The Greater Cochin Development Authority (Gcda) vs. National Trading Company

Short facts leading to the filing of this writ appeal are as follows: Writ petitioner/National Trading Company is a partnership firm engaged in the business of dealership of electrical items of Philips Electronics India Limited. The writ petitioner was authorised to channel partner of Philips Electronics India Limited at Ernakulam. During October 2017, FIFA under 17 World Cup 2017 was scheduled at Ernakulam. The authorities of the FIFA, found that the stadium was originally designed for Cricket and the lighting was not suitable as per the guidelines of the FIFA and therefore, there was need for urgent supply of 270 number of lamps in order to meet the FIFA standards. These lamps are special lamps used for sports application where there was HD video recording, since the colour of the object matters a lot during the telecast. The FIFA under 17 World Cup 2017 was about to commence on 7.10.2017 and in the last moment on 29.9.2017, the appellant/respondent (GCDA) on an emergent basis placed an order for 270 lambs by e-mail on the mutually agreed rates. As per the terms and

Since it was an emergent situation for supply and installation and due to upcoming holidays, as per letter dated 29.9.2017, the appellant/respondent (GCDA) requested to make immediate arrangement to deliver the materials to Kochi and agreed to pay the contract amount of Rs.45,55,980/- as per the purchase order on the next working day i.e. 3.10.2017 by DD, NEFT or RTGS. But the appellant/respondent has failed to make the payment and was prolonging the disbursement of the amounts stating that they are not bound to pay the GST and therefore the GST amount should be deducted from the invoice.

Being aggrieved by the non disbursal of the contractual amount of Rs.45,55,980/- in connection with supply of floodlight system at the appellant/respondent's Stadium at Kaloor in connection with FIFA under 17 World Cup 2017, which was agreed to be paid on the next working day i.e. 3.10.2017 and refusal to pay the GST, which is already remitted by the petitioner at the time of raising the invoice, the writ petitioner/respondent approached this court by filing writ petition.

Ext.P3 tax invoice (Credit Bill) issued by the respondent/writ petitioner on 3.10.2017, the GST to be paid by the appellant/respondent is Rs.6,94,980/- (CGST Rs.3,47,490/- and SGST Rs.3,47,490/-). Ext.P6 report dated 30.11.2018 of the Executive Committee [meeting conducted on 26.7.2018 under the Chairmanship of Hon. Chairman] that the appellant has

Writ petitioner has sought for a writ of mandamus commanding the respondent/appellant to pay the amounts due to the petitioner as per Exts.P1 and P3 forthwith. Another relief sought for in the writ petition is for mandamus commanding the respondent to release the admitted amounts to the writ petitioner pursuant to Exts.P1, P3 and P6 forthwith.

Adverting to the pleadings and submissions, a learned Single Judge passed an interim order on 28.2.2020 in W.P.(C)No.3376 of 2020, by which the appellant was directed to disburse the admitted amount of Rs.33,46,700/-, as per Ext.P6, to the writ petitioner/respondent, provisionally.

Aggrieved by this, instant writ appeal is filed contending, inter alia, on the following grounds: “A. The interim order passed by the learned Single Judge by allowing the alternate prayer of the writ petition is without appreciation of facts and law on the point and hence liable to be set aside. B. The learned Single Judge ought to have seen that a writ petition is not maintainable when the facts of case discloses that there the dispute is based on a contractual obligation and hence there is well established procedure of law and hence the writ remedy is not applicable, payment of dues, and the appellant disputed the amount claimed by the respondent, the learned Single Judge ought not have passed orders invoking Article 226 of the Constitution of India. C. The learned Single Judge ought to have seen that the remedy available for the respondent for breach of contract is to approach the competent civil court for adjudication of the

Ms.Mini.V.A., learned counsel for the appellant/respondent (GCDA) contended that as the dispute is based on a contractual obligation, the remedy available for the respondent, for breach of the contract is to approach the competent civil court for adjudication of the dispute. She further submitted that the remedy under Article 226 of the Constitution of India is a public law remedy, which cannot be resorted to in a case wherein the respondent alleges that there is breach of contract. In support of the above contention, she relied on a decision of the Hon'ble Apex court in Utharanchal Forest Development Corporation and Others v. Jaber Singh and others reported in 2007 (2) SCC 112, 2007 KHC 3047 wherein, it was held that a writ petition under Article 226 of the Constitution of India should not be entertained when a statutory remedy is available to the petitioner/respondent unless exceptional circumstances as held by the Hon'ble Apex Court. She further submitted that the respondent/writ petitioner has not furnished the agreement as requested by the appellant.

Per contra, learned counsel for the respondent/writ petitioner contended that on an emergent basis the appellant placed an order for 270 lamps by e-mail on the mutually agreed rates. As per the terms and conditions of the appellant and the Philips Electronics India Ltd., all payments have to be made in advance before the supply. Since there was an emergent situation for supply and installation, and due to upcoming holidays, as per letter dated 29.9.2017, the appellant/respondent (GCDA) requested to make immediate arrangement to deliver the materials to Kochi and agreed to pay the contract amount of Rs.45,55,980/- as per the purchase order, on the next working day i.e. 3.10.2017 by DD, NEFT or RTGS. Therefore, the respondent cannot now turn around and refuse to pay the agreed amounts on baseless contentions.

Learned counsel appearing for the respondent/writ petitioner further submitted that the writ petitioner is entitled to the whole amount, as agreed to by the appellant/respondent to be paid. More than 21/2 years had elapsed and no payments have been made till date. The writ petitioner is entitled to the admitted amounts due and the appellant/respondent cannot compel the writ petitioner to issue new invoices for the amounts unilaterally fixed by the respondent. Having acted on the basis of the promise, the appellant/respondent is barred by the principles of promissory estoppel from refusing to pay the legally due amount. It is also contended by the learned counsel for the respondent/writ petitioner that the respondent which is a statutory authority cannot refuse to pay the GST amounts. According to the

Heard the learned counsel for the parties and perused the material available on record.

Letter issued by the appellant/respondent dated 29.9.2017 (Ext.P1 in writ petition) reads as under: GREATER COCHIN DEVELOPMENT AUTHORITY P.B.No.2012 Phone:2205061 FAX 91484206230 Kochi-682 020 No.7093/E2/2017/GCDA Dated 29.9.2017 From The Secretary To Mr.D.Udayakumar General manager Philips Electronics India Limited Central Lighting Application Services C-47, Sector 57 Noida – 201 301 Sir, Sub: GCDA-Engg. Department-Supply of MSTER MHN-SA 200W/ 956400V XWHO UNP/1-270 Nos. Confirmation - Reg

As rightly contended by the learned counsel for the respondent, it is evident from Ext.P1, the appellant had agreed to the proposals for the supply of lamps in connection with the FIFA under 17 World Cup 2017. Appellant has agreed to pay the contract amount of Rs.45,55,980/-, on the next working date i.e., 3.10.2017 by DD, NEFT or RTGS. Appellant has requested immediate delivery of the lamps, which has been done. As per Ext.P1 letter dated 29.9.2017, the contract amount is Rs.45,55,980/-.

Ext.P6 decision of the Executive Committee dated 30.11.2018 reads as under: Decision of the Executive Committee File Number F2/7093/17/GCDA Dated 30.11.18 Decision No.154/2018-19 It has been decided as under after detailed discussion of the subject. (1) FIFA Authorities insisted in the 11th Task Force meeting that for conducting FIFA under 17 World Cup at Kaloor International Stadium the head light should have atleast 2000 lux. As per the report during the conduct of ISL only 1407 lux alone was obtained. Though preventive maintenance were done on 27.9.2017, 2000 lux as demanded by the FIFA has not been obtained. Since the FIFA competitions have to be conducted during October itself and LOC Infrastructure Manager, FIFA

It is evident from Ext.P6 report of the Executive Committee dated 30.11.2018 that the appellant has decided to pay a sum of Rs.33,46,700/-. Though it is contended by the learned counsel for the appellant, after the event was over, the cost of the bulb was reduced and thus the revised