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Stale claim is not to be adjudicated: High court of Patna

Inordinate delay on the part of the petitioners will lead to the non-interference of the court since entertaining a belated claim would only have the effect of inflicting hardship and inconvenience. The courts do not assist the tardy and the indolent and the lazy and the lethargic. This was held by Honorable Mr. Justice Mohit Kumar Shah in the case of Mukesh Kumar Singh vs. The State of Bihar through the Principal Secretary, Department of Road Construction Department [Civil Writ Jurisdiction Case No. 5809 of 2020] on the 12th of July, 2021 before the Hon’ble High Court of Bihar at Patna.

The brief facts of the case are, the petitioner, who is a contractor, was awarded contract work for construction of HL bridge (RCC) at Sariya and an agreement was entered into with the Executing Engineer, NH Division, Chapra on 13.03.2013 for construction of the aforesaid bridge wherein the time period stipulated for completion of the contract work was 16 months from the date of agreement. the bridge in question was constructed within the stipulated time period, however, subsequently, the Executive Engineer, directed the petitioner to undertake additional work whereupon the petitioner had performed variation work, but the same was not approved. It is stated that the entire work was completed in the year 2014 itself, however, the admitted outstanding dues are yet to be paid to the petitioner. The present writ petition has been filed for directing the respondents to forthwith pay the admitted dues along with earnest money and security deposit with respect to the contract work discharged by the petitioner as also to grant approval of the works already done by the petitioner apart from approving price variation.

The counsel for the respondent submits that, the present petition is barred by delay and latches inasmuch as the present petition has been filed after a huge delay of six years. It is further submitted that the then Executive Engineer, NH Division, Chapra had made variation in the work of BM and SDBC and prime coat without the approval of the concerned Chief Engineer, who is the competent authority for grant of approval. It is further submitted that the Assistant Engineer had examined the records and vide letter dated 07.08.2018, he has communicated to the Executive Engineer that as per the measurement book No. 338, payment has been made to the petitioner against his eight bills totaling to a sum of Rs. 3,68,53,379.00, for the work done by the petitioner. In fact, a sum of Rs. 41.07 lacs and Rs. 16.16 lacs have also been paid to the petitioner as secured advance against the 4th and 7th A/C Bills. The counsel for the petitioner submitted that the petitioner has refuted the aforesaid statements made in the counter affidavit by filing a rejoinder affidavit.

The learned judge heard the counsel for both the parties and observed the huge delay of about 6 years in filing the petition with no plausible explanation. The court relied on the judgement in Chennai Metropolitan Water Supply & Sewerage Board v. T. T. Murali Babu, reported in (2014) 4 SCC, 108, wherein it was held that, “Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the Lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but, in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the Lis.”

The Court further found that the present writ petition involved disputed question of facts inasmuch as on the one hand the petitioner is claiming that admitted outstanding dues are due to be paid to him whereas on the contrary, the respondent State is making a claim that certain amounts are in fact recoverable from the petitioner. It is a trite law that disputed question of facts cannot be adjudicated in a writ petition. In this connection with this, the judges relied on the judgment in the case of AIR 1977 Patna 65 M/s Radha Krishna Agrawal & Ors. vs. The State of Bihar & Ors, wherein it was held that, “If those facts are disputed and require assessment of evidence of the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Art. 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, “prerogative” powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Art. 226 of the Constitution could be invoked.”

Applying the rationale in the two above cases, the present petition was dismissed on the grounds of inordinate delay and the court ruled that, “the petitioner has approached this Court after a huge delay of about six years for which no plausible explanation what-so-ever has been furnished by the petitioner. It is a well settled law that the High Court in exercise of its discretion does not assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner, the Court may decline to intervene and grant relief inasmuch as entertaining such a belated claim would only have the effect of inflicting hardship and inconvenience. It is equally a well settled law that stale claim is not to be adjudicated and deserve to be thrown out at the very threshold. Considering the facts and circumstances of the case and for the reasons mentioned hereinabove in the preceding paragraphs as also taking into account the well settled principle of law laid down by the Hon’ble Apex Court in a catena of decisions, as referred to hereinabove, this Court finds that since the present case involves disputed question of fact and the respondents have denied their liability arising out of the contract, the present writ petition, filed under Article 226 of the Constitution of India, is not maintainable, hence, the same stands dismissed.”

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