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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rajesh Shankar, J.
M/s. Satyam Shivam Sundaram, through its Proprietor Raju Prasad - Petitioner
Versus
The State of Jharkhand through the Secretary, Rural Works Department and ors. – Opposite Parties
Civil Review No. 45 of 2020
Decided On : 05-02-2021
Constitution of India, 1950 - Article 226 - Civil Procedure Code, 1908 - Rule 1 - Order 47 - Claim of payment of earnest money - Re-examination or reconsideration - Having considered available on record court view that respondent authorities have arbitrarily retained bill amount without any justified reason and as such they are bound to release same in favor of petitioner - If respondents had executed agreement with petitioner for specific amount it was their duty to have sufficient fund for purpose of payment - Thus respondents are also bound to make payment of interest for delayed payment per annum from date final bill was prepared till actual date of payment - So far as dispute with respect to earnest money and security deposit are concerned this Court is not inclined to interfere in writ jurisdiction – Held, In present case petitioner seeks review of order passed by this Court in claiming that letter issued by respondent was not taken into consideration by this Court while passing order as same was not served to it before filing writ petition and for first time same was annexed by respondents with counter affidavit - Further contention petitioner is that it inadvertently could not raise said point at time of hearing of writ petition – Court view that said contention of petitioner cannot be accepted by this Court at this stage in view ratio laid down by Honble Supreme Court with respect to scope of review petitions - It is not case of petitioner that it did not have knowledge of said document in course of hearing writ petition - It has rather admitted that it inadvertently could not raise objection regarding contents of letter in course of argument - Petitioner has also failed to disclose any apparent mistake or error face order passed by this Court in seeking review of same - Moreover opposite parties have specifically denied contention petitioner stating that letter was served to its representative personally - Any failure to take point at time of hearing is not ground to review earlier order passed by court - Other grounds taken by petitioner touching merit of its claim cannot be entertained while hearing review petition more so when this Court after taking into consideration of all points raised by parties in has declined to pass order for refund of earnest money and security deposit petitioner with respect to work in question treating those as disputed question of facts - However petitioner was given liberty to take appropriate recourse as provided law for redressed of its subsisting grievance in terms with agreement – Petition dismissed
ORDER :
The present writ petition is taken up today through Video conferencing.
2. The present Civil Review petition has been filed for reviewing the judgment and order dated 21.05.2020 passed by this Court in W.P(C) No. 6826 of 2018 to the extent that this Court declined to allow the prayer of the petitioner with respect to refund the earnest money amounting to Rs.22,33,366/- as well as security deposit amounting to Rs.21,90,000/- with interest @15% per annum from the due date i.e. 5th December, 2014 till the date of actual refund.
3. The petitioner had filed writ petition being W.P(C) No. 6826 of 2018 seeking direction upon the respondents to make payment of outstanding dues of Rs.7,45,830/- pending since 05.12.2014, earnest money of Rs.22,33,366/- deposited in the bank and security amount of Rs.21,90,000/- with 15% interest from the due date i.e 5th December, 2014 till actual date of payment. This Court vide order dated 21.05.2020 allowed the writ petition in part by directing the respondents to make payment of Rs. 7,44,130/- against the final bill of the petitioner along with interest on the delayed payment @ 6% per annum with effect from the date of preparation of the final bill till the actual date of payment. So far as claim of payment of earnest money and the security deposit are concerned, this Court declined to entertain the said claim under writ jurisdiction. The relevant part of the order dated 21.05.2020 is quoted herein below:-
“11. Having considered the facts available on record, I am of the view that the respondent authorities have arbitrarily retained the bill amount of Rs.7,44,130/- without any justified reason and as such they are bound to release the same in favour of the petitioner. If the respondents had executed the agreement with the petitioner for a specific amount, it was their duty to have the sufficient fund for the purpose of payment. Thus, the respondents are also bound to make payment of interest for delayed payment @ 6% per annum from the date the final bill was prepared till the actual date of payment. So far as the dispute with respect to earnest money and the security deposit are concerned, this Court is not inclined to interfere in the writ jurisdiction.
12. Accordingly, the respondent authorities are directed to make payment of Rs.7,44,130/- against the final bill of the petitioner along with interest @ 6% per annum with effect from the date of preparation of the final bill within three months from the date of receipt/production of a copy of this order.
13. It is, however, clarified that no determination with regard to factual dispute between the parties has been made and the petitioner is at liberty to take appropriate recourse as provided under the law for redressal of its subsisting grievance in terms with the agreement.”
4. Mr. Sumeet Gadodia, learned counsel for the petitioner, submits that the petitioner was awarded the work for construction of road from Pakur Dhuliyan, Main Road, Chanchki to Nawada via Pirthvi Nagar, Chand Nagar, Gandhaipur School for a distance of 4.850 Kms. for the financial year of 2012-13 and it completed the said work within the stipulated time i.e. by 5th December, 2014 The work completion certificate was also issued to the petitioner. It is further submitted that the petitioner was maintaining the road in question during the defect liability period of three years i.e. till 4th December, 2017, however the respondents in their counter affidavit alleged for the first time that the petitioner had not done the maintenance work of the road in question and in support of the said averment, they annexed letter no. 980/ Pakur dated 27.07.2017 issued by the respondent no. 4 wherein it was stated that though the petitioner in its application dated 13.07.2017 claimed that the said road was repaired, however it was found in the inspection carried out by the Assistant Engineer and Junior Engineer on 20.07.2017 that there were big potholes accumulated with water and blacktops on so
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