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(2010) 14 SCC 788
IN THE SUPREME COURT OF INDIA
K.G. BALAKRISHNAN, CJI., R.Y. RAVEENDRAN AND J.M. PANCHAL,
KONE ELEVATOR INDIA PRIVATE LIMITED Petitioner;
Versus
STATE OF TAMIL NADU AND OTHERS Respondents.
Writ Petition (Civil) No. 232 of 2005 with SLPs (C) Nos. 14148-53 of 2005, etc.,
Decided On : February 13,2008
Kone Elevators (India) Ltd.; Man Industrial Corpn. Ltd.; Nenu Ram; Vanguard Rolling Shutters; Hindustan Shipyard Ltd. – Referred
Facts of the case:
The question raised for consideration in these petitions is whether manufacture, supply and installation of lifts is to be treated as "sale" or "works contract".
Finding of the Court:
In view of divergent views expressed by three Judge Benches, matter should be referred to Constitution Bench.
Result:
Matter referred to Constitution Bench.
ORDER
1. The question raised for consideration in these petitions is whether manufacture, supply and installation of lifts is to be treated as "sale" or "works contract". As the writ petitions filed by the petitioners have raised important questions of law, the matters have been directed to be placed before a three-Judge Bench.
2. Heard Mr Harish N. Salve, learned Senior Counsel for the petitioner and Mr Anoop Chaudhari, learned Senior Counsel for the State of Andhra Pradesh and the learned counsel for the States of Gujarat, Uttar Pradesh and Tamil Nadu.
3. In State of A.P. v. Kone Elevators (India) Ltd. 1 it was held that such a contract constituted a "sale" and does not amount to "works contract" and the element of service provided by the vendor of the elevator was negligible. The learned Senior Counsel Mr Chaudhari submitted that having regard to the nature of the contracts, the said view was not correct. Our attention was drawn to a series of decisions rendered by this Court in State of Rajasthan v. Man Industrial Corpn. Ltd., State of Rajasthan v. Nenu Ram and Vanguard Rolling Shutters & Steel Works v. CSP which take a contrary view. The said decisions have not been noticed in Kone Elevators (India) Ltd.
4. The learned counsel appearing for the States of Gujarat, Uttar Pradesh, Andhra Pradesh and Tamil Nadu submitted that the decision in Kone Elevators (India) Ltd. I was correctly decided and placed reliance on Hindustan Shipyard Ltd. v. State of A.P. They also submitted that the petitions under Article 32 are not maintainable. The respondents would be at liberty to raise these contentions also when the matters are finally heard.
5. Having regard to the issues involved in these matters and apparent conflict in the view expressed by three-Judge Benches of this Court, we refer these matters to a Constitution Bench. The Registry will take further steps to post before the Constitution Bench.
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