K B TIWARI ELECTRICAL CO PVT LTD Vs. NORTH EASTERN HILL UNIVERSITY AND ORS
HIGH COURT OF MEGHALAYA
K B Tiwari Electrical Co Pvt Ltd
North Eastern Hill University And Ors
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(1.) The instant Civil Revision Petition is directed against the Impugned Order dated 31.01.2013 passed by the learned Assistant to the Deputy Commissioner, Shillong in Misc. Case No. 75(T) 2012 arose out of Money Suit No. 40(T) 2012.
(2.) The Petitioner's case in a nutshell is that:
"The humble Petitioner is a Company is engaged in electrical and civil work on contractual basis anywhere in India and Respondent No. 1, 2 & 3 representing the North Eastern Hill University within the jurisdiction of this Hon'ble Court. The Petitioner entered into an agreement with the Respondent University on 23.12.1989 to carry out various works and the humble Petitioner commenced and executed various works under the aforesaid contract as per drawings provided by the Respondent from time to time. During the course of execution of the contract the volume of the work had increased by more than 25% in proportion and total work of Rs. 1, 04, 03, 149.79 (Rupees One Crore Four Lac three thousand one hundred forty nine and paise seventy nine) only was executed by him the Respondent did not consider the revised rates interalia on the ground that the humble Petitioner has committed a breach of Contract by not completing the Contract work within the stipulated time and also within the extended period allowed from time to time which is however not actually correct.
In the instant case, the Respondent subsequently asked the Petitioner to submit proposal quoting lump-sum amount for settlement of all outstanding dues and made an offer of Rs. 75.00 lakhs for one time settlement which being scanty was not accepted by the Petitioner and that had led to the reference of the disputes to arbitration in July, 1995. The Respondent also addressed a Letter to the Petitioner with certain terms and conditions inter-alia stated that after due consideration and terms of the offer the Petitioner was required to withdraw all his claims before the arbitrator and all court cases to enable them to re-fix a date for talk on compromise as offered by the Petitioner Company but the same could not be accepted by the Petitioner and subsequently Shri B.S. Syngai was appointed as the Sole Arbitrator by the University who delivered his award on 26.04.1996. But the Petitioner being highly aggrieved upon the impugned Arbitration Award, preferred a Civil Revision Petition being No. 62/1997 before the Hon'ble High Court, Shillong Bench and the Respondent University was directed vide Judgment and Order dated 18.03.1997 to release 25% of money as advance and allowed the Petitioner to continue the electrification work.
In the meanwhile the Assistant to the Deputy Commissioner, Shillong vide Order dated 07.02.97 passed in (Arb) Misc. Case No. 35(T) of 1996 directed the Sole Arbitrator to revise the earlier award dated 26.04.1996 and therefore the Award was revised by the Sole Arbitrator on 01.03.1997. Thus, the humble Petitioner and the Respondent University both filed their respective objections against the revised award dated 01.03.1997 in the Court of the Hon'ble Assistant to the Deputy Commissioner, Shillong where the Petitioner claimed an outstanding amount of Rs. 15, 64, 000/- towards the loss on account of Fire and a sum of Rs. 15, 54, 000/- on account of Theft of the goods from the premises of the Respondent and also a sum of Rs. 5, 00, 000/- for the losses incurred in the work done due to curfew imposed from time to time.
Moreover, both the parties again agreed for settlement of the dispute outside the Court and the Respondent University called a meeting on 02.09.2003 whereby the terms and conditions of the settlement were agreed upon and to settle the bills they carried out joint measurement of the works executed by the Petitioner and there were no disputes as to the measurements between the parties. However having done the measurements the Respondent University did not calculate the final bill in accordance with the measurement which has led for the irreparable loss and injury to the Petitioner as loss sustained by him has been increasing every day. Despite several requests of the Petitioner the Respondent University did not clear the outstanding payments of the humble Petitioner once again.
Petitioner having no other alternative preferred a Writ Petition being W.P. (C) 484/2007 before the Hon'ble Supreme Court of India under article 32 of the Constitution of India but the Hon'ble Supreme Court did not entertain the said Writ Petition vide Order dated 07.09.2007 and the Petitioner also served a Legal Notice dated 18.09.2007 to the Respondent University to clear the dues in response to that, the Respondent University vide letter dated 29.11.2007 stated that they will re-look into the claim of the Petitioner.
Despite the assurances and upon failure on the part of the Respondent University to clear the legitimate dues of the Petitioner the Petitioner referred a Writ Petition being W.P. (C) 111 (SH) of 2008 for issuance of Writ of Mandamus/Certiorari against the Respondent University for payment of sum of Rs. 87, 78, 762.58/- (Rupees Eighty Seven Lakh Seventy Eight Thousand Seven Hundred Sixty two and paise fifty eight) only but subsequently it was withdrawn by the Advocate of the Petitioner without instructions and the Hon'ble Gauhati High Court vide order dated 03.07.2009 allowed the withdrawal of the said Writ Petition with a liberty to approach the Civil Court and on being aggrieved by the said impugned Order dated 03.07.2009, the humble Petitioner herein approached the Hon'ble Supreme Court by preferring S.L.P. (C) No. 4623/2010 was withdrawn on 22.02.2010. But the High Court vide order dated 26.10.2010n refused to review/modify the Order dated 03.07.2009.
The humble Petitioner against the aforesaid order of the Hon'ble High Court preferred an SLP before the Hon'ble Supreme Court, which however was dismissed having no other option but to file a Money suit before the Court of Competent Jurisdiction. The Humble Petitioner has filed a Money Suit bearing No. 40(T) of 2012 in the Court of the Assistant to the Deputy Commissioner, Shillong valued at Rs. 3, 38, 78, 902/- (Rupees Three Crores thirty eight Lacs seventy eight thousand Nine hundred two) only together with a Misc. Case No. 75(T) 2012 being the Petition for Condonation for delay. But the Learned Assistant to the Deputy Commissioner, Shillong dismissed the Condonation Petition filed by the humble Petitioner and consequently also dismissed the Money Suit being M.S. No. 40(T) of 2012 vide order dated 31.01.2013.
It is an admitted position that the Petitioner's running bill i.e. 9th escalation bill and final bill have not been settled till date by the Respondent University even though same were submitted nearly 13 years back and the same was not settled on one pretext or another.
Hence the Humble Petitioner begs to state that he is barred from filing an Appeal and therefore the instant revision Petition under Rule 36-A of the Rules for the Administration of Justice and Police in Khasi and Jaintia Hills 1937 read with Article 227 of the Constitution of India has been preferred as the only remedy available to him."
(3.) Being aggrieved by the Impugned Order dated 31.01.2013 petitioner approached this court by way of this instant Revision Petition.;
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