The main legal point established is that the respondents were obligated to refund the entire security deposit within six months from the completion of the work, and any claim for deduction/appropriation had to be made within that period.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The petitioners were successful in a tender for hiring of Heavy Earth Moving Machinery and Extraction of Coal and was awarded contract accordingly. The petitioners argue that the work was completed in June, 2022 and a Job Completion Certificate was issued to the petitioners on November 19, 2022. However, thereafter the respondents are withholding not only the final bills but also the performance security and retention amounts, contrary to the terms of the contract.

2. Learned counsel for the petitioners places reliance on Clause 4.7 of the General Terms and Conditions (GTC) which provides for refund of security deposit subject to the company’s right to deduct/appropriate its dues against the contractor under the present or other contract. As per the said clause, on completion of the entire work and certified as such by the engineer-in-charge, one half of the security deposit remaining with the company shall be refunded. The other half shall be refunded to the contractor on the expiry of six months performance guarantee period from the date of completion as certified by the engineer-in-charge. However, the same is subject to certain conditions including that if any defect was detected within the defect liability period of six months, the same is to be rectified by the contractor.

3. A Chart has been annexed to the writ petition in respect of the perceived dues of the petitioners from the respondents.

4. Learned counsel for the petitioners cites Joshi Technologies International INC. v. Union of India and others, reported at (2015) 7 SCC 728 and Surya Constructions Vs. State of Uttar Pradesh and others, reported at (2019) 16 SCC 794 for the proposition that the high prerogative writ jurisdiction can be exercised for interference in commercial matters as well.

5. Citing M.P. Power Management Company Limited, Jabalpur Vs. Sky Power Southeast solar India Private Limited and others, reported at (2023) 2 SCC 703, the petitioners argue that the need to deal with disputed questions of fact cannot be made a smokescreen to guillotine a genuine claim of the writ petitioner, when actually the resolution of a disputed question of fact is unnecessary to grant relief. Moreover, any instrumentality of State should not behave arbitrarily to deny the claim of the petitioners after taking advantage of the work done.

6. Learned counsel next cites Indore Development Authority Vs. Sailendra (Dead) Through Legal Representatives and others, reported at (2018) 3 SCC 412, where the Supreme Court observed that convenience cannot accrue to a party from his own wrong.

7. Learned counsel for the respondents refutes the claim of the petitioners. By placing reliance on Orix Auto finance (India) Ltd. Vs. Jagmander Singh and Another, reported at (2006) 2 SCC 598 and Orissa State Financial Corporation Vs. Narsingh Ch. Nayak and others, reported at (2003) 10 SCC 261, it is contended that the court cannot rewrite the contract entered into between the parties. Clause 4.7 of the contract provides that the respondents are entitled to recover amounts not only in respect of the present contract but pertaining to other contracts as well.

8. It is argued that in a letter dated January 1, 2024, the respondents raised a claim of Rs. 7,45,68,963.47p in respect of work done by the petitioners under a different contract. The said amount, if adjusted, would exceed the claim of the petitioners in the writ petition.

9. Learned counsel for the respondents also relies on Dr. Kunal Saha Vs. The State of West Bengal & Anr., reported at 2015 SCC OnLine Cal 3284, Gulabchand Chhotalal Parikh Vs. State of Gujarat, reported at AIR 1965 SC 1153 and Adhunik Ispat Limited Vs. Triveni Infrastructure Development Co. Limited, reported at (2011) 2 CHN 527 in support of the proposition that if a foundation of right is raised in the pleadings, the cause of action remains alive until the judgment or decree is passed, since cause of action merges in the decree. It is