Writ – High Court – Jurisdiction of – Disputed question of facts relating to recovery of money – A Notice inviting tender was issued for construction and improvement of road – The bid of the writ petitioner was accepted and work order was issued – There was an arbitration clause in the contract for resolving disputes arising between the parties – The writ petitioner submitted a final bill and claimed a sum of Rs.23,68,11,589.02 – It was asserted that payment for amount claimed in the 18 running bills was already made, but in respect of 19th and 20th running bill, entries were made in the measurement book, however, the payment was not cleared – The final bill was returned unactioned and writ petitioner was informed that the payment up to 18 running bills had already exceeded the permissible approved amount including escalation payment – The claim was refused by the appellants – Writ petition filed by the petitioner was allowed by the Single Judge of the High Court and affirmed by the Division Bench of the High Court – On appeal, held: The dispute could not be raised by way of a writ petition on the disputed questions of fact – Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties – The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts – Such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads.
Allowing the appeal, the Court
HELD: 1. The High Court has based its order on the ground that after five monsoons, the final measurements could not be ascertained. If the final measurements could not be done at the spot, the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement, though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the claim raised by the writ petitioner. The entire amount claimed by the writ petitioner is disputed. [Para 23][135-B-D]
2. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads. [Para 24][136-A-D]
Kerala State Electricity Board & Anr. v. Kurien E. Kalathil & Ors. (2000) 6 SCC 293 : [2000] 1 Suppl. SCR 581; Joshi Technologies International Inc v. Union of India & Ors. (2015) 7 SCC 728 : [2015] 6 SCR 1042 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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