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Judgment
Akil Kureshi, CJ
The petitioner's prayers in this petition are as under:
"Issue Rule NISI upon the respondents to show cause as to why a Writ of Mandamus or in the nature thereof shall not be issued commanding upon the respondents to pay the undisputed outstanding amount of (a) Rs.92,04,009/- towards the security money (b) Rs.3,17,24,510/- against clause 10(CC) and (c) Rs.9,94,574/- against due RA Bills less the amount of Rs.2,44,196/- paid on 07-02-2019, in total Rs.4,16,78,897/- to the petitioner.
AND
As to why a Writ and/or direction shall not be issued upon the respondents to pay Rs.2,70,95,403/- in the account of interest on the outstanding amount of Rs.4,19,23,093/- so calculated upto 06-02-2019 with further direction to calculate and pay further interest from 07-02-2019 @ 12% per annum on the outstanding amount till the date of payment."
The petitioner is a contractor and was awarded the work of project consultancy service including construction and execution of 8(eight) permanent bridges as per the data sheet and direction of the Engineer in charge of the Public Works Department (PWD) of the State Government under a work order dated 16.01.2008.
Case of the petitioner is that the entire work is satisfactorily completed despite which the respondents have not made the payment of outstanding amount of `4,16,78,897. The petitioner would rely heavily on a letter dated 13.04.2018 written by the petitioner to the Executive Engineer on which the Executive Engineer had made a remark that "All the item described above under process and may be finalize when fund will available".
Learned counsel for the petitioner submitted that this would amount to a clear admission part of the State authorities. When the work was satisfactorily completed by the petitioner and there was no dispute about the nature of work, its satisfactory completion and most importantly the fact that pursuant to the completion of the work, the State Government had to pay the said amount of `4,16,78,897 to the petitioner, the payment could not be withheld. He, therefore, submitted that the directions, as prayed for, may be issued.
On the other hand, learned Advocate General appearing for the Government opposed the petition. Relying on the affidavit in reply filed by the Government, he submitted that highly disputed questions of facts arise in the petition. The claims of the petitioner are not admitted. Serious question of limitation would arise. Writ petition, therefore, is not the appropriate remedy.
Having thus heard learned counsel for the parties and having perused the documents on record, we find that the reliefs claimed in the present petition are in the nature of recovery of unpaid dues of a works contractor. The petitioner virtually seeks a money decree. By very nature of things, several disputed questions would arise before the petitioner can establish the claim and seek a decree for payment of money can be granted. The question of limitation may also be a relevant question. The respondents in the reply have not admitted any of the claims of the petitioner. The averments made in the reply may be noted:
"4. That, though the petitioner in this writ petition mentioned that the clauses as (a) (b) & (c) against refund of security money, price escalation, Running Account Bill is undisputed but the Respondents submits that those claim are disputed and cannot decided by the Hon'ble High Court.
That, the issue is related with the agreement stated above on Turnkey basis/Lump Sum contract in PWD form 12 (Twelve) which may be settled as per provision of the valid Agreement by the Department. Dispute arises on the ground whether the Agency is entitled to get escalation under clause 10(CC) as demanded by the Agency vide their letter dated December 11, 2007 [(Clause No.7(vi)] (Flag-A) whereas, contract on Turnkey basis/Lump Sum contract in PWD form-12 does not allow any escalation.
That, as per lump sum contract (PWD Form-12) the extra payment or recovery over and above the accepted rate shall be called for only in the event of authorized deviations from the drawings and specifications (as given and/or referred to in the tender documents) in course of execution and otherwise. In the instant case, no authorized deviations from the drawings and specifications have neither been proposed by the Department nor accepted by the Agency/claimant.
That, so, the claim under clause 10(CC) is nothing but fictitious & fabricated having no Scope & provision of the agreement under PWD Form 12 to make any payment under clause-10(CC).
That, the contents of the Writ petition is totally related with the disputes of above cited agreement which may be settled as per terms & condition of the agreement, but the contractor/Agency has neither sought for appointment of arbitrator to the competent authority of the Department nor the Hon'ble High Court, Tripura, rather the agency has approached to the Hon'ble High Court, Tripura for getting his arbitrary/disputed claims without justified settlement of the same."
Additionally, the question also would be whether the agreement had an arbitration clause requiring the aggrieved party to resort to arbitration in case of any disputes arising. Depending on the nature of the agreement whether it contains arbitration clause or not for dispute resolution, the petitioner must resort to filing the civil suit or approaching the arbitrator as the case may be. A writ petition in the present form would not be maintainable.
The remarks of the Executive Engineer on the said letter dated 13.04.2018 of the petitioner cannot be seen as admitting the petitioner's claims. He only stated that the same would be processed and claims settled upon availability of funds. Thus, non-availability of funds was not the sole ground for not accepting the claim of the petitioner. The very veracity of the claim was under consideration.
In view of these above observations, petition is dismissed.