S. Harbans Singh Ghai vs The Union of India and another

Amarjeet Chaudhary, J.—The Petitioner was a partner in the Firm known as Beas Tunneling Experts and Co. The Firm executed some work in which the Petitioner had a share of 0/3/6 annas. The Petitioner was a non-investing partner in the Firm with only a share in the profit and loss. The Respondents have to pay a sum of Rs. 54076.30 P. to the Firm but the amount was not paid on the ground that a joint request was not made by the Firm. The partnership is no longer in existence. The Petitioner submitted a representation on May 10, 1982 (copy Annexure P.1). The Respondent-authorities, however, took a view that as the profit and loss statement had not been furnished, therefore, it would not be possible for them to release the amount. The Petitioner repeated the requests to various agencies for the release of his share The Petitioner through this writ petition prays for the release of his 0/3/6 anna share as the same has not been disputed by any partner. More so there is no order of any Court which has restrained the Respondents from the release of the amount in question. The Petitioner has sought mandamus on the plea that he is an old man of 80 years and is physically wreck and could not recourse to civil litigation.

Mr. T.S Doabia, learned Counsel for the Petitioner, has contended that a direction be issued to the Respondents to release the share of the Petitioner for which the Petitioner is also willing to furnish bank guarantee.

The Respondents have disputed the maintainability of the writ petition.

The High Court exercises its extraordinary jurisdiction under Articles 226 and 227 of the Constitution and can issue writ of mandamus if the authorities empowered to act under a Statute omit to exercise their jurisdiction or refrained from doing any act which the law enjoins upon them to perform their statutory function. The High Court has a jurisdiction when the omission is such which shocks the conscience of the Court even when there is no statutory obligation enjoining the subordinate authority to act or perform any legal duty.

In the given case the Petitioner has prayed for issuance of a writ of mandamus for the release of his share in the money which otherwise can be recovered in normal course by filing a civil suit in, the Court of competent jurisdiction. The relief for the payment of money cannot be claimed by way of a writ. The matter is not covered where issuance of a writ of mandamus is called upon. The writ of mandamus is not a substitute for a regular suit.

In view of the foregoing reasons I am not inclined to issue a writ of mandamus as such the writ petition is dismissed with no order as to costs. The Petitioner, if so advised, may file a suit for recovery of his share.