Decided on July 20,2012

Vijay Saini Appellant


BARIN GHOSH,.J. - (1.) THERE has been some delay In preferring these appeals and, accordingly, Applications have been filed seeking condonation of delay in preferring the appeals. We have considered the averments made in the Applications for condonation of delay in preferring the appeals and, being satisfied with the sufficiency of reasons furnished therein, allow the Applications for condonation of delay in preferring the appeals.
(2.) THE subject matter of these appeals are identical. The facts giving rise to the writ petitions, on which a combined judgment and order was passed, which has been appealed against in these appeals, are also identical and laws applicable thereto are also identical. We have, accordingly, decided these appeals together. Heard learned counsel for the parties.
(3.) IN the writ petitions, appellants sought a mandamus directing payment of the outstanding bill due and payable by the respondents to the appellants under a contract performed by the appellants. I n the counter affidavit, it was stated that the appellants have performed the contract. It was also stated that, in view of non -sanction of the grant of funds, the payments cannot be made. If, on the basis thereof, the writ court had issued a writ of mandamus, the same would have tantamounted to awarding a money decree in the writ jurisdiction by the Court in favour of the writ petitioners. That is not permissible. The contract said to have been performed by the appellants contains an arbitration agreement. The writ court has, accordingly, asked the appellants to go before the arbitrator. Instead of going before the arbitrator. the present appeals have been preferred. Relying upon the observations of the Horible Supreme Court, made in paragraph 25 of the judgment rendered in National Insurance Company Ltd. vs. Boghara Polyfab Private Ltd., reported in (2009) 1 SCC 267, it was contended that, since the obligations of the appellants under the contract have been discharged and since the obligations of the respondents under the contract have not been discharged, there is no referable dispute under the arbitration agreement. We do not find any observation of the Honble Supreme Court to that effect, either in paragraph 25 of the said judgment or in any other part of the said judgment.;

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