1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 336 OF 2000 ... M/s.Divya Enterprises ...Petitioner v/s. Municipal Corporation of Gr.Bombay and ors. ...Respondents ... Mr.P.K.Samdhani, Sr.Advocate with Mr.Chetan Kapadia i/b Kishor Thakurdas & Co. for the Petitioners. Mr.A.Y.Sakhare, Sr.Advocate with Ms.S.M.Modle for Respondent No.1. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 15th October, 2009 P.C.: 1. The Petitioner by this petition seeks a direction to the Respondent-Corporation to release 5% incentive amount to the Petitioner. 2 2. The facts which are relevant are that the Petitioner was awarded a contract for supply of vehicles for removal of debris. The term on the basis of which the present petition has been filed is condition No.18 of the Instructions to Tender. It reads as under:- 18. If the Contractors supply the vehicles as per the quota and make stipulated trips with requisite number of labourers continuously for a period of six months, they will be given incentive of 5% on the monthly bills. However, grant of incentive will be scrutinised at the level of Chief Engineer (S.W.M.) 3. According to the Petitioner, the Petitioner has supplied the vehicles as per the quota and has made stipulated trips with requisite number of labourers continuously for a period of six months and therefore, the Petitioner is entitled to 5% incentive on the 3 monthly bills. The Petitioner in the petition claims that the Petitioner successively removed the quantity of debris from the Ward , therefore, as per the condition quoted above, the petitioner became eligible for 5% incentive on the monthly bills. The Petitioner also claimed that the Petitioner has supplied regularly vehicles as per the indents made by the Respondent and has been making stipulated trips continuously by using lorries of 8 to 10 Cubic Metre in size. 4. This position is disputed by the Respondent-Corporation. The Respondent has filed an affidavit, wherein it has been stated that the Petitioner is not entitled to incentive. It is stated that not only that the Petitioner did not supply the vehicles for removal of debris as per the contract, 4 but the Petitioner also committed breach of the contract on several occasions, with the result penalty was imposed on the Petitioner and the penalty was recovered from the amount payable to the Petitioner and the Petitioner never made any grievance about it. 5. This position stated in the affidavit of the Respondent that the Petitioner committed breach of the contract on several occasions, as a result of which penalty was imposed on it is not disputed by the Petitioner. The only submission made by the learned counsel for the Petitioner is that after the chart at Exh.A of the Affidavit of the Respondent-Corporation is perused, it is clear that the period from 1-12-1991 to 31-7-1996 there is no penalty imposed on the Petitioner and therefore, according to the learned Counsel as per Condition 18 of the 5 Tender the Petitioner is entitled to incentive. 6. In our opinion, the submission is not well founded. Firstly, the chart merely shows that during the aforesaid period no penalty was imposed on the Petitioner. It does not rule out possibility of there being slight deviation in the performance of the contract. In our opinion, for being entitled to incentive, the Petitioner will have to show positively that the Petitioner made supply as per the Condition No.18. We further find that the Petitioner is not entitled to any relief which is in the discretion of the Court, because the Petitioner is guilty of not only suppressing the fact that the penalty was imposed on him on several occasions, but he is also guilty of making false statement in the petition. In the petition, the Petitioner 6 makes a positive statement that he performed the contract as per the terms of the contract. That position is found to be incorrect as per the affidavit filed by the Corporation. 7. In this view of the matter, therefore, in our opinion, even assuming that technically the Petitioner is correct, the Petitioner would not be entitled to any relief in the extra ordinary jurisdiction of this court for suppressing relevant facts and making false statement on oath. Petition, therefore, liable to be dismissed. It is accordingly dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)