LABORATORY SALES CORP Vs. STATE

JUDGEMENT

(1.) PETITIONER -firm is dealing in the supply of scientific equipments, chemicals and glassware under the name and style of Laboratory Sales Corporation, Srinagar. Divisional Level Purchase Committee, respondent No. 3, designated as its convener, constituted by the Government for the purchase of scientific equipments invited tenders and quotations from various parties for the supply of scientific equipments. The Committee, however, approved the rates of various items to be purchased by various Colleges and respondent No. 2 placed an order under his No. 467 dated: 4.3.1993 to the petitioner for the supply of scientific equipments described in the list. In the list, an item has been described as "Michelson Interfro Meter OSAW with Unit A, B, C, D, E, G, and J with base plate". In pursuance of the supply order, the requisite instruments/equipment was supplied and handed over to the concerned laboratory Assistant against proper receipt on 5.3.1993. It is also stated that a detailed invoice No. LSC/669/92 dated: 5.3.1993, giving details of the items supplied to the College, was also provided along with delivery of the challan. The amount claimed by the petitioner against this invoice was shown as Rs. 32,391.21. Further contention of the petitioner is that the respondent. When doubted the genuineness of the equipment supplied, clarified all the doubts when approached for the release of the payment. However, the respondent No. 2, in response to the demand for the payment of the price of the equipment supplied, had written a letter informing the petitioner that the equipment supplied to the Institution bears a catalogue number totally different from the catalogue number of the equipment as indicated in the price list and the catalogue book issued by the Oriental Science Apparatus Workshop, Amballa. This was the basis of the doubt as to the genuineness of the apparatus being different from the one shown in the catalogue and respondent No. 2 asked the petitioner to remove the said apparatus from the Institution. The petitioner further stated that respondent No. 2 without any reason with held the payment of the equipment supplied to them and in respect of which the petitioner has earlier filed a civil suit and the stand of the respondents in the written statement, was that instead of applying OSAW "Michelson Interferometer", the petitioner -plaintiff in the said suit had supplied the Interferometer under catalogue No. 23318, which on examination, was found to be totally different. It was further the stand of the respondents in the said suit that the payment could not be released unless the genuineness of the apparatus is ensured. The said litigation was, however, dismissed for non -appearance of the petitioner, who happens to be the plaintiff in the said suit. The petitioner has thus approached this Court seeking a mandamus directing the respondents to release the payment of the petitioner along with interest as per the bill provided to them in respect of the equipment/apparatus in pursuance of the supply order in the year 1994.

(2.) THE respondents in their objections, have taken a stand that the petitioner has raised disputed questions of fact which cannot be determined in exercise of the writ jurisdiction. It is also stated that the petitioner seeks enforcement of his right purely based upon contractual obligation for which an alternative remedy is available and the writ jurisdiction of the High Court cannot be invoked . The fact that goods, having not been supplied strictly in accordance with the specifications provided in the relevant catalogue, has raised a suspicion about the genuineness of the apparatus/instrument which is a disputed question of fact which can be determined only on evidence and for which alternative remedy is available and thus cannot be adjudged in exercise of jurisdiction under Art. 226 of the Constitution and have thus submitted that the petition is not tenable in law. Heard learned counsel for the parties and considered the rival contentions meticulously.

(3.) It is not in dispute, that the dispute between the parties pertains to the genuineness of the equipment/instrument supplied by the petitioner in pursuance of the supply order issued by the respondents. The petitioner, when approached the respondents for release of the price of the equipment supplied, the same was refused till the genuineness of the equipment is ensured as per specifications in the catalogue. This clearly shows that the petitioner seeks the performance of contractual obligations and the matter pertains to the recovery of the amount for which an alternative remedy is available to him by way of civil suit for recovery of money or specific performance of contract. It is contended by the learned counsel for the respondents that discretionary power vested with the High Court under Art. 226 of the Constitution cannot be invoked and exercised in the facts and circumstances of the case. Admittedly, the rights of the petitioner, if any, are stated to be based on contract for which he was obliged to avail alternative, efficacious remedy by filing a suit. It is pertinent to point out that the powers conferred upon the High Court under Art. 226 of the Constitution are discretionary in nature, which can be invoked for the enforcement of any fundamental or legal right arising out of an agreement particularly in view of existence of efficacious alternative remedy. There is no bar to stretch the writ jurisdiction for granting the appropriate relief provided there are peculiar and special facts notwithstanding the existence of alternative, efficacious remedy. In the instant case, I do not notice any special circumstance which could be held to persuade the Court to deviate from the settled proposition of law regarding the exercise of writ jurisdiction under Art. 226 of the Constitution. One of the grounds gives the exercise of the discretionary power, unless case would be that in the matters of recovery of money, the petitioner would not be able to establish his claim in the summary proceedings under Art. 226 of the Constitution because it requires detailed examination of the evidence particularly so when the respondents have disputed the genuineness of the equipment supplied and its price has been with -held till the genuineness supplied and its price has been with -held till the genuineness of the equipment is ensured as per the details given in the catalogue. The object of Art. 226 of the Constitution is the enforcement and not the establishment of the right. That apart, a petition under Art. 226 of the Constitution cannot be converted into a suit. This petition is, therefore, not maintainable as equally efficacious alternative remedy by way of civil action is available, which debars the Writ Court from granting appropriate relief. In such case of highly disputed question of fact. Civil Court would be an appropriate remedy for decision.