Page 79 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ] METRRO WASTE HANDLING PVT. LTD. v. SOUTH DELHI MUNICIPAL CORPN. 445
the rate was agreed to be Rs. 1830/- per day per vehicle i.e. less the service tax.
This contention does not help the petitioner. The fresh work order dated 22-3-
2016 has been done by the consent of parties. Parties while negotiating a fresh
contract were free to agreed on any rate mutually convenient. Even in this case
the petitioner was free under Section 73 of the Contract Act to operate the contract
and by consent of parties modify the rates. No such thing was done here. The
respondent unilaterally sought to reduce the rate.
25. The next contention raised by the Learned Counsel for the respond-
ent is that the present writ petition for recovery of money does not lie. The peti-
tioner was obliged to file a suit for recovery.
26. I may look at the legal position in this regard. Reference may be had
to the judgment of the Supreme Court in the case of Godavari Sugar Mills Ltd. v.
State of Maharashtra and Ors., (2011) 2 SCC 439. The Supreme Court held as fol-
lows :-
“8. The observations in Suganmal [AIR 1965 SC 1740] related to a claim for
refund of tax and have to be understood with reference to the nature of the
claim made therein. The decision in Suganmal [AIR 1965 SC 1740] has been
explained and distinguished in several subsequent cases, including in U.P.
Pollution Control Board v. Kanoria Industrial Ltd. [(2001) 2 SCC 549] and ABL
International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [(2004) 3 SCC
553]. The legal position becomes clear when the decision in Suganmal [AIR
1965 SC 1740] is read with the other decisions of this Court on the issue, re-
ferred to below :
(i) Normally, a petition under Article 226 of the Constitution of
India will not be entertained to enforce a civil liability arising
out of a breach of a contract or a tort to pay an amount of
money due to the claimants. The aggrieved party will have to
agitate the question in a civil suit. But an order for payment of
money may be made in a writ proceeding, in enforcement of statuto-
ry functions of the State or its officers. (Vide Burmah Construction
Co. v. State of Orissa [AIR 1962 SC 1320 : 1962 Supp (1) SCR
242].)
(ii) If a right has been infringed - whether a fundamental right or
a statutory right - and the aggrieved party comes to the Court
for enforcement of the right, it will not be giving complete re-
lief if the Court merely declares the existence of such right or
the fact that existing right has been infringed. The High Court,
while enforcing fundamental or statutory rights, has the pow-
er to give consequential relief by ordering payment of money
realised by the Government without the authority of law. (Vi-
de State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006].)
(iii) A petition for issue of writ of mandamus will not normally be
entertained for the purpose of merely ordering a refund of
money, to the return of which the petitioner claims a right.
The aggrieved party seeking refund has to approach the civil
court for claiming the amount, though the High Courts have the
power to pass appropriate orders in the exercise of the power con-
ferred under Article 226 for payment of money. (Vide Suganmal v.
State of M.P. [AIR 1965 SC 1740])
(iv) There is a distinction between cases where a claimant ap-
proaches the High Court seeking the relief of obtaining only
refund and those where refund is sought as a consequential
relief after striking down the order of assessment, etc. While a
petition praying for mere issue of a writ of mandamus to the
GST LAW TIMES  23rd July 2020  79