TMI Blog2014 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... reach of contract or specific performance of contract unless the contractual dispute has a public law element. - the powers under Article 226 are to be exercised by applying the Constitutional provisions and judicial guidelines and violation, if any of the fundamental rights and the Court would be reluctant to exercise the power of judicial review in rights on the basis of contracts. It was further held that a contract would not become statutory simply because it has been awarded by a statutory body. - writ petition to enforce the contractual claim was not maintainable and more so when the claim was barred by time. - LPA No.553/2010 - - - Dated:- 23-3-2012 - MR. RAJIV SAHAI ENDLAW, J. For the Appellant : Ms. Sangeeta Sondhi, Mr. Sanjeev Narula Mr. Ashish Virmani, Adv. For the Respondent: Mr. J.P. Sengh, Sr. Adv. with Mr. Mohit Gupta, Sumit Batra Ms. Ankita Gupta, Advs. JUDGMENT RAJIV SAHAI ENDLAW, J. 1. This Intra-Court appeal impugns the order dated 23rd March, 2010 of the learned Single Judge allowing W.P.(C) No.7225/2007 preferred by the respondents and consequently directing the appellants to release a sum of ₹ 67,57,072/- to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt. The respondents however along with the writ petition filed a copy of the response dated 1st April, 2003 of the appellants to an RTI query but only to the effect that ―the pending payment of M/s New Variety Tent House has been withheld due to some audit objections of Dte. of Audit raised during the special audit conducted in the year 2000 and the same will be considered after the settlement of Audit paras by the Dte. of Audit‖. Another response dated 21st May, 2003 to the same effect to another RTI query was also filed along with the writ petition. 4. The appellant in its counter affidavit to the writ petition before the learned Single Judge pleaded that the writ petition qua the contractual claim was not maintainable; that the appropriate remedy was to file a suit for recovery of money; that the remedy of suit had got barred by limitation; that the payments claimed pertained to the period 1999-2000 claim where for in writ petition filed in the year 2007 was palpably barred by time. On merits, though the receipt of three bills aforesaid for ₹ 67,57,072/- was not denied, it was pleaded that no assurance for payment had been meted out at any time. 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th June, 1999 respectively. In the absence of anything to show otherwise, under Article 12 of the Schedule to the Limitation Act, 1963, the limitation for recovery of the said hire charges was three years from the date when the hire became payable i.e. from the date of the bill. The said period of three years expired with respect to the first two bills on 26th April, 2002 and for the third bill on 22nd July, 2002. There is nothing to show that the date of payment was agreed to be any other. The writ petition seeking mandamus was filed only on 28th September, 2007. There is nothing to show any acknowledgment of liability within the meaning of Section 18 of the Limitation Act. 11. We have thus wondered whether money claim, suit for which had become barred by time/limitation, can be allowed in writ jurisdiction. The answer obviously is no. The learned Single Judge has brushed aside the valid plea of the appellant of limitation by referring to the directions issued in the writ petition being W.P.(C) No.6644/2007 filed by one M/s Ramesh Kumar Brothers. We are however unable to agree with the said reasoning. Firstly merely because the time barred claim of another has been allowed doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the same limitation on the summary remedy in writ jurisdiction. 15. The Supreme Court in Kerala Agro Machinery Corporation Ltd V. Bijoy Kumar Roy (2002) 3 SCC 165 held that the stage of proceeding has no relevance so far as the question of limitation is concerned. Similarly in S.S.Balu V. State of Kerala (2009) 2 SCC 479, it was held that relief on the ground of delay alone can be denied even though relief is granted to other person similarly situated. 16. We may also record that for extension of limitation, no reliance can be placed on response to RTI query. In the present case, the response is not found to contain any admission of liability so as to extend the period of limitation. 17. The counsel for the respondents has referred to:- a. Shankara Co-op. Housing Society Ltd. v. M. Prabhakar AIR 2011 SC 2161 but which is not found to be applicable; b. Union of India v. Tantia Construction Pvt. Ltd. 2011 (4) SCALE 745 laying down that the alternative remedy of arbitration is not an absolute bar to the invocation of writ jurisdiction; c Zonal Manager, Central Bank of India v. Devi Ispat Ltd. (2010) 11 SCC 186 to the same effect; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law; (iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the Civil Court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of powers conferred under Article 226 for payment of money; (iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the tax collected was without authority of law and there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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