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2019 Supreme(Mad) 2887
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S.SIVAGNANAM, V.BHAVANI SUBBAROYAN, JJ.
K.S.Mani Electricals represented by its Proprietor K.Subramaniyan S/o P.Kuppusamy – Appellant
Versus
The Project Director Tamil Nadu Road Sector Project II – Respondent
W.A.No.1037 of 2019 and C.M.P.No.7756 of 2019
Decided on : 30-07-2019
Advocate Appeared:
For the Appellant : Mr.R.Gandhi, For Mr.P.Arivudai Nambi
For the Respondent:Mr.R.P.Prathap Singh, Advocate
Headnote:
Constitution Of India, 1950 – Contract - Payment for bills raised corresponding to work done - Appellants case as stated before Writ Court is that second respondent had entered into contract with first respondent to execute certain Government contract work - Said contract provides for engagement of utility contractor for shifting any utility including electric line water pipes telephone etc to an appropriate location or alignment - Appellant claimed before Writ Court that having completed all work in full and first respondent officials having issued completion certificate long back appellant is entitled for payment as per bill raises by appellant before first respondent – Held, However first respondent after receiving bills and acknowledging work completed by appellant has not moved despite issuing work completion certificate which made appellant to make representation respondents claiming amount due to appellant - In ordinary sense if appellant is engaged independently by second respondent as Sub contractor which is not supported by contract entered between first and second respondent appellant would not stand case in present Writ Appeal - However when contract provides for engagement of appellant as an utility contractor independent of contract work to be performed by second respondent - In other words when original contract provides for engagement of an independent body like appellant as an utility contractor whose work is also specified contract independent of original work to be done by parent contractor such third party being engaged contract have direct relationship between parent contractor and authority with whom there is contract in existence between exceptional and in rarest of rare cases where appellant like contractors not as Sub contractor but as utility agency without whom entire contract is impossible of being performed by original contractor claims made by such utility agency cannot be shelved away merely because there is no direct contract between agency and authority - Hence court are of view as present appellant who has performed his work contract and who forms part of contract and whose payment is also made separately in addition to contract price and whose claim has been denied by first respondent cannot be brushed away merely because there is dispute between first and second respondent - As such claim of appellant necessarily has to be considered by first respondent - Appeal allowed
JUDGMENT :
V.BHAVANI SUBBAROYAN, J
This Writ Appeal has been filed by the appellant herein challenging the correctness of the order passed in W.P.No.33916 of 2018 dated 12.02.2019, dismissing the Writ Petition.
2. The brief facts of the appellant's case as stated before the Writ Court is that the second respondent had entered into a contract with the first respondent to execute certain Government contract work. The said contract provides for engagement of utility contractor for shifting any utility (including electric line, water pipes, telephone etc) to an appropriate location or alignment. The appellant claimed before the Writ Court that having completed all the work in full and the first respondent officials having issued completion certificate long back, the appellant is entitled for the payment as per the bill raises by the appellant before the first respondent.
3. The appellant would further claim that the second respondent, the Principal Contractor, has illegally withheld certain amount which is in due to the appellant from the first respondent and also illegally appropriated from the appellant Escrow amount. These facts were brought to the knowledge of the first respondent. However, the first respondent despite being a Government authority is refusing to pay the bills of the appellant herein.
4. Before the Writ Court, the appellant has prayed for issuance of a Writ of Mandamus, directing the first respondent to consider the appellant's representation dated 26.11.2018 and to pay the entire bill amount to the appellant as per the details in the representation dated 26.11.2018. The first respondent argued before the Writ Court that the appellant is not a contractor under the first respondent and there is no privity of contract between the appellant and the first respondent, and as such, the appellant cannot make any claim for payment from the first respondent, and if at all there is any payment due to the appellant, the same has to be made only against the second respondent initiating appropriate civil proceedings.
5. On hearing the submissions made by the parties before the Writ Court, the learned Single Judge held that there is no legally enforceable claim available to the appellant against the first respondent as there is no privity of contract between the appellant and the first respondent, and the claim is between the private parties, namely, the appellant and the second respondent, which has to be agitated by the appellant before the competent civil court by initiating appropriate civil proceedings, and declined to grant the relief as prayed for in the Writ Petition. As against this order, the present Writ Appeal has been filed.
6. The learned Senior Counsel Mr.R.Gandhi appearing for the appellant would submit that as per Article 9.2 of the agreement dated 06.07.2015 entered between the first and second respondent, which provides for engagement of utility contractor though there is no direct contract or agreement between the appellant and the first respondent. The original contract under Article 9.2 provides for engagement of utility agency, and the first respondent having acknowledged the work of the appellant, is entitled to receive the payment for the bills raised corresponding to the work done. The first respondent having issued the clearance certificate, acknowledging the completion of the work by the appellant is bound to make payment to the appellant irrespective of whether there is any claim made by the second respondent.
7. The learned Senior Counsel would further submit that under the contract between the first and second respondent, the disbursement to the utility agency, the actual cost of utility agency bill, less supervision charges of agency less under 10% towards the contractors overhead shall be payable by the first respondent to the second respondent which would mean that such payment is in addition to the contract price and therefore there need not be any privity of contract between the appellant and the
