Advocates:
['ANIRUDDH SHARMA', '', 'RAHUL PANT SR ADV', 'RAVINDER GUPTA AAG']

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

LPA No. 79/2021 (O&M)

c/w

LPA No. 80/2021 (O&M)

SRM Contractors Pvt. Ltd.

…..Appellant(s)/Petitioner(s)

Through: Sh. Rahul Pant, Sr. Advocate with

Sh. Anirudh Sharma, Advocate

Vs

UT of J&K and others

.…. Respondent(s)

Through: Ms. Pallavi Sharma, Advocate vice

Mr. Ravinder Gupta, AAG

Coram:

HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

24.05.2022

(OPEN COURT)

Per : Thakur-J)

1.

Since common questions of facts and law have arisen in the

present two appeals, therefore, we propose to dispose of the same by way

of this common judgment.

2.

With a view to understand the background in light of which the

present controversy has arisen, it is necessary to briefly state the material

facts as under:-.

3.

The petitioner, a Private Limited Company registered under the

Companies Act, is involved in execution of civil works on contract basis.

4.

The appellant filed four petitions before the Writ Court bearing WP

(C) Nos. 983/2020, 984/2020, 985/2020, 986/2020 in which it was alleged

that pursuant to the Notice inviting tenders for execution of works and

Sr.No.46 & 47

2

LPA No. 79/2021 a/w

connected matter

having been found to be L1, work was allotted to the appellant which was

satisfactorily completed by it but the payment was withheld without any

cause or justification. The case set-up was that running account bills were

submitted in regard to all four contracts which were allotted to the appellant

but only partial payment was released by the respondents and rest was

withheld on account of the fact that the funds were not available.

5.

It was in that background that the petitioner/appellant filed four

different petitions in regard to each NIT and the contracts which were

successfully executed, claiming a direction in the nature of a mandamus for

release of the admitted amount payable.

6.

In response to the writ petitions, filed by the respondents, a

preliminary objection was taken that the petition was not maintainable

inasmuch as, an alternative remedy of arbitration was available to the

appellant/petitioner in view of the existence of an arbitration clause in the

agreement. Apart from this, the fact that the payment was not due to the

petitioner/appellant was not specifically denied. What was highlighted in the

reply, as reflected in paragraph 02-09 and 10 & 11 was that the balance

amount, if any, due to the appellant/petitioner had already been kept in the

Plan and the same would be paid on release by the Government and that

the Work done liability for the years 2016-17, 2017-18 and 2018-19 had

been communicated to the Government.

It was, however, stated that the deductions, as permissible in

terms of the provisions of the Income Tax, GST, Service Tax Labour Cess

Security Deposit etc. were also required to be made by the respondents

before releasing the payment in favour of the petitioner.

7.

The other objection raised was that the writ petition could not be

entertained in view of disputed questions having being raised in the writ

petition.

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8.

The matter, having been considered by the Writ Court, the petitions

were dismissed vide judgement and order dated 23.02.2021.

One fact which needs to be noticed is that during the pendency of

the writ proceedings, pursuant to the directions dated 05.06.2020 passed

by the writ court the respondents were asked to file a better affidavit. In the

said affidavit, it was stated that the floods which affected the Kashmir valley

in September, 2014 had caused substantial damages to the roads and

villages and the basic infrastructure in K