Patna HC shuts writ route for Bihar road contractor who waited eight years to claim unpaid 2014 tender dues
A division bench of Justice Mohit Kumar Shah and Justice Sourendra Pandey dismissed the Letters Patent Appeal of a Rohtas contractor, holding that a money claim filed about eight years after part payment in 2015 fails the three-year limitation yardstick the Supreme Court laid down in Bhailal Bhai, and that Article 226 cannot be used to defeat the law of limitation.
A contractor who built a concrete road, a drain and a ghat in Vikramganj in 2014-15, took part payment in 2015 and waited until 2023 to sue has lost in the Patna High Court. A division bench of Justice Mohit Kumar Shah and Justice Sourendra Pandey held that his writ petition was barred by delay and laches.
The bench dismissed Letters Patent Appeal No. 627 of 2023 filed by Binod Kumar Mishra of Durgadih village, Rohtas district. It affirmed the dismissal of his writ petition, though on a different ground from the one the single judge had used.
Three agreements, part payment, then an FIR
The dispute goes back to E-Tender No. 02/2014-15 published by the District Urban Development Agency, or DUDA, Rohtas. Mishra was declared L-1 and received three work orders dated 14 November 2014 for Ward No. 16 of Nagar Panchayat Vikramganj. The works were a PCC road, a PCC road with drain, and a ghat at Kesath Rajwaha No. 1.
He signed Agreements No. 37, 39 and 42 of 2014-15, all dated 27 December 2014, with the Executive Engineer, DUDA, Rohtas at Sasaram. According to him, he finished the work on time, the competent authority measured and verified it, and bills were generated.
His claims under the three agreements were Rs 7,53,525, Rs 76,863 and Rs 17,38,103. The judgment records that the work-done values in the writ petition itself were lower: Rs 6,71,700, Rs 71,852 and Rs 12,46,723. Part payments of Rs 3,80,000, Rs 38,000 and Rs 8,55,000 were sanctioned and paid after statutory deductions in 2015.
Mishra wrote to the Executive Engineer-cum-Project Director, DUDA, on 29 August 2017, 12 September 2017, 10 November 2022 and 23 December 2022 asking for the balance. Nothing came of it.
Meanwhile, an FIR, Sasaram Nagar P.S. Case No. 1326 of 2015, had been lodged against all the contractors, including Mishra, under Sections 419, 420, 409, 467 and 468 of the Indian Penal Code.
The police investigation report in that case, the appellant said, found no complicity of the contractors in the publication of fake tenders. He filed CWJC No. 2718 of 2023 for his dues. On 29 March 2023 the single judge dismissed it as not maintainable, holding that the Commercial Courts Act, 2015 gave him an alternative and efficacious remedy.
Contractor: State cannot blow hot and cold
Mr Deo Prakash Singh, for the appellant, argued that the work was complete, a completion certificate had been issued and part payment made. Only the balance remained unpaid.
He relied on ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553. That judgment holds that a writ petition against the State arising out of a contract is maintainable, that disputed facts are not an automatic bar, and that a consequential money claim can be granted.
He also cited Surya Constructions v. State of Uttar Pradesh, (2019) 16 SCC 794, to say that where the amount is undisputed the High Court should intervene under Article 226.
A coordinate bench ruling in Fulena Construction Pvt. Ltd. v. State of Bihar, 2022 (3) PLJR 717, was pressed for the doctrine of approbate and reprobate. There the court had held that the State, having used a contractor’s services, could not deny its liability to pay on a ground not germane to the claim.
BUIDCO: collusive tenders, payment ban, seven-year delay
Mr Lalit Kishore, Senior Advocate, appearing with Mr Rabindra Kumar Priyadarshi for the Bihar Urban Infrastructure Development Corporation, led with delay. The admissible payment had been made in 2015, yet the writ petition came only in 2023, after more than seven years. On that ground alone, he said, it deserved dismissal.
He then described what had happened to the tenders. Complaints had come in that the notices inviting tenders were published and decided collusively and stage-managed from inception to cause loss to the Government.
An enquiry followed and an FIR was lodged against officials and contractors. A complete ban was imposed on any further payment to any contractor under NIT No. 2/2014-15 and 3/2014-15. Departmental proceedings had also been started against various engineers of the State Government.
He relied on a single-judge order of 13 September 2019 in M/s Ankuj Construction v. State of Bihar, CWJC No. 10710 of 2016. There a contractor in a similar DUDA Rohtas matter was left to seek his remedy before the tribunal under the Bihar Public Works Contract Arbitration Tribunal Act, 2008.
In Ankuj Construction, the court had noted a letter of 5 October 2015 from the Principal Secretary, Urban Development, reporting that tenders issued were fake and the then Executive Engineer was involved. A three-member committee had reported that documents for 62 schemes were not made available to it.
For the proposition on delay he cited the Constitution Bench in State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006. Mr Yogendra Prasad Sinha, AAG-7, with Mr Rajeev Kumar Sinha, appeared for the State.
Bench decides on delay, not alternative remedy
Writing for the bench, Justice Shah found that the facts lay in a narrow compass. Work orders were issued in November 2014, agreements signed in December 2014, the work completed and part payment made in 2015 itself. The writ petition praying for the admitted outstanding amount with interest came after a huge delay of about eight years.
No satisfactory, bona fide, convincing or even plausible reason for that delay had been offered. The bench then set out the question it had to answer:
“whether delay and laches on the part of the appellant in approaching the Writ Court can be a valid ground for refusing writ relief” (para 12)
Before answering it, the court quoted Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728. Where a contract with the State lies purely in private law, the aggrieved party should ordinarily invoke civil remedies rather than Article 226.
The public-private distinction is blurred but not obliterated, Joshi Technologies says. Each case turns on whether the controversy carries a public law element; in a pure contract case the High Court should not exercise discretionary jurisdiction.
On delay itself, the bench said the law is settled. A writ petitioner must come at the earliest reasonable opportunity, and inordinate delay is a good ground to refuse discretionary relief.
The object is to discourage stale claims and matters already settled, or where third-party rights have accrued. There is no fixed upper or lower limit; it is a question of discretion on the facts of each case.
The court cited Tridip Kumar Dingal v. State of West Bengal, (2009) 1 SCC 768, and a string of Supreme Court decisions from State of Tamil Nadu v. Seshachalam to Union of India v. C. Girija.
A writ court, it said, is not required to indulge an indolent person who comes at his own leisure or pleasure. On delay and laches alone it should throw the petition overboard at the threshold.
Mrinmoy Maity and the three-year yardstick
The bench quoted at length from Mrinmoy Maity v. Chanda Koley, (2024) 15 SCC 215. That judgment holds that a petitioner who sleeps over his rights and wakes from deep slumber should not be granted extraordinary relief, that delay defeats equity, and that submitting memorials does not revive a dead cause of action.
The bench also drew on Karnataka Power Corporation Ltd. v. K. Thangappan and Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, both quoted in Mrinmoy Maity. Delay reflects inactivity and inaction, and law does not permit a litigant to sleep and rise like a phoenix.
Applying this, the court reiterated that the appellant had given no convincing reason for an eight-year delay, although a suit for recovery of money must be filed within three years of the cause of action.
Citing Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, it said the power under Article 226 is conceived to serve the ends of law and not to transgress them. The High Court cannot ignore or override the law even while exercising constitutional power.
The bench put the point in its own words: the power under Article 226 is to be used “to effectuate the rule of law and not to abrogate or defeat it” (para 14). The writ court, it concluded, had rightly refused mandamus and left the appellant to the ordinary mode of action available under the law.
Can a time-barred debt be recovered by writ?
The court then took up a second aspect: whether a time-barred debt can be recovered by invoking Article 226. It returned to Bhailal Bhai, where the Constitution Bench held that the maximum period fixed by the legislature for bringing a suit may ordinarily be taken as a reasonable standard for measuring delay in seeking a writ.
Delay can be unreasonable even within that period, the bench noted. But where it exceeds the limitation period, it will always be proper for the court to hold it unreasonable. The limitation for recovering money due on a contract is three years from the date payment becomes due.
That placed the onus on Mishra to explain why he had not approached the writ court before his dues became time-barred. He filed about eight years late and did not explain the delay. The petition was therefore not maintainable on this ground alone, the delay being both unreasonable and longer than the limitation for a civil action.
Order
The bench held that CWJC No. 2718 of 2023 was itself not liable to be entertained under Article 226, being marred by delay and laches. It found the appeal without merit and dismissed it. The single judge’s dismissal of 29 March 2023 therefore stands.
The matter was reserved on 3 August 2026 and the judgment, authored by Justice Mohit Kumar Shah, was uploaded on 30 October 2026. It is marked AFR. No order on costs appears in the judgment.