THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.22256 of 2011 Dated 08th August, 2011 Between: D.Nageswaraiah …Petitioner And The Government of A.P., Irrigation and Command Area Development Department, rep.by its Principal Secretary, Secretariat Buildings, Hyderabad and others …Respondents Counsel for the petitioner: Sri K.Rathanga Pani Reddy Counsel for respondents: AGP for Irrigation & CAD The Court made the following: ORDER: This writ petition is filed for a mandamus to set aside letter bearing No.EE/TGP/NDL/TW/TO/F-5/2187, dated 18.07.2011, of respondent No.4, whereby he sought to recover a sum of Rs.2,58,820/- from the petitioner under agreement No.4/2007-2008/EE/TGP/NDL, dated 21.09.2007, as illegal, arbitrary and unconstitutional. I have heard Sri K.Rathanga Pani Reddy, learned counsel for the petitioner, and perused the record. The petitioner is a Class-III Civil Contractor, who entered into an agreement with the respondents for execution of flood damage works under Telugu Ganga Project Main Canal, on nomination basis. An agreement was entered into by respondent No.4 with the petitioner on 21.09.2007, under which, the works were executed. It is the case of the petitioner that he has commenced the work and completed the same within the stipulated time and final bill was paid on 29.10.2007. According to the petitioner, the defect liability period, which was 24 months, has also expired by 30.10.2009. When the petitioner sought for release of EMD and FSD amounts, the same were not released. The petitioner has therefore made a written representation on 27.06.2010, upon which, respondent No.4 has issued the impugned letter by stating that respondent No.1 has instructed to effect recoveries to the tune of Rs.2,58,820/-, which was allegedly paid in excess and that after deducting FSD and EMD of Rs.48,726/-, which were forfeited, the petitioner was called upon to pay the balance sum of Rs.2,58,820/-. The learned counsel for the petitioner strenuously contended that the respondents have acted in the most arbitrary manner by declining to refund FSD and EMD amounts and also issuing the demand notice for recovery of the sum of Rs.2,58,820/- on the purported ground of excess payment. The learned counsel further submitted that the impugned proceedings are in flagrant violation of the principles of natural justice, as the same was not preceded by a notice and an opportunity of being heard. I have carefully considered the submissions of the learned counsel for the petitioner. The law is well settled by a long line of judgments commencing from Radha Krishna Agarwal v. State of Bihar[1] and State of U.P. v. Bridge & Roof Co. (India) Ltd.,[2] wherein the Apex Court has held that disputes arising under commercial contracts cannot ordinarily be entertained by the High Courts under Article 226 of the Constitution of India even where one of the contracting parties is the State or its instrumentalities. The learned counsel for the petitioner has, however, placed reliance on the judgments of the Supreme Court in Sanjana M.Wig (Ms.) v. Hindustan Petroleum Corporation Limited[3] and Godavari Sugar Mills Ltd., v. State of Maharastra[4], to buttress his submission that in cases where the action is patently arbitrary, the aggrieved party can invoke the jurisdiction of this Court under Article 226 of the Constitution of India. In my opinion, in cases arising under the commercial contracts, it is more appropriate that the aggrieved party invokes common law remedies as it serves two purposes, namely, (1) that the procedure followed by the competent civil Courts relating to receiving the evidence - both oral and documentary; will be conducive for adjudicating the disputes that may arise under the Contract and (2) that the Constitutional Courts will not be flooded with the litigation, which in ordinary course will be adjudicated by the competent civil Courts. This is more on account of self-regulatory intention that this general rule is laid down rather than as a rule of law. The judgments in ABL International Ltd., v. Export Credit Guarantee Corporation of India Limited[5], Sanjana M.Wig (Ms) and Godavari Sugar Mills Ltd., (1 and 2 supra) are all exceptions to this general rule. Unless the aggrieved party makes out a case of exception to this general rule, this Court would not entertain a writ petition arising under a purely commercial contract merely because one of the contracting parties is the State. In my opinion, whether recovery for excess payment is justifiable or not is a dispute which falls squarely under the contract and the same needs to be adjudicated with reference to the agreement conditions and any other legal precepts that may be applicable to the contract. In this view of the matter, I do not find any reason to entertain this writ petition and the same is accordingly dismissed. The petitioner is entitled to approach the competent civil Court for redressal of his grievance. As a sequel to dismissal of the writ petition, W.P.M.P.No.27147 of 2011 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 08th August, 2011 VGB [1] AIR 1977 SC 1496 [2] (1996) 6 SCC 22 [3] (2005) 8 SCC 242 [4] (2011) 2 SCC 439 [5] (2004) 3 SCC 553