PINAKI CHANDRA GHOSE,J. - (1.) This appeal is directed against an order passed by the Hon'ble Single Judge on 13th September, 2011 when His Lordship was pleased to hold that the writ petition is maintainable following a decision of the Division Bench in an identical matter in the case of Bharat Sanchar Nigam Limited v. B.M.W. Industries Limited and Ors in APO No. 495 of 2006. Following an unreported Division Bench judgment delivered on 18th April, 2007 in the said matter the Division Bench held that the writ petition is maintainable and further dismissed the appeal which was filed by the Bharat Sanchar Nigam Ltd. In the said decision as our attention has been drawn by the learned Counsel appearing on behalf of the appellant that the Division Bench held following the decision of the Mahabir Auto's case (AIR 1990 SC 1031) and also the decision in Dwarka Das Marfetia's case (AIR 1989 SC 1642) and further relied upon the decision of the Hon'ble Supreme Court in ABL International Limited and Anr v. Export Credit Guarantee Corporation of India reported in (2004) 3 SCC 553 , where the Hon'ble Supreme Court has summarized the law as to the maintainability of a writ petition in the writ jurisdiction in case of contractual obligation.
(2.) The Division Bench of this Court in the said unreported decision also quoted from the said decision which are as follows: "10. It is clear from the above observations of this Court in the said case, though a writ was not issued on the facts or that case, this Court has held that on a given set of facts if a State acts in an arbitrary manner even in a matter of contract, an aggrieved party can approach the court by way of writ under Article 226 of the Constitution and the court depending on facts of the said case is empowered to grant the relief .. .. .. .(See (2004) 3 SCC 553) 13....This judgment does lay down that as a rule in matters of contract the court's jurisdiction under Article 226 of the Constitution is ousted. On the contrary, the use of the words "court may ordinarily examine it unless the action has some public law character attached to it" itself indicates that in a given case, on the existence of the required factual matrix a remedy under Article 226 of the Constitution will be available .. .. "(See (1996) 6 SCC 22)
(3.) After noticing the said unreported Division Bench decision of this High Court the Division Bench after considering the said fact held that the writ petition is maintainable.;