount at the rate of 18% per annum."

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Learned counsel for the petitioner has submitted that

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the amount of Rs. 21 lakhs is still outstanding for the work done

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by the petitioner in relation to completion of the contract assigned

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Patna High Court CWJC No.420 of 2014 (7) dt.13-10-2014

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to the petitioner by the respondent authorities of the Power Grid Corporation of India Ltd. (hereinafter referred to as 'the PGCIL').

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In this case, a counter affidavit has been filed and paragraph nos. 13 to 16 thereof, being relevant, are quoted herein below:

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"13. That it is stated and submitted that as per joint measurement chart total work executed value is Rs. 80,76,444.20 whereas payment has been made of Rs. 67,00,698.50 and payment of Rs. 7,57,184.00 has been hold against security deposit. It is further submitted that payment of Rs. 6,18,561.00 as per Joint measurement chart of breakdown maintenance for the period 16.01.2009 to 15.07.2009 is ready for release. Disputed value is Rs. 6,22,818.00 only. It is necessary to make clarification in regard to disputed value. Quantity for Routine Maintenance Annexure-A inclosed with LOA) was not considered for the period of 16.01.2009 to 15.04.2009 in the Amendment-II & Amendment-III & final as M/s Balram Kumar (Petitioner) has not done the said work in the above period only breakdown maintenance of under ground optical Fibre cable network was carried out by the petitioner during the above period on case to case basis, as no contract was in existence (inplace) at that time. It is also relevant to mention here that the Final Amendment is accepted by the petitioner and accordingly payments were made and the petitioner had not executed patrolling and placed any dedicated team for the said period and hence he was not submitted any patrolling & team details and accordingly no (JMC) Joint measurement Chart had been signed for the said 3 months.

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14. That invoice (Final Bill) No. BK Maintenance/200809/08, dated 21.12.2009 amounting to Rs. 6,18,561.00 pertaining to break down maintenance charges for the period 16.01.2009 to 15.07.2009 is pending due to non acceptance of final bill by M/s Balram Kumar. POWERGRID had requested M/s Balram Kumar vide letter Ref. E/Kol/WO-44/1012 dated 03.05.2010. Reminder-I dated 11.08.2010 and Reminder -II 06.06.2013 to sign & accept the final bill for releasing the payment & subsequently to close the contract. But M/s Balram Kumar has not responded till date.

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15. That only Final Bill amounting to Rs. 6,18,561.00 is pending and Security deposit of approx. Rs. 7,57,184.00 is retained by POWERGRID as per payment terms of contract, which will be released after payment of final bill. The same is pending due to non acceptance of final bill by M/s Balram Kumar (Petitioner).

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16. That in view of the above facts and circumstances it is evident that payments are pending/delayed solely due to non response from M/s Balram Kumar in spite of accepting the

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Patna High Court CWJC No.420 of 2014 (7) dt.13-10-2014

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terms of LOA & further amendments by them. Hence, M/s Balram Kumar may be advised to Sign & accept the final bill alongwith contract closing documents to enable POWERGRID for release of balance payments and subsequently close the contract."

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Learned counsel for the petitioner, being fully aware of the aforesaid stand taken by the respondents, which would mean that there is a dispute with regard to claim of the petitioner and the same at least is not an admitted amount as has been claimed in the writ application, has tried to rely on the statement made in paragraph no. 5 to the reply to the counter affidavit, which for the sake of clarity and convenience, is also

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quoted hereinbelow:

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"5. That it is respectfully stated and submitted that from perusal of paragraph No. 13 of the counter affidavit, it is evident that the Respondents accepted that the dispute value is Rs. 6,22,818.00 only but denied his liability for making payment saying that quantity for Routine Maintenance (Annexure-A with LOA) was not considered for the period of 16.01.2009 to 15.04.2009 in the Amendment-II and Amendment-III as the petitioner has not done the said work in the above period only breakdown maintenance of under ground optical Fibre cable network was carried out by the petitioner during the above period.

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In this context the petitioner humbly submits that the aforesaid stands of Respondents for not making payment is nothing but shows their cleverness in grabbing the hard earned money of the petitioner as it would be evident from the Annexure-A page-26 column-C annexed with the counter affidavit the breakdown maintenance work is absolutely not carried out without the patrolling work."

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The net result, which transpires on reading of the

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aforementioned pleading, is that the PGCIL is admitting only payment of a sum of Rs. 6,18,561.00 whereas the petitioner has claimed payment of Rs. 21 lakhs in the writ application.

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Patna High Court CWJC No.420 of 2014 (7) dt.13-10-2014

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Thus, there being a dispute under the terms of agreement and there being also a provision for resolution of such dispute through arbitration proceeding, this Court, in absence of the claim being admitted by the respondent, would not be in a position to issue any direction for payment of the amount claimed by the petitioner in this writ application. As a matter of fact, the moment, there is a dispute and as the petitioner was also made aware of offering of lesser amount of Rs. 6,18,561.00, the petitioner ought to have relied on the clause of agreement pertaining to resolution of the dispute through arbitration proceeding instead of filing of this ill-advised writ application.

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The Apex Court, in fact, time without number, has repeatedly held that a writ application for enforcing terms of contract and resolution of a dispute covered by the terms of inter parte agreement containing arbitral clause is itself not maintainable. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of H.P.C.L & Ors. vs Super Highway Services & Anr. reported in (2010) 3 SCC 321 and E. Venkant Krishna vs Indian Oil Corporation & Anr. reported in (2000)7 SCC 764.

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That being so, this writ application is disposed of with a liberty to the petitioner to invoke the remedy under the

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agreement by way of arbitration proceeding.

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Nothing said in this order, however, will be used by either party as an opinion of this Court in the matter to be decided in the arbitration proceeding which, of course, will be taken up and decided strictly in accordance with the terms of agreement and the evidence led by the parties.

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(Mihir Kumar Jha, J) Sujit/U

M/s Balram Kumar v. The Power Grid Corporation India Ltd. and Ors.

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M/s Balram Kumar v. The Power Grid Corporation India Ltd. and Ors.

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