Sujyoti India (P) Ltd Through ... vs The Western Coalfields Ltd Nagpur ...
2017 Latest Caselaw 1317 Bom

                                                                       WP.2443.13
                                       1



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

WRIT PETITION NO. 2443 /2013

Sujyoti India (P) Limited A Company registered under the Companies Act, 1956 having its registered Office at A/18, Matruchhaya, Opp: "D" colony,Vidyavihar (East) Mumbai-440077 and office at "Nexus Point" Vidhan Bhavan Square Civil Lines, Through its Director Mr. Atul s/o Dalichand Doshi Aged about 49 years occu: Business R/o Aumganga Apts. 120 Farmland Ramdaspeth, Nagpur. ..PETITIONER

v e r s u s

1) The Western Coalfields Limited A Government of India Undertaking and company incorporated under the Companies Act, 1956 having its registered office at Coal Estate, Civil Lines, Nagpur-440 001 Through General Manager

2) The Central Vigilance Commission Satarkata Bhavan, GPO Complex Block A, INA New Delhi 110 023 Through Director

3) SKF India Limited, A company incorporated under the Companies Act,1956 having its registered office at Mahatma Gandhi Memorial building Netaji Subhashchandra Bose Road Mumbai-400 002 Through Staff officer.

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4)        The Union of India 
          through  Secretary 
          Ministry of Coal, New Delhi.

5)        Coal India Limited, 
          Coal Bhavan, Newtown 
          Rajghat, Kolkata,
          Through its Chairman.                                                                ...RESPONDENTS

...........................................................................................................................

Mr.M.G.Bhangde, Sr.Adv. with Mr.R.M.Bhangde Adv. for petitioner Mr.S.P. Dharmadhikari,Sr.Adv. with Mr. M.Anilkumar, Adv.for Res.No.1 Mr.A.S. Jaiswal, Sr.Adv. with Mr. Shantanu Khedkar, Adv.for Res. No.3 Mr. C.S.Samudra, Adv. for Respondent no.4 ............................................................................................................................

                                                     CORAM:  B.P. DHARMADHIKARI    &
                                                                                   
                                                                MRS
                                                                   . SWAPNA  JOSHI, JJ
                                                                                      . 
                                                     DATEOF RESERVING:  08.03.2017
                                                     DATE OF PRONOUNCEMENT: 31.03.2017


JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)

1. By this petition, the petitioner seeks a direction that the letter

dated 26.04.2011 issued by Mr.C.M.Shukla, G.M. (M.M.) WCL HQ.

directing to declare that the withholding of payment of admitted dues of

the petitioner stands revoked and further to direct the respondent no.1

to withdraw the said letter dated 26.04.2011 and to make the payment

of Rs.1,46,66,383.33 to the petitioner with interest. The petitioner

further prays to quash and set aside the report, dated 10.04.2015, of the

Chief Vigilance Officer, Coal India Limited.

2. The petitioner is a Private Limited Company duly registered under

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the provisions of the Companies Act,1956. The petitioner is an

authorized Distributor of respondent no.3-Company. Pursuant to the

offer made by respondent no.3-SKF India Limited, Bombay and offer

made by Industrial Bearing Services, the respondent no.1 had entered

into a rate contract dated 11.12.1995 for supply of SKF imported

bearings for a period of two years on the terms and conditions stated in

the rate contract. It was agreed that the respondent no.1 shall place the

order against the said rate contract and the petitioner and shall execute

the same. It was further agreed that the respondent no.1 shall make

payment against the bills that would be raised for the aforesaid supplies

to the petitioner directly. Initially, rate contract was for a period of two

years with effect from 11.12.1995 till 31.12.1997. The duration of the

said rate contract was extended by respondent no.1 from time to time

and the last extension was up to 31.12.2011. As per the rate contract,

the petitioner has supplied imported bearings as per the orders placed by

respondent no.1 from time to time and, accordingly, respondent no.1

has made payment to the petitioner in respect of the supplies made by

the petitioner to the respondent no.1. According to the petitioner from

1995 till 2010 there was no dispute between the parties. However one

Mr C.M.Shukla, then G.M. (MM) WCL Headquarters, by letter dated

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26.04.2011 addressed to Chief General Manager/ GMs of various areas

under the respondent no.1, directed to withhold payment against the

said rate contract to the petitioner. By letter dated 27.04.2011, Mr.

Shukla, suspended the aforesaid rate contract with immediate effect.

There was a lot of correspondence between the parties. The petitioner

addressed various letters to the respondent no.1 for the alleged

payment.

3. The petitioner, again, addressed a letter dated 10.09.2011 to Shri

G.M. (MM) WCL, Nagpur, to withdraw the letter dated 26.04.2011

whereby payment of bills of goods/products supplied by petitioner was

withheld and also to accept the supplies against the orders placed on the

petitioner which were pending. Since the petitioner did not get any

response to the letter dated 10.09.2011, the petitioner dashed off a

letter dated 04.11.2011 to the higher authority i.e. Chairman and

Manging Director, WCL, Nagpur, making similar request. The petitioner

did not get a response to the said letter from respondent no.1. In this

situation, the petitioner was constrained to lodge the complaint with the

Chief Vigilance Officer, WCL,Nagpur vide letter dated 30.12.2011

against the action of Mr. Shukla, in directing withholding payment due

to the petitioner, by letter dated 26.04.2011. The Chief Vigilance Officer

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conducted detailed investigation and submitted vigilance report to the

Central Vigilance Commission, New Delhi. The Chief Vigilance Officer

WCL, Nagpur found that the issuance of letter dated 26.04.2011

withholding of payment pursuant thereto, was without authority of law.

The payment due to the petitioner was not released and continued to be

withheld. During the pendency of the petition, there was some

correspondence between the petitioner and respondent no.1. The

respondent no.1 withdrew the impugned communication dated

26.04.2011 and accepted to release the payment after withdrawal of

the instant petition vide communication/letter dated 12.12.2013, by

respondent no.1. In view thereof, the petitioner withdrew the instant

petition with liberty to revive the petition in case the WCL does not

make payment of withheld amount. Thereafter, the petitioner received

the amount of Rs.1,00,719.11 out of the total outstanding amount of

Rs.1,46,66,383.33, on 30.12.2013. The petitioner was told that

respondent no.1 had issued fresh instructions to withhold the payment.

Again, there was a plethora of correspondence between the petitioner

and the respondent no.1. Therefore, the petitioner was constrained to

move Misc. Application No.33/2015 for restoration/revival of Writ

Petition No.2443/2013. At the time of hearing of the said MCA,

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statement was made on behalf of respondent no.1 that letter dated

12.12.2013 has been withdrawn. After hearing both sides, this Court by

order dated 02.02.2015 allowed M.C.A. No.33/2015 and recalled its

order dated 13.12.2013. Thus, according to petitioner, the impugned

action on the part of respondent no.1 is unreasonable, irrational,

unjust,unfair, arbitrary and violative of Article 14 of the Constitution of

India.

4. Mr.M.G.Bhangde,learned senior counsel for petitioner vehemently

argued that despite of the fact that the internal correspondence in the

respondent's office surfaces that there were directions in the letters to

withhold the payment of petitioner, the dues cannot be denied as the

contract and law do not permit to do so. It is submitted that if there is

breach of contract they should have filed a suit against the petitioner. In

any case, dues payable to petitioner cannot be withheld. Our attention is

invited to the letter dated 12.12.2013 wherein it is mentioned that the

letter dated 26.4.2011 wherein it was advised to withhold the payment

is withdrawn. It is further submitted that based on the said letter Writ

Petition filed by respondent no.3 against respondent no.1 is withdrawn

on 23.08.2011. However, after withdrawal the respondent no.1 did not

keep its words and, therefore, the petitioner was constrained to

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complain to the Chief Vigilance Commission who issued directions to

the respondent no.1 in favour of petitioner.

5. Mr.Bhangde submitted that the price fall clause was not

acceptable to respondent no.3 and was acceptable to the petitioner

only. For that reason, the respondent no.3 was made a party to the rate

contract is that respondent no.1 can enter into a contract with

manufacturer only and to ensure responsibility of respondent no.3

quality and genuinity of the supply made by the petitioner. He invited

our attention to clause (7) of the Minutes of the Tender Committee

meeting dated 15.11.1995, which reads thus,

"7. Supply Point: All orders will be placed on M/s Industrial Bearing Services, Nagpur with a copy to M/s SKF Bearings India Ltd. Bombay and supply will be made by M/s Industrial Bearing Services, Nagpur. However, M/s SKF Bearings India Limited Bombay will be responsible for quality and genuinity of the supply made by their Recognised Importers/authorised Stockist and will be referred in case of any dispute."

6. Mr. Bhangde submitted that the respondent no.3 never agreed for

the price fall clause. It was only agreed by the petitioner. After the

execution of the rate contract dated 11.12.1995, the respondent no.1

placed orders for purchase on the petitioner and accordingly, the

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petitioner gave price certificate to respondent no.1 in accordance with

the price fall clause. It is submitted that this understanding between the

petitioner, the respondent no.3 and respondent no.1 continued for

about 16-years uninterruptedly, as it was in consonance with the

agreement between the parties. However, suddenly the respondent no.1

withheld payment of petitioner on the ground that respondent no.3 had

breached the price fall clause. Mr.Bhangde submitted that the enquiry

was conducted by the Chief Vigilance Officer of respondent no.1. He

however closed the enquiry in favour of petitioner and held that the

price fall clause was not applicable to respondent no.3. Thereafter the

Ministry of Coal, examined these facts and in agreement with Ministry

of Coal, the Chief Vigilance Officer closed the case. According to Mr.

Bhangde, the price fall clause was never applicable to respondent no.3

and the said aspect has been examined in detail by the Central Vigilance

Commission of respondent no.1, the Ministry of Coal as well as

respondent no.2-Central Vigilance Commission. He contended that it is

arbitrary on the part of the Chief vigilance Officer of Coal India Limited

to enter into the same aspect again without there being any justifiable

reason.

7. Mr. Bhangde, placed reliance upon the judgment in the case of

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General Manager, North East Frontier Railway and others vs.

Dinabandhu Chakraborty reported in (1971) 3 SCC 883, to urge that the

respondent no.1 cannot deduct the amount due under liability incurred

by the petitioner unless it is established that, under a liability incurred

by petitioner, the amount in question is due to the respondent. According

to respondent no.1, the petitioner had sold the products/goods to

others, at less price than the products to respondent no.1, by

committing breach of condition stipulated in clause 20 of the contract. In

the above-said case, it is held that the Government cannot be a judge of

its own cause in the absence of any statutory provision empowering it

to act as such. He further urged that respondent no.1 cannot be a judge

in its own cause and it cannot decide as to what is the exact difference in

the amount to which the products were sold in lesser price to others than

to respondent no.1 and what was the loss incurred to the respondent

no.1 due to the said action on the part of petitioner. According to him,

respondent no.1 ought to have approached to the Civil Court by filing a

Civil dispute. The above said case law has a good bearing on the present

case and it would be appropriate that the dispute gets resolved in a civil

Court of law. In that case it is held in paragraph no.2 as under :-

2....the Controlling Officer is empowered to deduct any

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amount due under a liability incurred by the subscriber to the Government. Therefore before any deduction can be made, it must be established that under a liability incurred by the subscriber the amount in question is due to the Government, in the instant case the respondent has disputed his liability. His contention is that he was not responsible for the loss in question. Under the Provident Fund Rules, no authority is constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability not as regards its quantum. Therefore, the only forum in which these disputes can be decided is the Civil Court. The Government cannot be a judge in its own cause in the absence of any statutory provisions empowering it to act as such. Hence the High Court was right in its conclusion that the action taken by the Government is an arbitrary one."

8. In that case, the Hon'ble Apex Court reached a finding that

before any deduction can be made it must be established that under a

liability incurred by the subscriber the amount in question is due to the

Government. Likewise in the instant case, the respondent no.1 cannot

make any deduction with regard to the difference in the amount

between the original sale price and the amount to which the products

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were sold at lower price to others by the petitioner. It is incumbent

upon respondent no.1 to establish that a particular amount is due to the

petitioner. For that purpose, in order to decide the said dispute, it is

necessary to approach the Civil Court to resolve the said dispute and

the respondent no.1 cannot be a judge in its own cause. The above said

case law has a good bearing on the present case and it would be

appropriate that the dispute gets resolved in the civil court of law.

9. Mr.Bhangde, relied upon the judgment in the case of State of

Karnataka vs. Rameshwara rice Mills reported in (1987) 2 SCC 160. It

is held that on a plain reading of the words in clause of the contract, it

is clear that the right of the second party to assess damages would arise

only if the breach of conditions is admitted or if no issue is made of it.

In the present case, clause 12 of the contract between respondent nos.1

and 3 does not indicate that the dispute be resolved by respondent no.

1. Hence it is necessary to refer the dispute to the Civil Court.

10. Mr.Bhangde took us through the contents in the case of J.G.

Engineers Pvt.ltd. vs. Union of India and another reported at (2011)

"19. In fact the question whether the other party committed breach cannot be decided by the party alleging breach. A contract cannot provide that one party will be the arbiter to

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decide whether he committed breach or the other party committed breach. That question can only be decided by only an adjudicatory forum, that is, a court or an Arbitral Tribunal.

20. In State of Karnataka vs. Shree Rameshwara Rice Mills (1987 (2) SCC 160) this Court held that adjudication upon the issue relating to a breach of condition of contract and adjudication of assessing damages arising out of the breach are two different and distinct concepts and the right to assess damages arising out of a breach would not include a right to adjudicate upon as to whether there was any breach at all. This Court held that one of the parties to an agreement cannot reserve to himself the power to adjudicate whether the other party has committed breach. This court held :

"Even assuming for argument's sake that the terms of Clause 12 afford scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the other officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the

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officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of Clause 12. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed."

11. The aforesaid case-law is applicable to the facts of the present

case. In the instant case clause 12 of the contract reads as under :

Clause: 12:Price Fall clause: The prices being offered for the stores under this contract by the contractor shall in no event exceed the lower price at which the contractor sells stores of identical description to any other organisation during the period of the contract.

If at any time, during the said period, the contractor reduces the sales price of such stores, or sells such stores to any other organisation at price lower than the price, chargeable under this contract, he shall forthwith notify such reduction or sale to the concerned consignee under intimate to the General Manager (Purchase) WCL, MMW, Coal Estate, Civil Lines, Nagpur-440 001 and the price payable under the contract for the stores supplied after the date of coming into force of such

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reduction or sale, shall stand correspondingly reduced."

12. In view of the aforesaid circumstances it would be proper that the

matter be decided by the Civil Court, in order to find out as to for how

much amount the stores/products were sold to other organizations and

to find out the difference in sale price of the stores/products so that the

sale price can be correspondingly reduced by the petitioner.

13. Mr. Bhangde, relied upon the judgment in the case of M/s H.M.

Kamaluddin Ansari and Co. vs. Union of India and others, reported

in (1983) 4 SCC 417. The aforesaid case has a good bearing on the

present case. The respondent no.1 can no doubt recover dues from

the petitioner after decision in the Civil Court. He further relied upon

the judgment in the case of Iron & Hardware (India) Co. vs. Firm

Shamlal & Bros, reported in AIR 1954 BOMBAY 423, more particularly

paragraph 7 which reads thus,

7. ........In my opinion, with respect to the learned Judge, greater emphasis should be placed on the expression "any pecuniary liability" rather than on the expression "whether ascertained or to be ascertained". Before it could be said of a claim that it is a debt, the Court must be satisfied that there is a pecuniary liability upon the person against whom the claim is made, and the question is

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whether in law a person who commits breach of contract become pecuniarily liable to the other party to the contract. In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party.

As already stated, the only right which he has is the right to go to a court of law and recover damages,. Now damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach, is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what the liability is. But till that determination there is no liability at all upon the defendant."

In the instant case, it would be appropriate to file a civil suit in

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order to assess the dues.

14. Mr.Bhangde, further relied upon the judgment in the case of Syed

Maqbool Ali vs. State of Uttar Pradesh and another, reported in

(2011) 15 SCC Page 383. Para no.11 thereof reads as under :-

"11. When a writ petitioner makes out a case for invoking the extra ordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the alternative remedy of a civil court, merely because the matter may involve an incidental examination of disputed questions of facts. The question that will ultimately weigh with the High Court is this : Whether the person is seeking remedy in a matter which is primarily a civil dispute to be decided by a civil court, or whether the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high-handed action. (See the decisions of this court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd - 2004(3) SCC 553 and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers - 2008(12) SCC 500]"

According to Mr. Bhangde, it would be appropriate that the

controversy gets resolved by filing Civil Suit in the instant case.

15. Per contra, learned senior counsel Mr.S.P.Dharmadhikari with Mr.

M.Anilkumar for respondent no.1 contended that the decision to release

the withhold payment was taken based on office memorandum dated

22.08.2013 of respondent no.2 by which the respondent no.1 was

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informed that the case has been examined by the Commission and

advised that the serving official of tender committee of respondent no.

1 may be suitably warned for failure to enforce a suitable fall rate clause

which could by the respondent no.3 to lower rates if these items were

supplied to any other organization at a rate lower than the rate of

respondent no.1. This memorandum meant that the respondent no.2

had completed its investigation and finally closed the case. Therefore,

respondent no.1 decided to release the withheld amount due to the

petitioner and the petitioner withdrew the Writ Petition No.2443/2013

accordingly. Shri Dharmadhikari submitted that respondent no.1 duly

advised all its officers of area offices to release the withheld amount. It

is submitted that when respondent no.1 communicated Vigilance

Department, the Vigilance Department brought it to the notice of

respondent nos.1 and 2, vide letter dated 28.10.2013 that the case may

not be treated to be closed. The said information was given by the

Vigilance Department of respondent no.1, was immediately brought to

the notice of the competent Authority of respondent no.1, who in turn,

directed that the release of withhold amount may be kept on hold till

the case is finalized by respondent no.2 and accordingly, the directives

were sent to office of respondent no.1 to keep the matter in abeyance

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till the case is finalised by respondent no.2. It is submitted that in the

instant petition, an attempt has been made to recover the alleged dues

which is the subject-matter of civil suit. It is submitted that the present

matter is not maintainable under Article 226 of the Constitution of India

since it involves interpretation of various contractual terms and

conditions which warrants leading of evidence.

16. Mr. Dharmadhikari urged that the operation of Clause 12 of the

contract is, in fact, on the price sale. The petitioner has sold the products

at a lower price than quoted to other organization and thus committed

breach of contract. According to Mr. Dharmadhikari respondent no.1

was constrained to reserve the decision of closing the file of petitioner

and was compelled to withhold the payment due to the petitioner.

Mr.Dharmadhikari submitted that it is a pure commercial contract

without public law involved in it. The contract of supply of products in

which there is a price fall clause wherein price fall is apparent, the

petitioner supplied to other organizations at lower rates than to

respondent no.1.

17. According to Mr. Dharmadhikari, the petitioner cannot file writ

petition claiming dues. He submitted that petitioner ought to have filed

a civil suit in court of law as there are several disputed questions of fact

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regarding the money claim.

18. In support of his contention, Mr Dharmadhikari, placed reliance

upon the judgment in the case of State of U.P. and others vs. Bridge &

Roof co. (India) Ltd. reported in (1996) 6 SCC Page 22, wherein it is

held by the hon'ble Apex Court, in para nos. 15 and 16 as under :-

"15. In our opinion, the very remedy adopted by the respondent is misconceived. It is not entitled to any relief in these proceedings, i.e. in the writ petition filed by it. The High Court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the Deputy Commissioner made under the proviso to Section 8-D(1).

16. Firstly, the contract between the parties is a contract in the realm of private law. It is not statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition..............."

19. There is certainly substance in the contentions of Mr.

Dharmadhikari that there are several disputed questions of facts.

20. Mr.Dharmadhikari contended that the contract is between WCL

and M/s SKF Bearings India Limited. Whatever arrangement is there it

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is between them. The respondent no.1 claims privity of contract with

SKF/respondent no.3 and terms and conditions are not placed on record

on which the petitioner was appointed by respondent no.3. Shri

Dharmadhikari took us through the clauses of the rate contract. Clause

20 as regards penalty reads as under :

20. Penalty: In the event of failure to delivery, despatch the stores within the stipulated date/period of effect suppliers in accordance with the samples and/or specifications mentioned in the supply order and in the event of the breach of any of the terms and conditions mentioned in the supply order the "Western Coalfields Limited shall be entitled at its option either :-

(a)...

(e) Whenever under this contract any sum of money is recoverable from and payable by the contractor the WCL shall be entitled to recoverable such sum by appropriating in part on any whole by deducting any sum due or which at any time thereafter may become due to the successful tenderer in this or any other contract should this sum be not sufficient to cover the full amount recoverable the successful tendered shall pay the full amount to the WCL....."

21. Mr. Dharmadhikari, learned senior counsel invited our attention

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of clause (f) which reads thus :

Whenever under the contract a sum of money is recoverable from and payable by you, Western Coalfields Limited, shall be entitled to recover such sum by appropriating, in part or whole by deducting any sum or which at any time thereafter, may be due to you in this or any other contract, with Western Coalfields Limited or any CIL's subsidiary company. Should this sum be not sufficient to cover the full amount recoverable, you shall pay to Western Coalfields Limited, on demand the remaining amount."

22. According to Mr.Dharmadhikari, the respondent no1. is entitled

to recover the amount from the petitioner. It is submitted that the

petitioner is the agent/dealer of respondent no.3-M/s SKF Bearings

and the acts of principal i.e. Respondent no.3 will bind the petitioner.

The respondent no.3 has filed Writ Petition No.1047/2011 on similar

grounds against the respondent no.1, which was disposed of on

23.08.2011 by the principal seat of this Court. According to Mr.

Dharmadhikari the petitioner cannot claim same relief once petition is

withdrawn. The petitioner has to claim against respondent no.1. Mr.

Dharmadhikari pointed out the letter dated 29.01.2011 addressed to

General Manager (MM) WCL by SKF (respondent No.3) stating that

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"quotes published by them and the offers made to IOC were only to

an "Invitation to Offer". It was further mentioned that when an offer is

made by any prospective buyer in pursuance of an invitation to offer it

is not obligatory on the part of seller making the invitation to offer to

accept such offer from the buyer. Thus only in the event of the offer

made by IOC being accepted by SKF and goods (identical to those sold to

WCL) being supplied and sold in furtherance thereof, the WCL Rate

contract can be said to be breached and not before it."

23. Mr. Dharmadhikari stated that according to petitioner the

products were not supplied and sale was not effected and it was simply

an offer to the petitioner from the prospective buyers hence there was no

breach of rate contract. He however stated that once the price of product

is reduced by petitioner, even if it is not sold is immaterial and sufficient

to attract the price fall clause of the contract and in case if the product

is sold it is against the contract. In that event, civil suit would be the

only remedy for the petitioner to plead its case and claim it dues and

not to file the Writ Petition. Mr. Dharmadhikari stated that the

respondent no.1 had privity of contract with respondent no.3 only

and the respondent no.3 had unsuccessfully made a challenge before

the principal seat of this Court by filing Writ Petition No.1047/2012

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and then withdrew it. It is stated that neither the petitioner who is an

agent of respondent no.3 can seek contract against respondent no.1 by

this petition. Mr Dharmadhikari urged that there are several disputed

question of fact involved which can be resolved by way of civil suit.

24. Shri Dharmadhikari, learned senior counsel, relied upon the

judgment in the case of Joshi Technologies International Inc. vs. Union

of India and others reported in (2015) 7 SCC 728 wherein guidelines

are given by the Hon'ble Apex Court as to in which cases normally this

court should not exercise writ jurisdiction. Para No.69 reads thus:

69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. AT the same time, discretion lies with the High Court which under certain circumstances,it can refuse to exercise. Zit also follows that under the following circumstances, "normally", the court would not exercise such a discretion. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances."

25. Learned senior counsel Shri Anand Jaiswal with Shri S. Khedkar

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for respondent no. 3 supported the case of the petitioner. He submitted

that no price certificate was given by respondent no.3 and it was given

by the petitioner only. As stated in the letter dated 11.12.1995 the

contract is acted upon by the parties. It was pointed out that all work

orders were given under these contract only.

26. Significantly, the Writ Petition filed by Respondent no.3 at Bombay

for same relief, was disposed of for filing Civil Suit. It is worthy to note

that the petitioner is respondent no.3 here and is supporting the claim

of petitioner. Thus, there is change in stance of that petitioner. The

claims of petitioner and respondent no.3 arise out of the same contract

and same supplies. Pertinently, the claim can be either by respondent no.

3 or by petitioner and not by both. Privity of contract between parties,

status of petitioner before us qua the respondent no.3 and reach of

price fall clause are the main issues before us. Answer thereto is also

contingent upon actual understanding between the parties which can be

evidenced in actual files, correspondence and previous history. Definitely,

all this requires an opportunity to lead evidence and cross-examine.

27. Considering the rival contentions of all the parties, it is manifest

that there are several disputed question of facts involved in the present

case and Civil Suit in the court of law is the only remedy and the dispute

WP.2443.13

cannot be resolved in writ jurisdiction. In fact respondent no.3 had filed

Writ Petition bearing No. 1047/2011 on the same lines which was

withdrawn by him. Hence this Writ Petition is not tenable. We are of the

opinion that the guidelines issued by the Hon'ble Apex Court in the

case-laws cited and relied upon by respondent no.1,are clearly applicable

to the facts and circumstances of the present case.

28. In view of the aforesaid facts and circumstances, the Writ Petition

stands disposed of. Rule discharged.

               JUDGE                                 JUDGE

sahare