IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :- Hon’ble Justice Amrita Sinha WPA 21370 of 2024 M/s. Great Sports Tech Ltd.

Vs.

The State of West Bengal & Ors.

For the writ petitioners :- Mr. Piyush Chaturvedi, Adv.

Mr. Sayan Dev Kumar, Adv. Ms. Priyakshi Banerjee, Adv.

For State :- Mr. Lalit Mohan Mahata, AGP Mr. Prasanta Behari Mahata, Adv.

For SAI :- Mr. D.N. Ray, Sr. Adv.

Mr. Sourav Halder, Adv.

Hearing concluded on :- 21.02.2025 Judgment on :- 25.03.2025 Amrita Sinha, J.:-

1. The facts of the instant case are recorded in the order dated 17th January, 2025. The petitioner prays for a direction upon the respondent authorities to release the admitted dues along with interest. Prayer has also been made for releasing the earnest money deposit and the security deposit.

2. The dues of the petitioner, though admitted by the Public Works Directorate (PWD) i.e., the authority issuing the contract, hasn’t been paid because the Sports Authority of India (SAI) is not releasing payment to PWD on the ground that Customs Duty exemption has not been obtained by PWD. Had the Customs authority permitted exemption of duty, then the amount to be paid by SAI will be reduced to some extent. Both the respondent authorities are passing the buck to the other for obtaining the exemption certificate from the Customs authority. The petitioner has been caught in the fray and is left without payment for the work done. The earnest money deposit and the security deposit are also not being refunded even though the defect liability period is long over.

3. The report of the Executive Engineer, PWD dated 7th December, 2010 clearly mentions that obtaining the Customs Duty exemption certificate is the responsibility of the owner i.e. SAI but the said exemption certificate could not be obtained by SAI. As there was urgency in relaying the synthetic athletic track at SAI, the petitioner had to import materials from other countries for which the petitioner paid the customs duty to avoid payment of demurrage charges and for timely conclusion of the offered work. A proper utilisation certificate was issued by the Executive Engineer and completion cum performance certificate was also issued in favour of the petitioner.

4. Learned senior counsel representing SAI asserts that till the exemption certificate is issued by the Customs authority, payment cannot be made in favour of PWD as the money paid to the petitioner till now, is in excess of the outstanding amount.

5. An issue has been raised by SAI with regard to the maintainability of the writ petition. It has been submitted that the writ petition is not maintainable as the same is for recovery of money claim. The petitioner failed to avail the statutory alternative remedy to pursue with the Customs authority for obtaining the exemption certificate.

6. It has been submitted that the petitioner, in a separate contract, proceeded with the Customs authority for obtaining the exemption certificate, but in the instant case, the petitioner deliberately failed to obtain such certificate. For the petitioner’s failure to obtain the exemption certificate, SAI cannot be directed to bear extra burden of Customs duty.

7. It has been stressed that public money ought not to be squandered.

The petitioner’s diligence in obtaining the exemption certificate has been questioned.

8. Learned senior counsel representing SAI relies on the judgment delivered by the Hon’ble Supreme Court in the matter of United Bank of India –vs- Satyawati Tondon & Ors. reported in (2010) 8 SCC 110 where Court held that while dealing with petitions involving challenge to the action taken for recovery of public dues, the High Court must keep in mind that the legislation for recovery of dues is a code unto themselves. The High Court must insist that before availing remedy under Article 226, a person must exhaust the remedies available under the relevant Statutes.

9. Reliance has also been placed on the judgment delivered by the Hon’ble