SCA/8601/2003 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8601 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JYOTI BUILDERS ENGINEERS & CONTRACTORS - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR KG SUKHWANI for Petitioner(s) : 1, MR VIPUL MISTRY, ASST.GOVERNMENT PLEADER for Respondent(s) : 1 & 4. MS SEJAL K MANDAVIA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 26/09/2008 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India is filed with the following prayers: SCA/8601/2003 2/5 JUDGMENT “A. Your Lordship will be pleased to admit this Petition. B. Your Lordship will be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 to release the FDR No.W42408 dated 19.09.2002 of Rs.2,50,000(Old FDR No.309683 dated 05.04.1999) C. Any other and further relief as may be deemed just and expedient in view of the facts and circumstances of the case be granted.” 2. The petitioner is a proprietary concern carries on business as Engineers & Contractors and having “A” Class registration which was valid up to 31.12.2001, as per the certificate of registration dated 21.08.1999 issued by the competent authority. That for getting the registration in Class “A” the petitioner furnished FDR of Rs.2,50,000/- to Sardar Sarovar Narmada Nigam and copy of the FDR is already annexed with the record. Since the petitioner was not willing to continue as a “A” Class registration member, a request was made to the respondent to release the FDR of Rs.2,50,000/- and even that registration was also valid up to 31.12.2001. Though demand was raised and specific request was made by the petitioner to return the amount of FDR with SCA/8601/2003 3/5 JUDGMENT interest etc., it was withheld by the respondents on the ground that the contract awarded to the petitioner by the R & B Department, District Panchayat, Bharuch for Hansot-Kantiyajal and the Panchayat has to recover Rs.5,95,237-95ps. and the arbitration case is pending. Subsequently, the award was passed in favour of the petitioner and the petitioner filed Execution Petition for executing the award before the learned Civil Judge (S.D.), Bharuch. However, the District Panchayat has preferred an appeal before the competent Court in the year 2002 challenging the award of the Arbitrator. 3. Learned Advocate appearing for the petitioner submits that withholding the amount of Rs.2,50,000/- of the Fixed Deposit Receipts deposited by the petitioner for registration of “A” Class contractor is contrary to law and respondents have no power under any agreement or under any provisions of law available with them to take such action. According to learned Counsel for the petitioner, the award of the Arbitrator is in favour of the petitioner and pendency of appeal before the Court cannot made ground to withhold the amount deposited by the petitioner towards the registration and validity of the said registration was also over by 31.12.2001. 4. Considering the above, the learned Counsel appearing for the petitioner submits that suitable SCA/8601/2003 4/5 JUDGMENT direction be given as prayed for in this petition. 5. Ms Sejal Mandavia, learned Advocate for the respondent No.3 and Mr. Vipul A. Mistry, learned A.G.P. appearing for the respondent Nos.1 & 4, submit that dispute had arisen between the petitioner and the District Panchayat for non-completion of work allotted to the petitioner. Not only that but there is no likelihood of recovering the amount of the petitioner since the petitioner is not in the business any more, and therefore, the FDR of Rs.2,50,000/- paid against the registration in the office of the Executive Engineer, Irrigation Division, cannot be released. 6. Considering the overall facts and circumstances of the case, the fact remains that Rs.2,50,000/- of Fixed Deposit Receipts viz. Narmada Bond was only for registration in “A” category of the contractor and the period and tenure of the above registration was over by 31.12.2001 was over. In view of the above, the respondents were bound under an agreement to return the amount irrespective of continuance of dispute, if any. In the facts of the present case, even for the dispute which arisen between the petitioner and the respondents, the award came to be passed by the Arbitrator in favour of the petitioner and pendency of the appeal against the award cannot be made a ground to deny the petitioner release of the FDR. The above action of the respondent is highly unjust, unreasonable and arbitrary, which deserves SCA/8601/2003 5/5 JUDGMENT to be set right by this Court under Article 226 of the Constitution of India. 7. The petition is allowed. The respondents herein are directed to return the amount of Rs.2,50,000/- deposited by the petitioner towards the F.D.R. Rule is made absolute. (Anant S. Dave, J.) Jani