IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 8919 of 2021

MINESH ARVINDBHAI SHAH

Versus

UCO BANK

Appearance:
MR RAVINDRA SHAH(1299) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 28/06/2021

ORAL ORDER
1. By way of this petition filed under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:-

(A) to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned action of the respondent banks in not handing over the originals of title deeds of bungalow, E/40, Ayojannagar cooperative housing society Ltd, near Shreyas railway crossing, Vasna, Amdavad to the petitioners and to command the respondents banks to handover the originals of title deeds of the said property deposited by Shailesh Vishwanath Raval respectively with the respondent 2 Bank of Baroda and respondent 3 Central bank of India;
(B) pending hearing and final disposal of the petition, to direct the respondent banks to forthwith handover to the petitioners, the originals of title deeds of bungalow E/40, Ayojannagar cooperative housing society Ltd, near Shreyas railway crossing, Vasna, Amdavad deposited by Shailesh Vishwanath Raval respectively with the respondent 2 Bank of Baroda and respondent 3 Central bank of India upon such terms and conditions as the honourable court may deem fit and proper in the facts and circumstances of the case;
(C) pending hearing and final disposal of the petition, to direct the respondent banks to forthwith take appropriate steps/measures for diligently and expeditiously prosecuting C/SCA/8919/2021 ORDER DATED: 28/06/2021 the pending OA 32/2005 filed by respondent 3 Central bank of India before the Debs Recovery Tribunal (DRT)-I, Amdavad fior getting it finally adjudicated on merits within a stipulated time frame as may be deemed fit and proper by the honourable court in the facts and circumstances of the case;
(D) to award the costs of the present petition from the respondents;
2. The case of the petitioners is that the respondent No.1 Bank, i.e. UCO Bank, had undertaken an auction prior to 2007 of the property in question, being Bungalow No.E/40, Ayojannagar Cooperative Housing Society Ltd, near Shreyas Railway Crossing, Ahmedabad for a sum of Rs.45.25 lac in response to the proceedings initiated by it under the provisions of the Securitization and Reconstruction of the Financial Assets and Enforcement of the Security Interest Act, 2002 (hereinafter referred as ‘the Act’) read with Rules of 2002. It is the case of the petitioners further that despite selling the property, since the respondent No.1 bank was not executing sale deed in favour of the first petitioner, Special Civil Application No.13502 of 2008 was filed before this Court for seeking direction for executing a sale deed and further reliefs. After service of process, Hon’ble Court after hearing was pleased to dispose of the petition vide order dated 23.12.2009 with a direction including execution of sale deed by respondent No.1 bank in favour of the first petitioner. Despite the said direction, since respondent No.1 bank was not adhering to nor complying with the order of this Court, Misc. Civil Application No.297 of 2010 came to be filed seeking clarification of the aforesaid order, but the Hon’ble Court did not entertain the application and issued a further direction to the respondent No.1 bank to execute sale deed within a stipulated time else, would invite a further consequence and the C/SCA/8919/2021 ORDER DATED: 28/06/2021 Misc. Civil Application was disposed of vide order dated 15.2.2010. It is only thereafter the respondent No.1 execute sale deed on 8.3.2010.

2.1. It is the case of the petitioners that despite the aforesaid circumstance, the respondent banks were creating obstruction with regard to the said immovable property in question and the respondent No.2 and 3 banks were claiming charge over the property as according to them, the erstwhile owner took finance but in any case, the sale deed came to be executed on 8.3.2010, preceded by sale certificate dated 10.2.2007, and the property in question was converted into a liquid cash of Rs.45.25 lac, over which they (respondent Nos.2 and 3 banks) claimed their charge.

2.2. According to the averments of the petitioners themselves, on 19.4.2000, respondent No.2, i.e. Bank of Baroda, filed Civil Suit No.2356 of 2000 before learned City Civil Court, Ahmedabad for recovery of an amount of Rs.5,99,897/- against M/s. Hariom Salt Suppliers, a partnership firm of Mr. Shailesh Vishwanath Raval, who was a partner along with the partners indicated. It is the case of the petitioners that the said civil suit got dismissed for want of prosecution only in the year 2018 vide order dated 29.8.2018.

2.3. According to the petitioners, they have learnt that on 14.2.2005, respondent No.3, i.e. Central Bank of India, filed Original Application No.32 of 2005 before the Debt Recovery Tribunal-I, against Shri Krishna Plastic Industries, in which erstwhile owner Mr. Shailesh Vishwanath Raval was one of the guarantors and as such, respondent No.1- UCO Bank, respondent No.2 Bank of Baroda, Naroda Nagrik Sahkari Bank C/SCA/8919/2021 ORDER DATED: 28/06/2021 Ltd. and Union Bank of India are trying to recover the outstanding amount of loan given to their borrowers, in which erstwhile owner Mr. Shailesh Vishwanath Raval is a centralized person, visible from the assertion of the petitioners. However, the petitioners relying upon the earlier orders passed by this Court dated 23.12.2009 in Special Civil Application No.13502 of 2008, order dated 1.8.2005 passed in Special Civil Application No.4123 of 2005 and upon auction being confirmed, have reiterated that the said security of immovable property is in terms of liquid cash of Rs.45.25 lac, over which the respondent No.3 can make its claim subject to its succeeding in O.A. No.32 of 2005 before the DRT. It has been reiterated that when appropriate resolution effecting transfer in the name of the first petitioner has taken place and the petitioners being real brothers, had common businesses and properties were held jointly, as per later family arrangement, it was decided to get the said property in the name of the second petitioner and a Conveyance Deed dated 31.3.2014 was also submitted, pursuant to which, the society, i.e. Ayojannagar Co-operative Housing Society Ltd. passed a resolution on 12.7.2016 effecting transfer in the name of the second petitioner. By making certain further averments, it has been reiterated that by virtue of the sale having been finalized in favour of the first petitioner originally, the immovable property became totally free from the mortgage or charge claimed by respondent No.3 bank and as such, the respondent Nos.2 and 3 banks are obliged to handover the original title deeds with respect to the property to the petitioners. Despite the request having been made, the petitioners are not being given the original title deeds lying with respondent Nos.2 and 3 banks though the amount has been paid, according to the petitioners, C/SCA/8919/2021 ORDER DATED: 28/06/2021 way back in 2007.

2.4. It has been asserted that thereafter, a notice came to be issued on 15.5.2021 by the first petitioner to the respondent Nos.1 and 2, calling upon them to handover the original title deeds deposited by Mr. Shailesh Vishwanath Raval with respondent No.2 Bank of Baroda. Despite the notice having been received, none of the respondents, precisely respondent Nos.1 and 2 banks, have not responded to the petitioners and as such, the petitioners are constrained to approach this Court by way of the present petition. It is asserted that though they were called upon to take further steps to get O.A. No.32 of 2005 to be adjudicated on merit at the earliest, but that has not been responded to, which ultimately led the petitioners to approach this Court by way of the present petition.

3. When the matter is taken up for hearing, learned advocate Mr. Ravindra Shah appearing for the petitioners has taken the Court to few documents attached to the petition compilation, including the observations made by the Court in its order dated 23rd December 2009 and subsequent orders, but when the Court pointed out the circumstance as to why the petitioners remained consciously silent for all these years and approached the Court only in the year 2021, despite according to the petitioners, they have finalized the transaction way back in 2007. But, instead of responding to the query of the Court, Mr. Shah has emphasized the observations which have been made in the previous proceedings and insisted to the grounds which have been taken and has requested the Court to deal with the contentions and then pass appropriate order and as such, under this circumstance, the Court is constrained to narrate the grounds C/SCA/8919/2021 ORDER DATED: 28/06/2021 which have been taken by the petitioners, which are deduced hereunder:-

(A) That the impugned action of the respondents 1 to 3 banks in not handing over the originals of the title deeds deposited by Shailesh Vishvanath Raval with the respondents 2 and 3 banks of the aforesaid immovable property being bungalow E/40, Ayojannagar cooperative housing society Ltd, near Shreyas railway crossing, Vasna, Amdavad is grossly arbitrary, illegal and without any authority of law.
(B) That the petitioners are the owners of the said property more particularly as aforesaid under the various orders passed by the honourable court, being the successful bidder of the auction proceeding undertaken by the respondent 1 UCO bank and upon depositing the entire sale consideration of Rs.45.25 lakh with it, the sale certificate dated 10/02/2007 issued by the respondent 1 UCO bank at Annexure B hereinabove and execution of the sale deed dated 08/03/2010 by the respondent 1 UCO bank in favour of the first petitioner. Further, the respondent 1 UCO bank has handed over the originals of title deeds deposited with it by Shailesh Vishvanath Raval to the first petitioner. Upon the sale of the immovable property of the aforesaid bungalow E/ 40 of Ayojannagar cooperative housing society Ltd by the respondent 1 bank to the first petitioner for an amount of Rs.45.25 lakh, it has culminated/converted into a movable property in terms of liquid cash of = 45.25 lakh over which the respondent 3 bank can make its claim subject to it succeeding in the OA 32/2005 before the DRT. However, in view of the same, the aforesaid immovable property is totally free from the mortgage/charge claimed by the respondent 3 bank and no mortgage/lien/charge/encumbrance of whatsoever nature remains on the said property. Moreover, the Civil Suit 2356/2000 filed by the respondent 2 Bank of Baroda before the City Civil Court has already been dismissed on 29/08/2018. Thus, the impugned action of the respondent banks in not handing over the originals of title deeds in the custody of respondent 2 and 3 banks is without any lawful right or authority of law.

(C) That the respondent banks are concerned with the outstanding dues of their respective loans given to Shailesh Vishvanath Raval. As aforesaid, the same has culminated/converted into a movable property in form of liquid cash of Rs.45.25 lakh even as observed by this honourable court. The immovable property does not and cannot have any charge of whatever nature once the same is C/SCA/8919/2021 ORDER DATED: 28/06/2021 sold to the petitioners and the entire sale consideration having been received by the respondent 1 UCO bank from the petitioners and more particularly when the sale certificate dated 10/02/2007 at Annexure B hereinabove specifically mentioning that “The sale of the scheduled property was made free from all encumbrances known to the secured creditor” which is also taken note of by the honourable court. Under the circumstances, the respondent banks are duty bound to hand over the title deeds to the petitioners as demanded. Even otherwise, no fruitful purpose is served in retaining the same by the respondent 3 Central bank of India when it has filed a money recovery application being OA 32/2005 before the DRT and ultimately if it succeeds in the same, it would be entitled to its money from the amount of % 45.25 lakh lying with the respondent 1 UCO bank. Further, the Civil Suit 2356/2000 filed by the respondent 2 Bank of Baroda has already been dismissed. Under the circumstances, the respondents are bound to hand over the title deeds to the petitioners as demanded.

(D) That the impugned action of the respondent banks violates the petitioners’ fundamental right guaranteed under Article 19 (1)(e) of the Constitution of India. The same also violates the petitioners’ constitutional right to property under Article 300-A of the Constitution of India.

(E) It is submitted that the petitioners are businessmen. For the purpose of their businesses, it is obvious that they need working capital, funds etcetera from time to time. When any financial assistance is taken from any monetary body including financial institutions like banks, NBFCs etcetera, such financial assistance is secured by mortgage of immovable properties. For the purpose of continuing business activity more particularly in recent times when there is a global pandemic of COVID-19, the petitioners are unable in getting financial assistance from such monetary bodies despite offering the security of the aforesaid immovable property because the petitioners are not having all the originals of the title deeds deposited by the erstwhile owner Shailesh Vishvanath Raval with all the respondent banks. The same violates the petitioners’ fundamental right to carry on their trade or business guaranteed under Article 19 (1)(g) of the Constitution of India.

(F) That the respondent 2 Bank of Baroda’s action of not returning the originals of the title deeds deposited with it by the erstwhile owner Shailesh Vishwanath Rawal to the petitioners despite its Civil Suit 2356/2000 being dismissed C/SCA/8919/2021 ORDER DATED: 28/06/2021 by the learned City Civil Court long back as on 29/08/2018 smacks malafides coupled with utmost arbitrariness, abuse of power and misuse of authority. The glaring fact is that despite receiving the aforesaid notice dated 15/05/2021, it has the audacity not only to not hand over the title deeds to the petitioners but not even responding the said notice. Despite it being the obligation of the respondent 1 UCO bank to collect such documents from the erring respondent 2 Bank of Baroda and in turn handover the same to the petitioners, the respondent 1 UCO bank has utterly failed in discharging its solemn duty which calls for interference by the honourable court.

(G) That though in the earlier set of proceeding, the honourable court did not favourably consider the prayer of the first petitioner for handing over the original title deeds, much time i.e. more than 11 years has elapsed since the order dated 23/12/2009 passed by the honourable court and there is a stark change in circumstances. The Civil Suit 2356/2000 filed by the respondent 2 bank of Baroda has been dismissed as aforesaid. That apart, as per the impression and assurance given by the respondents banks collectively to the honourable court during the course of the said proceedings of SCA 13502 of 2008 and MCA 297 of 2010, not only the Civil Suit 2356/2000 filed by the respondent 2 Bank of Baroda before the City Civil Court but the OA 32/2005 filed by the respondent 3 Central bank of India before the DRT were to be expeditiously conducted by them which has never happened. The petitioners were and are not a party to either of the said proceedings. As can be seen, none of the respondent banks has any interest or zeal for diligently prosecuting the said proceedings much less expeditiously. It was and is not within the reach or control of the petitioners to get conducted such proceedings diligently and expeditiously. In view of the same as also the fact that the sale of the aforesaid property was made free from all encumbrances to the petitioner coupled with the fact that the amount of Rs.45.25 lakh paid by the petitioners to the respondent 1 UCO bank towards the entire consideration of the immovable property has culminated/converted into and the said money is property in terms of liquid cash, even as observed by the honourable court. Further, when it is kept open by the honourable court that if the respondent 3 Central bank of India succeeds in its claim in OA 32/2005 before the DRT, it would be entitled to such amount from the said amount of Rs.45.25 lakh and therefore also no fruitful purpose is served by retaining the originals of title deeds deposited by Shailesh Vishwanath Raval with the respondent 3 Central bank of India and it is required to C/SCA/8919/2021 ORDER DATED: 28/06/2021 forthwith hand over the same to the petitioners.

(H) That there is no genuine interest or zeal of the respondent banks in conducting the proceedings initiated by them either before the City Civil Court or before the DRT and the same speaks for itself. Since the respondent 1 UCO bank has already secured the entire value of the aforesaid property i.e. Rs.45.25 lakh from the first petitioner long back in the year 2007 and the said amount still lying with it, it is obvious that it would not show any interest in diligently and expeditiously prosecuting the said proceedings. The ill will and callous attitude of the respondent 2 Bank of Baroda for expeditious conduct of Civil Suit 2356/2000 more particularly even after the aforesaid order dated 23/12/2009 passed by the honourable court in the Special Civil Application 13502 of 2008 for a period of about 9 years and till date a period of more than 21 years having elapsed since the filing of the said Civil Suit does not require any further elaboration and the petitioners cannot be made to be sufferers thereof. Similarly, the respondent 3 Central bank of India though having filed its money recovery application being OA 32/2005 long ago i.e. about 16 years back and all the respondents banks being parties to the said proceeding, the said proceeding has not moved ahead despite a period of more than 12 years of passing of order by this honourable court also reflects the attitude of the respondents banks that they need not bother as their pecuniary interests have been secured and taken care of by the honourable court in as much as the entire sale consideration of Rs.45.25 lakh is lying with the respondent 1 UCO bank which is to act in accordance with the earlier directions issued by the honourable court.

(I) That even otherwise, the impugned action of the respondent banks being illegal and without authority of law deserves to be struck down by the honourable court.

4. In view of the aforesaid assertions made on oath and the submissions made by learned advocate Mr. Shah, the Court again asked Mr. Shah as to why there was conspicuous silence over all these years by the petitioners, but Mr. Shah did not want to reveal the same and instead has emphasized the observations made by this Court in earlier litigation which came to be disposed of way back on 23.12.2009 and avoided the query C/SCA/8919/2021 ORDER DATED: 28/06/2021 raised by the Court. It is under this set of circumstance, the Court is examining the matter as to whether in a given situation, the reliefs sought in equitable jurisdiction deserves to be granted in extraordinary jurisdiction under Article 226 of the Constitution of India or not.

5. Before coming to the conclusion, following few circumstances are not possible to be unnoticed by the Court:-

(1) It is asserted on oath by the very petitioners in para 2.3 that:-

“….The respondent 1 handed over the original title deeds to the first petitioner which were deposited with it by Mr. Shailesh Vishvanath Raval, the erstwhile owner of the property.”

There further appears a contradictory stand on oath by these very petitioners in para 2.10 on internal page 9, which reads as under:-

“…… In view of the above, the aforesaid immovable property begin totally free from the mortgage/ charge claimed by the respondent 3 bank and no mortgage/ lien/ charge/ encumbrance of whatsoever nature remaining on the said property, the respondent 2 and 3 banks are obliged to hand over the originals of the title deeds deposited respectively with them of the aforesaid immovable property of bungalow E/40, Ayojannagar society to the petitioners, be it directly or through the respondent 1 UCO bank.”

“……….The petitioners cannot be left in lurch for an indefinite period of time by the respondent banks in consort by not handing over the originals of the title deeds of the bungalow lying with the respondents 2 and 3 banks, though the entire sale consideration has been paid to the respondent 1 UCO bank by the petitioner long back in the year 2007 which it is already holding as a property in terms of liquid cash….”

(2) Yet another averment on oath made in para 2.11 is that:-

“It is submitted tht notice dated 15/05/2021 was issued by the first petitioner to the respondent 1 and 2 banks calling upon them for handing over the originals of the title deeds deposited by Shailesh Vishwanath Raval with the respondent 2 Bank of Baroda…………”

Therefore, on one hand, these very petitioners on oath are indicating clearly that pursuant to the transaction, respondent No.1 bank has handed over the original title deeds to the first petitioner, which were deposited by the erstwhile owner, whereas in subsequent paragraphs, i.e. in para 2.10 and 2.11, some different version is coming out on oath and therefore, on the basis of this self- explanatory assertion on oath, the case put up by the petitioners is not sounding any confidence.

(3) Yet, another circumstance, which is mentioned in para 2.11 is that in the notice dated 15.5.2021, a request was also made to take appropriate steps/ measures to get O.A. No.32 of 2005 pending before DRT adjudicated and disposed of on merit at the earliest. So, it appears that knowing full well about the intricacies of the aforementioned controversy, an alternative request is made to get O.A. decided at the earliest. No prudent person will sit tight after depositing such a huge amount in the year 2007 and is choosing to issue notice in the month of May 2021 without taking any coercive step either in the form of ‘Stop Payment’ by the respective banks.

(4) Yet, another conduct of the petitioners which cannot be unnoticed is that when the Court clearly pointed out as to C/SCA/8919/2021 ORDER DATED: 28/06/2021 why the person who deposited such a sizable amount is not taking any action over this much period and suddenly, wake up from slumber in 2021, despite having knowledge about the earlier round of litigation before this Court as well as two parallel proceedings going on with regard to the property in question. But, to the surprise, learned counsel instead of answering to the query of the Court or clarifying the aforesaid situation, has emphasized upon the observations made way back in 2009 by this Court. This conduct is also quite surprising and cannot be unnoticed while exercising the equitable jurisdiction.

(5) Further, it is also revealing from the averment of the petitioners themselves that in between, pursuant to the family arrangement, even Ayojannagar Co-operative Housing Society Ltd. has passed a specific resolution on 12.7.2016 effecting transfer of bungalow in the name of the second petitioner and therefore, when this being the situation, to request now the Court to issue a writ of Mandamus of handing over the title deeds of the bungalow in question is questionable conduct and this being the equitable jurisdiction on the basis of the self- contradictory averments on oath, this Court is not inclined to exercise extraordinary jurisdiction, particularly when there are series of litigation in which the property appears to have been entangled and petitioners themselves waited consciously up-till now.

(6) Yet, another circumstance is that the respondent No.2 bank has already filed a civil suit, being Civil Suit C/SCA/8919/2021 ORDER DATED: 28/06/2021 No.2356 of 2000, which got decided rather dismissed for non-prosecution only in August 2018, but prima facie, the Court’s query was as to what steps have been taken by the petitioners, in that proceedings also, answer was given that such dismissal is known to the petitioners only recently and therefore, the petition is filed. The Court is not ready to accept such lame explanation without any basis and since there appears to be no cogent explanation in the averments contained in the petition. These petitioners are not possible to be accepted as such ignorant about the Court proceedings went on for quite long, in which the property in question is in controversy. It is these petitioners who have chosen to remain conveniently silent for a pretty long period of about more than 12 years and as such, this Court is not inclined to exercise the discretion which is equitable in nature. No case is made out by the petitioners and as such, the circumstances are not confident enough to accept the stand of the petitioners. No-doubt, the petitioners may be put to hardship, but then to avoid litigation which have been pointed out by the petitioners themselves, no mandate can be given, particularly when on one hand, the title deeds are handed over and on the other hand, not handed over, is the assertion of the petitioners. The petition contains seriously disputed version and a self- contradictory assertion on oath which has not inspired any confidence in this Court to issue a writ, as sought for.

6. At this stage, the Court is mindful of the observations made by Hon’ble Apex Court on the issue of delay and laches as also on the issue of disputed question of facts, how to be dealt C/SCA/8919/2021 ORDER DATED: 28/06/2021 with. The relevant observations, since kept in mind by the Court in the peculiar background of these facts,the Court deems it proper to reproduce hereunder.

(1) Para 6 to 10 in the case of Karnataka Power Corpn. Ltd. Through its Chairman Managing Director and Another Vs. K. Thangappan and Another reported in (2006)4 SCC 322, read as under:-

6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329). Sir Barnes had stated:

“Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.

But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party C/SCA/8919/2021 ORDER DATED: 28/06/2021 and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay.

9. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. It was stated in State of M.P. v. Nandlal (AIR 1987 SC

251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re- iterated in R.N. Bose’s case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also).

 

(2) Para 8 to 11 in the case of Orissa Agro Industries Corpn.Ltd. And others Vs. Bharati Industries and Others reported in (2005)12 SCC 725, read as under:-

8. In a catena of cases this Court had held that where dispute revolves round questions of fact, the matter ought not be entertained under Article 226 of the Constitution. (See: State Bank of India and Ors. v. State Bank of India Canteen Employees’ Union and Ors., [1998] 5 SCC 74, Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors. v. Sukamani Das (Smt.) and Anr., [1999] 7 SCC 298).

9. In the instant case the High Court has itself observed that disputed questions of fact were involved and yet went on to give directions as if it was adjudicating the money claim in a suit. The course is clearly impermissible. (See: General Manager Kisan Sahkari Chini Mills Ltd., Sultanpur U.P. v. Satrughan Nishad and Ors., [2003] 8 SCC 639, Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr., [2003] 4 SCC 317).

10. In National Highways Authority of India v. Ganga Enterpress and Anr., [2003] 7 SCC 410, it was observed by this Court that the question whether the writ petition was maintainable in a claim arising out of a breach of contract should be answered first by the High Court as it would go to the root of the matter. The writ petitioner had displayed ingenuity in its search for invalidating circumstances; but a writ petition is not an appropriate remedy for impeaching contractual obligations. (See: Har Shankar and Ors. etc. etc. v. The Deputy Excise and Taxation Commissioner and Ors., AIR (1975) SC 1121 and The Divisional Forest Officer v. Bishwanath Tea Co. Ltd., AIR (1981) SC 1368).

11. In M/s. Radhakrishna Agarwal and Ors. v. State of Bihar and Ors., AIR (1977) SC 1496, the types of cases in which breaches of alleged obligation by the State or its agents can be set up were enumerated. The third category, indicated is where the contract entered into between the State and the person aggrieved in non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and in exercise of executive power of the State. The present case is covered by the said category. No writ order can be issued under Article 226 to compel the authorities to remedy a breach of contract; pure and simple. It is more so when factual disputes are involved.

7. In above view of the matter, the petition being devoid of merit, stands DISMISSED with no order as to costs.