A dispute relating to interpretation and terms of a contract cannot be a subject matter of writ proceedings: High Court of J&K and Ladakh

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:20.09.2021 Pronounced on:24.09.2021 OWP No.792 2016 M S VENOOS FURNITURE ... PETITIONER(S) Through: Mr. B. A. Bashir Sr. Adv. with Ms. Falak Bashir Advocate. SICOP AND OTHERS …RESPONDENT(S) Through: Mr. S. A. Naik Advocate. Mr. Shakir Haqani Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGMENT Petitioner has filed the instant writ petition seeking a Mandamus against the respondents to release the payment of Rs.83 00 180 in his favour for providing and fixing of wooden frames and shutters for doors windows for lab office Block B wing at SKUAST main campus. The case of the petitioner is that it is a registered small scale industrial unit. Vide communications bearing Nos.SICOP GMP K 11 12 356 57 & SICOP GMP K 11 12 358 59 dated 11.05.2012 supply orders in favour of petitioner were issued by respondent No.1. The petitioner was asked to provide and fix deodar wood frames and shutters for doors windows and conference table set for administrative lecture hall 2 OWP No.792 2016 block at Faculty of Fisheries Rangil for approximate costs of Rs.52 57 151 as also to provide the wooden frames and shutters for doors windows for lab office Block B wing at SKUAST main campus Shalimar for an approximate cost of Rs.83 00 255 . The petitioner completed the work allotted to it under supply order No.SICOP GMP K 11 12 356 57 dated 11.05.2012 and the payment in respect of the said work was also released by the respondent No.1 after receiving written authorization from respondent No.2. It is further averred in the petition that the petitioner also completed its work as regards second supply order i.e. SICOP GMP K 11 12 358 59 dated 11.05.2012 and made repeated requests to the respondents to provide requisite space for dumping the material but all these requests fell on deaf ears and the requisite space was not provided to the petitioner. In this regard petitioner has relied upon communication No.SICOP GMP K 12 2137 38 dated 29.12.2012 and communication No.SICOP GMP K 12 13 2257 60 dated 19.01.2013 of respondent No.1. It is the case of the petitioner that because the respondents failed to provide the space for dumping of material prepared by the petitioner as such it had to dump the same in its shops situated at Dadikadal Srinagar. It is further averred in the petition that whole of this material got damaged in the devastating floods of September 2014 whereafter he served a legal notice upon respondent No.1 asking it to release the payment which it has received from respondent No.2 but of no avail. This according to the petitioner compelled it to file the instant writ petition. 3 OWP No.792 2016 The writ petition has been contested by respondent Nos.1 and 2. Respondent No.1 has admitted the issuance of two purchase orders in favour of the petitioner but it has claimed that the petitioner failed to execute the works relating to second purchase order as a result of which a huge payment had to be released by respondent No.1 in favour of M S Green Line Pvt. Ltd. who executed the work viz. providing and fixing installation of UPVC windows system for lab office block B wing at main campus SKUAST Shalimar. It is contended that the petitioner has approached the Court after more than five years which casts doubt upon the genuineness of its claim. A preliminary objection to the maintainability of the writ petition on the ground that the dispute between the parties is in the realm of contract and as such the same cannot be adjudicated in the writ proceedings has been raised. The respondent No.1 has admitted that the petitioner had informed it about readiness of the material and had requested for providing of dumping space for the material. It has claimed that in this regard no response was received from respondent No.2 to whom the material was to be supplied. It is however contended by respondent No.1 that because no work has at all been executed at site by the petitioner as such it was not entitled to any payment from the respondents. The respondent No.1 has denied the averments of the writ petition pertaining to damage to the material in floods. Respondent No.2 has also contested the writ petition by filing a separate reply. In its reply the respondent No.2 has submitted that purchase order relating to work for providing and fixing of deodar wood 4 OWP No.792 2016 window door system to lab cum office blocwas later on changed and it was replaced by UPVC window system as such there was no question of lifting the material from petitioner firm. The respondent No.2 has denied the assertion that the material was kept ready by the petitioner and that it had failed to provide the dumping space to the petitioner. Respondent No.2 has while denying the assertion that the material got damaged during floods claimed that it had written a communication to the SICOP for cancellation of the order which is subject matter of this petition to be substituted by UPVC door window system and the same was accepted by respondent No.1. Besides the above pleadings the respondent No.3 the then General Manager of SICOP has filed an affidavit in which he has admitted that letters were addressed to respondent No.2 for providing space to dump the material but it did not pay any heed to these communications. He has further submitted that he personally visited the workshop and godown of the petitioner and found that the material was ready as per the specifications. I have heard learned counsel for the parties and perused the material on record. Certain facts which emerge from the pleadings of the parties which are required to be noticed are that the petitioner was awarded two purchase orders by respondent No.1. The first purchase order amounting to Rs.52 57 151 was executed by the petitioner for which it received payment from respondent No.1. The dispute only relates to the second purchase order amounting to Rs.83 00 180. According to the petitioner he kept the 5 OWP No.792 2016 material ready and informed respondent No.1 SICOP to provide dumping space but it did not receive any response either from respondent No.1 or from respondent No.2. The respondent No.1 has also admitted that it had received the said communications from the petitioner and in turn they informed respondent No.2 to provide the requisite space. It is the stand of respondent No.2 that it had cancelled aforesaid purchase order and instead it had issued a modified purchase order which was duly accepted by respondent No.1 and the supplies were made by some other supplier. Thus according to respondent No.2 there was no question of lifting the material prepared by the petitioner. 10) The question whether respondents were justified in modifying the purchase order without informing the petitioner and if not what are its consequences is a matter in the realm of law of contract. Another question which falls for determination is as to whether petitioner actually suffered damage to the material prepared by it during the floods of September 2014 particularly when there is no admission on the part of respondents in this regard. The petitioner has relied upon a certificate issued by Police Station Shaheed Gunj Srinagar to support his contention that the material in fact was damaged in floods but can such a certificate be relied upon is a billion dollar question. The same can be answered only by leading evidence. Even the said certificate contains a caveat that the concerned departments organizations only at a later stage can properly assess a detailed account of loss. 6 OWP No.792 2016 11) There is yet another aspect of the matter which requires to be taken note of. The communications whereby respondent No.2 was asked by respondent No.1 to provide space for dumping of the material are dated 29.12.2012 and 19.01.2013. The floods took place in September 2014. What happened in the interregnum i.e. from January 2013 to September 2014 is not forthcoming from the material on record. It seems that the petitioner has acquiesced in the inaction of respondent No.2 in providing space for dumping of the material as it did not approach any court of law to agitate its rights until May 2016. Apart from this whether from January 2013 to September 2014 when the floods wreaked havoc in Kashmir Valley the material that is stated to have been prepared by the petitioner and was lying in its shops was intact is a question of fact which requires to be determined after leading evidence. 12) From the foregoing analysis of the facts emerging in this case it is clear that the transaction between the parties is a contract in the realm of private law. The same is governed by the provisions of Contract Act and also by provisions of Sale of Goods Act. A dispute relating to interpretation and terms of such a contract cannot be a subject matter of writ proceedings. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of State of U.P and Ors. V. Bridge & Roof Co Ltd.6 SCC 22. The following observations of the Supreme Court in the aforesaid case are relevant to the context and the same are reproduced as under: “16.In our opinion the very remedy adopted by the respondent is misconceived. It is not entitled to any relief 7 OWP No.792 2016 in these proceedings i.e in the writ petition filed by it. The High court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiteration the effect of the order of the Deputy commissioner made under the proviso to section 8 Dwas not a prayer which could be granted by the High court under Article 226. Indeed the High Court has not granted the said In view of aforesaid position of law it is clear that the petitioner by approaching this Court by way of writ petition has not chosen the appropriate remedy. The issues involved in the petition arise out of contract between the parties and the same can be determined only in a civil suit after full dressed trial and not in the writ proceedings. Thus the writ petition is held to be not maintainable. The same is accordingly dismissed with liberty to the petitioner to avail appropriate remedy of civil suit if so advised. “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No 

Summary: If the transaction between the parties is a contract then it is in the realm of private law. The same is governed by the provisions of Contract Act and also by provisions of Sale of Goods Act. A dispute relating to interpretation and terms of such a contract cannot be a subject matter of writ proceedings as held by the Hon’ble High Court of J&amp;K and Ladakh through a learned bench of Hon’ble Mr. Justice Sanjay Dhar in the case of M/S Venoos Furniture Vs Sicop And Others [OWP No.792/2016]. The brief facts of the case are that the petitioner is a registered small scale industrial unit. Supply orders in favour of petitioner were issued by respondent No.1. The petitioner was asked to provide and Furniture set for administrative/lecture hall block at Faculty of Fisheries Rangil for approximate costs of Rs.52,57,151/ and also at SKUAST main campus, Shalimar, for an approximate cost of Rs.83,00,255/. The petitioner completed the work allotted to it and the payment in respect of the said work was also released by the respondent No.1 after receiving written authorization from respondent No.2. It is the case of the petitioner that because the respondents failed to provide the space for dumping of material prepared by the petitioner, as such, it had to dump the same in its shops and that whole of this material got damaged in the devastating floods whereafter he served a legal notice upon respondent No.1 asking it to release the payment which it has received from respondent No.2 but of no avail. This according to the petitioner compelled it to file the instant writ petition. It was contended by the respondents that the petitioner has approached the Court after more than five years, which casts doubt upon the genuineness of its claim. A preliminary objection to the maintainability of the writ petition on the ground that the dispute between the parties is in the realm of contract and, as such, the same cannot be adjudicated in the writ proceedings, was also raised. After hearing learned counsels for both the sides, the Hon’ble High Court relied on the principle laid down by the Hon’ble Supreme court in the case of State of U.P and Ors Vs Bridge &amp; Roof Co (India) Ltd and concluded by stating that “It is clear that the petitioner by approaching this Court by way of writ petition has not chosen the appropriate remedy. The issues involved in the petition arise out of contract between the parties and the same can be determined only in a civil suit after full dressed trial and not in the writ proceedings. Thus, the writ petition is held to be not maintainable. The same is, accordingly, dismissed with liberty to the petitioner to avail appropriate remedy of civil suit, if so advised.”