The petitioner should be given an opportunity to contest the certificate proceeding and file a denying liability application under Section 8 of the O.P.D.R. Act.

JUDGMENT :

Biswanath Rath, J.

This writ application involves a challenge to the ex parte order passed by the Certificate Officer, Sadar, Cuttack in exercise of power under the OP.D.R. Act, vide Annexure-3.

2. In assailing the impugned order, Sri Ray, learned senior counsel for the petitioner referring to the Clauses contained in the agreement, particularly, Clauses-16, 32 & 36 involving Annexure-1 contended that for the conditions for a call on behalf of the first party on the second party involving the outstanding, if any, no claim of the first party would have been entertained under the O.P.D.R.Act in absence of a call by the first pasty. Further referring to the amendment of the Clause-16 making the O.P.3 entitled to higher commission, Sri Ray, learned senior counsel further contended that this being a position after five years, there should have been an adjudication as to whether there is a call by the first party involving the dispute and further whether the first party was entitled to higher commission in terms of the amended provision of Clause 16. Further referring to the order dated 14.5.97 and the impugned order dated 11.6.97, Sri Ray, learned senior counsel further submitted that since the petitioner was given a scope for filing denying liability petition under Section 8 of the O.P.D.R. Act, the Certificate Officer instead of disposing of the matter on 11.6.97 would have at least provided one more opportunity to the petitioner’s for his coming with denying liability petition.

It is under the circumstance and for final adjudication of the matter, in absence of an opportunity of filing protest under Section 8 of the O.P.D.R. Act, Sri Ray, learned senior counsel for the petitioner urged that the impugned order becomes bad, further the impugned order also being ex parte in nature and further for the involvement of financial implication, the impugned order remains unsustainable and thus is liable to be interfered with and set aside.

3. Sri A.K.Mishra, learned counsel for the O.P.3 referring to the amended Clause-16 of the agreement finds place in Annexure-B/3 to the counter affidavit submitted that for the amended provision at Clause-16 of the agreement between the parties, O.P.3 is undisputedly entitled to higher commission. Further referring to the order dated 4.10.97 involving the writ application, Sri Mishra, learned counsel for O.P.3 further contended that the petitioner having already made over the whole amount, vide cheque dated 4.10.97, there remains nothing to be adjudicated. It is under the above premises, Sri Mishra, learned counsel for O.P.3 contended that the matter has gone infructuous and there is no scope for interfering in the matter at this stage.

4. Sri Sahoo, learned Additional Standing Counsel for O.Ps.1 & 2 supported the contention raised by Sri Mishra, learned counsel for O.P.3 and for the development taken place in the meantime requested this Court not to interfere with the impugned order for the deposit of the demand involving the certificate proceeding in the meantime.

5. Sri Ray, learned senior counsel for the petitioner, in his objection to the submission of Sri Mishra and Sri Sahoo submitted that the payment whatever made is under protest and coercion, therefore, the petitioner is still entitled to claim for re-consideration of the issue involving the certificate proceeding.

6. Considering the rival contentions of the parties, this Court finds, there is no dispute that Annexure-1 involves an agreement between the petitioner and the O.P.3. There is also no dispute that there has been amendment of the provision at Clause-16 making way for higher commission in favour of O.P.3. Be that as it may, the certificate proceeding since involved a dispute with regard to non-payment of commission, there is no illegality in initiation of such proceeding but however considering that the proceeding involved monetary implication, the matter should have been decided on contest rather than on technicalities.

On perusal