IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 WP(C).No. 26111 of 2010(L) -------------------------- PETITIONER(S): -------------------- M/S POPULAR CONSTRUCTION ,17/470 P.T.BUILDINGS, OPPOSITE POLICE STATION, DOWN HILL, MALAPPURAM REPRESENTED BY ITS MANAGING PARTNER, V.ZUBAIR, AGED 36, S/O.VILAN ABDULLA, CHERUPARAMBIL HOUSE,KODUR PO MANGATTUPULAM, MALAPPURAM 676 504 BY ADV. SRI.P.M.POULOSE RESPONDENT(S): ----------------------- 1. M/S ITI LTD. (A GOVERNMENT OF INDIA UNDERTAKING) NETWORK SYSTEM UNIT, ITI BHAVAN DOORVANINAGAR, BANGALORE 560 016,REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR 2. DEPARTMENT OF TTELECOMMUNICATION REPRESENTED BY ITS SECRETARY, MINISTRY OF TELECOMMUNICATION, NEW DELHI-1 3. M/S BHARAT SANCHAR NIGAM LIMITED (A GOVERNMENT OF INDIA ENTERPRISE) REPRESENTED BY ITS GENERAL MANAGER OFFICE OF THE GENERAL MANAGER TELECOM, PALAKKAD , KERALA. ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R3 SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 SRI.S.SUJIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 26111 OF 2010 ===================== Dated this the 18th day of November, 2010 J U D G M E N T The 3rd respondent awarded the work of providing external plant underground cables laying work to the 1st respondent. 1st respondent in turn, awarded the said works to the petitioner as per Exts.P1 and P2 work orders. Petitioner completed the work during 2004. From out of the bills submitted by the petitioner, 1st respondent recovered an amount of Rs.6,35,582/-. Petitioner subsequently made representations seeking the release of the aforesaid amounts. The amount was not released and therefore the writ petition is filed. 2. The stand taken by the 1st respondent is that the work was awarded by the 3rd respondent and the 1st respondent in turn appointed the petitioner as its contractor for completing the work. It is stated that in Exts.P1 and P2 work orders itself, the terms of payment were specified, which inter alia mentioned that running account bills shall be prepared for payment against the work carried out after joint check measurements and that payments will be released to the contractor after receipt of payment for ITI WPC No. 26111/10 :2 : bills for the related portion of the work executed from the BSNL authorities. According to them, it was also stated that the work shall be executed on “back to back basis” arrangement with the BSNL authorities. It is stated that accordingly the running account bills were being submitted and payments were also released to the petitioner. It is stated that subsequently by Ext.P4, the over head charges which were initially fixed at 9% and 4% were refixed at 7.8% and 2.9% for the year 2002-03. But, however for the aforesaid period, over head charges at 9% and 4% respectively were already paid and that the excess payments which were made by BSNL to ITI, which ITI in turn had already disbursed to the petitioner, was recovered by the BSNL in 2004. It is stated that consequent on Ext.P4, when BSNL recovered Rs.6,35,582 towards the excess payment made, the ITI which had already made the excess payment to the petitioner, also recovered the said amount from the running bills submitted by the petitioner to ITI. According to the ITI, such recovery is permissible since the contract itself was on back to back basis. ITI also contended that even subsequent to the recovery effected by it, the petitioner had submitted a no claim certificate giving up its WPC No. 26111/10 :3 : claims against the ITI, and therefore, the belated claim now made by the petitioner is totally impermissible. That apart, according to the ITI, in the contract between itself and the petitioner, there is a clause for arbitration for resolution of disputes, and that, therefore also, the claim now made in the writ petition is unsustainable. It is also contended that the claim pertains to the year 2004, and that, by now, suit also has become time barred in view of the provisions of the Limitation Act, and for that reason also the writ petition claiming the aforesaid payment is unsustainable. 3. Certain facts are undisputed that the petitioner was a contractor appointed by the ITI and that the ITI had effected recovery of Rs.6,35,582 from the running bills of the petitioner. The justification offered by the ITI is that it is entitled to do so since the agreement between the parties is on back to back basis. Therefore, the issue that needs to be decided is whether in terms of the agreement between the parties, the ITI could have effected recovery from the running bills of the petitioner. 4. In my view, this is a disputed question of fact, which is incapable of resolution in a writ petition, and therefore, the appropriate course available to the petitioner is to either pursue WPC No. 26111/10 :4 : his claim before the Civil Court or before an Arbitrator if that be the agreed mode of resolution of dispute between the parties incorporated in the contract between the parties. Therefore, leaving it open to the petitioner to get his claim adjudicated in accordance with law before the appropriate forum, the writ petition is disposed of. ANTONY DOMINIC, JUDGE Rp