M. Basheer v. State of Kerala & Ors. (WA No. 99 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** ## **WA NO. 99 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 24186/2021 OF HIGH COURT OF KERALA DATED 24.11.2021** ## **APPELLANT/PETITIONER:** M. BASHEER, AGED 73 YEARS, S/O. LATE MUHAMMED KUNJU, KALATHIL HOUSE, KAKKAZHAM P.O., ALAPPUZHA DISTRICT, PIN - 688 005. BY ADV. T.M.ABDUL LATHEEF ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 SUPERINTENDING ENGINEER (R&B) PWD SOUTH CIRCLE, THIRUVANANTHAPURAM, PIN - 695 001. - 3 THE EXECUTIVE ENGINEER PWD ROAD DIVISION, ALAPPUZHA, PIN - 688 001. SRI.K.V.MANOJ KUMAR, SR. G.P. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WA NO. 99 OF 2022 :: 2 :: ## **JUDGMENT** Dated this the 7[th] day of February 2022 ## **S.MANIKUMAR, C.J.** This writ appeal is filed challenging the judgment dated 24.11.2021 in W.P.(C)No.24186/2021 by which a learned Single Judge declined the reliefs sought for in the writ petition filed by the appellant/writ petitioner. 2. Appellant/writ petitioner was the registered PWD contractor having done various contract works of Kerala State Public Works Department. According to the appellant, there was huge delay in effecting payment. Certificates were issued by the concerned Department officials confirming the completion of the work. The appellant thereupon made claims for payment of interest for the delayed payment of contractual amount. However, no action was taken by the respondents. 3. Being aggrieved by this, on an earlier occasion, the appellant approached this court by filing W.P.(C)No.2187 of 2007. By Ext.P9 judgment, the court directed the respondent/State of Kerala to consider the claim of the appellant for interest. But as there was inaction on the WA NO. 99 OF 2022 :: 3 :: part of the respondent, the appellant/writ petitioner again filed W.P.(C) No.19739 of 2017. By Ext.P10 judgment, W.P.(C) No.19739 of 2017 was also closed without prejudice to the right of the appellant/petitioner to challenge the order passed by the Government as communicated through his counsel, if so advised. 4. Later, the appellant filed W.P.(C)No.24186/2021 seeking the following reliefs: “i)To call for the records relating to Exhibit P-1 to P-13 and to issue writ of certiorari quashing Exhibit P11 as it is unjust illegal and opposed to law. ii) To issue any writ order or direction commanding the 1[st] respondent to pay interest at the rate of 18% in the minimum which was paid by the petitioner to various banks and financial institutions for carrying out the work covered by Exts. P1 to P4 and also the retention amount payable to him at the rate of 10% of the total value of the work done by him which was retained from him for the above works with interest for the delayed payment of the said amount forthwith. iii) To issue any writ order or direction directing the 1[st] respondent to consider Ext.P12 and P13 giving opportunity to the petitioner to again produce documents in support of his claim if demanded by the respondents.” 5. By the judgment impugned in this writ appeal dated 24.11.2021 in W.P.(C)No.24186/2021, a learned Single Judge dismissed the writ petition. Relevant portion of the said judgment reads thus: WA NO. 99 OF 2022 :: 4 :: “7. It is trite law that a writ petition cannot be normally entertained for the purpose of payment of interest alone. Courts have been granting interest in respect of pensionery and other statutory claims of Government servants etc. However, this writ petition falls purely within the realm of contract. The interest may be payable to the petitioner under the Interest Act, but that will depend upon whether the delay caused in payment of contract amount to the petitioner is attributable to the respondents. Any finding or conclusion in that regard can be taken only after appreciating evidence and facts, which exercise cannot be undertaken by this Court under Article 226 of the Constitution of India. Therefore, this Court is of the firm view that in a contractual matter of this nature, this Court cannot consider the question of payment of interest. 8. The learned counsel for the petitioner relied on the judgment of the Hon’ble Apex Court in Thawardas Pherumal and another v. Union of India [AIR 1955 SC 468]. In the said judgment Hon’ble Apex Court held that interest will be payable in accordance with the Interest Act. However, the maintainability of a writ petition for payment of interest was not considered in the said judgment. Relying on Ravindran v. Public Works Department [2017 (4) KLT 759], the learned counsel for the petitioner contended that this Court had awarded interest to the petitioner in that case. However, it is clear that the question of maintainability of the writ petition for payment of interest alone was not considered in the said judgment. Again, the judgment in Punjab National Bank and others v. Atmanand Singh and Others [2020 (6) SCC 256] was one dealing with the question of alternate remedy and whether the High Court can interfere when an alternate remedy is available. The said judgment also did not support the proposition canvassed by the petitioner that a writ petition will be maintainable claiming payment of interest. For all the reasons stated above, this Court is of the considered view that the writ petition filed by the petitioner for a direction to pay interest on the delayed payment of contractual amount, is unsustainable. The writ petition fails and accordingly dismissed. This judgment will not preclude the petitioner from prosecuting Exts.P12 and P13 before the WA NO. 99 OF 2022 :: 5 :: appropriate authorities or from producing any further documents in support of the petitioner’s claim for interest before them.” 6. Mr.T.M.Abdul Latiff, learned counsel for the appellant submitted that the learned Single Judge was not correct in rendering the judgment holding that for claim of interest, writ petition is not maintainable. Another contention is that the writ petition is not only for the interest, but also for the retention amount, and Exhibit P11 being an order passed by the State Government and its department and not by any private person, coming under the scope of civil contract between individuals, and as the said order amounts to state action, constitutional remedy under Article 226 permissible. 7. Learned counsel for the appellant, relying on the judgment rendered by the Hon'ble Apex court in _**Punjab National Bank Vs. Atmanand Singh 2020 (6) SCC 256,**_ submitted that the writ petition is maintainable even in cases, where alternative remedy is provided. He submitted that it is the discretion of court to entertain even disputed questions of fact on sound judicial principles considering nature of controversy. Thus, according to the appellant, in cases where there is only a simple approach as to whether interest is payable or not, not WA NO. 99 OF 2022 :: 6 :: being a complicated issue, the learned Single Judge ought not have dismissed the writ petition as not maintainable. 8. Heard Mr.T.M.Abdul Latiff, learned counsel for the appellant and Mr.K.V.Manoj Kumar, learned Senior Government Pleader appearing for the respondents. Perused the pleadings and materials available on record. 9. The question to be considered in this writ appeal is the correctness of the findings arrived at by the writ court that in respect of interest claim; that writ petition is not maintainable, when the facts relating to the delay in payment of the contract amount was not at all controverted or denied by the department concerned. 10. It is evident from Ext.P11 Government Order G.O. (Rt)No.677/07/PWD dated 15.5.2007 that as per agreement conditions, there is no provision in the contract to pay interest for delayed payment of work bills. As per Rule 69 of MDSS (Madras Detailed Standard Specifications) which form part of the contract clearly provides that the contractor shall not be entitled for interest upon any payments in arrear or upon any balance which may on the final settlement of his accounts found due to him. WA NO. 99 OF 2022 :: 7 :: 11. Considering the entire facts and circumstances of the case, we find no reason to entertain the writ appeal as there is no error in the view taken by the learned Single Judge that in a contractual matter of this nature, writ court cannot consider the question of payment of interest. Writ appeal fails and it is dismissed accordingly. **sd/S.MANIKUMAR CHIEF JUSTICE** **sd/SHAJI P. CHALY JUDGE** jes WA NO. 99 OF 2022 :: 8 :: ## **APPENDIX** ## PETITIONER'S ANNEXURES: Annexure A1 TRUE COPY OF THE CERTIFICATE DATED 6/9/2013 ISSUED BY THE 3RD RESPONDENT. Annexure A2 TRUE COPY OF THE JUDGMENT IN OP NO.25099/1999 DATED 17/11/1999. Annexure A3 TRUE COPY OF THE JUDGMENT IN WA NO.2721/1999 DATED 21/1/2000. // TRUE COPY // P.S. TO JUDGE