STATE OF ANDHRA PRADESH Vs. SUPER CONSTRUCTIONS

JUDGEMENT

(1.) There is no dearth of attempt before this Court to somehow maintain writ petitions for declarations of the terms and conditions of contract inoperative or seeking enforcement of terms and conditions of contract for execution of work and consequently for directions for payment of claims arising from the contracts. Except in the cases which are exceptional and are not run-of-the-Mill cases it is well settled, the Court exercises restraint and refuses to entertain Petitions under Article 226 of the Constitution of India for enforcement of the terms and conditions of a contract or for resolving any dispute arising out of a contract as well as claims which are primarily in the nature of claims for money and this the Courts do by following the self-imposed restriction that power of judicial review is kept confined to reviewing orders of quasi-judicial authorities or such administrative orders which are violative of Article 14 of the Constitution of India and/or any other provision of the Constitution and to the said limited extent Courts do examine cases which are referable to a contract but not any other type of cases which arise from contract or in the nature of claims for money. Any petition for a writ in the nature of mandamus or a direction akin to a mandamus is not entertained for enforcement of any condition of contract for the simple reason that a mandamus is ordinarily issued only for enforcement of a public duty and/ or for removing any legal injury which is in the public law field. Any dispute arising out of a contract is a dispute pertaining to private law and the remedy is not by way of a petition under Article 226 of the Constitution but by way of a suit or any other proceeding which in lieu of a suit is available to any party to the contract.

(2.) Writ petitioner-respondent has moved this Court seeking a direction to the appellant to pay the amount due to him on the basis of the quoted right (sic. rate) in the contract without any reduction. Learned single judge has noted certain undisputed facts and mentioned about the letter of the Superintending Engineer dated 1-2-1997 under which the petitioner-respondent was asked to give a fresh undertaking and the petitioner-respondent replied to the same saying that it was an unfair undertaking, yet agreed to give the undertaking in order to obtain the contract, thereafter stated, the contract was awarded to the petitioner and while the work was going on, the total quantity was reduced. Consequently while settling the bills the Department insisted upon the enforcement of the second undertaking and reduction of the payable amount to the petitioner-respondent. Mainly on the principle that the undertaking which the Superintending Engineer had taken was one opposed to public policy and thus void under Section 23 of the CONTRACT ACT, 1872, learned single judge has held that the recourse to an unconscionable clause in the contract was not permissible and accordingly concluded:

(3.) The question whether an agreement is unconscionable and is opposed to public policy and thus void undef Section 23 of the CONTRACT ACT, 1872 cannot be one only of law which can be answered by the Court without any reference to the facts. Any adjudication as to the validity or otherwise of a condition of contract in a given situation has to be decided with reference to such attendant facts and circumstances which alone will show whether the impugned condition was opposed to public policy. Moreover, a person who has agreed to a condition of contract, it is said, with a view to grabbing the contract and grabbed the contract, cannot be said to be an innocent victim of the dictates of the Superintending Engineer to which he yielded and accordingly agreed to a certain unconscionable clause in the contract. Contract is always achieved by conscientious ad idem. Such, thus, being the conduct of the petitioner-respondent, to say at his instance that he yielded to the dictates of the Superintending Engineer would amount to putting the clock back to the time when the contract was offered to the petitioner-respondent on the above condition. If petitioner-respondent was genuinely concerned with a condition which according to him was opposed to public policy he should invoke this Court's jurisdiction before contract was awarded. The relief granted to the petitioner-respondent by the impugned judgment, in our view, is not sustainable. The impugned judgment for the said reason is set aside. In the result, the appeal is allowed and the writ petition is dismissed but on the facts and in the circumstances of the case without costs.