Writ jurisdiction under Article 226 not for complex contractual disputes requiring factual adjudication of performance, consents and payments; relegate to appropriate forums.

JUDGMENT :

Hiten S. Venegavkar, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties.

2. The present writ petition is filed by the petitioner-company through its authorized representative. Reliefs prayed are as follows:

“A) For writ in the nature of mandamus or any other writ order or direction, thereby direct the Respondent No.2 and 5 to forthwith deposit the amount to the account of Respondent No.3 JVC which is paid to the Respondent No.5 directly by the Respondent No.2 for the works carried out under the Work Order dated 11.06.2002 issued by the Respondent No.2 TIDC in favour of the Respondent No.3 JVC (EXHIBIT-I);

B) For writ in the nature of mandamus or any other writ order or direction, thereby directing the Respondent No.2 TIDC to henceforth make the payment for the works carried out by the Petitioner or the Respondent No.4/5 under the Work order dated 11.06.2002 (EXHIBIT-I) issued in favour of the Respondent No.3 JVC in the account of the Respondent No.3 and the bills be released in the name of the Respondent No.3;

3. The substantive grievance raised in the petition is that respondent no.2 – Tapi Irrigation Development Corporation, has allegedly diverted contractual payments in favour of respondent no.5 directly, though the original work order dated 11.06.2002 issued in favour of respondent no.3, namely the joint venture consortium. On that basis the petitioner seeks a direction that the amount already paid to respondent no.5 be deposited in the account of respondent no.3 joint venture and a further direction that all future payments in respect of the works executed under the said work order be made only in the account and in the name of respondent no.3 joint venture.

4. The background facts, as pleaded by the petitioner, are that respondent no.2 had issued a tender notice on 24.05.1999 in relation to a large irrigation project concerning design, planning and construction of the dam at Bhagpur together with intake well, approach channel, connecting pipeline, jack well, sump well, pump house, allied civil works, pumping machinery, electrical accessories, electrical substations and rising mains for Bhagpur-Nashirabad Sinchan Yojana, Jalgaon, on Turnkey Basis. The estimated value of the tender was stated to be Rs.30,543 lakhs and the time for completion was seven years. The petitioner’s case is that the tender was a “C form” lump sum Turnkey tender, in which the quantities indicated in the tender documents were only approximate and by way of broad indication, while the contractor had to prepare its own designs and drawings, get them vetted by CDO, Nashik, obtain approval of the Chief Engineer, and execute the work for the lump sum contract price. The petitioner has heavily relied upon the clauses which, according to it, make it clear that increase or decrease in quantities after preparation of the contractor’s own designs would not entitle either side to additional payment or deduction.

5. The petitioner has further pleaded that, since no single constituent independently possessed the entire technical eligibility for all components of the work, a joint venture was permitted by the tender terms. Accordingly, respondent no.3 joint venture came to be constituted under an agreement dated 22.09.1999 between the petitioner on one side and respondent no.4, namely the HVEL- Mahalaxmi joint venture, on the other. Under that arrangement the peti