TMI Blog2009 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... - On the basis of the letter dated 17th September, 2007 it is contended that since the letter dated 28th July, 2007 forms part of the agreement and the said letter stipulates about applicability of the service tax - Held that - the petitioner is not entitled to invoke the remedy of invoking writ jurisdiction under Article 226 of the Constitution of India for recovery of alleged amount of Rs.60,19,872/- on account of service tax with interest at 12% from the date of first payment of the service tax in the facts and circumstances of this case. The writ petition dismissed. - 11435 of 2009 - - - Dated:- 4-9-2009 - Anil Kumar, J. S/Shri Biswajit Bhattacharya, Sr. Advocate with Amit Punj, Advocate, for the Petitioner. Shri Ajay Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel for the petitioner has relied on AIR 1983 SC 848, Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. to contend that the statutory authorities cannot commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. Perusal of the precedent relied on by the petitioner reveals that it is distinguishable in as much as in the Gujarat State Financial Corporation (supra) the said corporation had entered into an agreement in the performance of its statutory duty to advance loan to a company and acting on the undertaking, that company had proceeded to undertake and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 28th July, 2007 whereby the respondent DDA had admitted their liability to pay the service tax. In the circumstances on the basis of the documents relied on by the petitioner it cannot be held that the respondent had admitted its liability of the service tax or the respondent is liable for the claim of the petitioner for an amount of Rs.60,19,872/- for service tax. Therefore, it cannot be held that the petitioner is entitled for the said amount from the respondent. If the said amount is not admitted by the respondent to be payable by the DDA, the alleged liability of the respondent to pay 12% simple interest is also not admitted. If on the basis of written agreement and documents, the petitioner is not entitled for any amount on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had held at page 572 in Para 28 as under: 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon it self certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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