Bombay High Court
M/S. Calcutta Industrial ... vs Coal India Ltd., Thru. ... on 21 March, 2017
Bench: V.A. Naik
2303WP4203.07-Judgment 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4203 OF 2007
PETITIONERS :- 1] M/s. Calcutta Industrial Suppliers
Corporation A partnership firm registered
under the Provisions of Partnership Act
having its office At 1, Kosara Road,
Yashwantnagar Padoli, Chandrapur through
its authorised Signatory Shri Ashokkumar
Agrawal.
2] M/s. Banwari Lal Agrawal Private Ltd., A
Private Limited Company, having its office at
BLA House, S-21, Bharatnagar, Nagpur;
Through its authorised Signatory Shri
Ashokkumar Agrawal.
3] M/s. Punya Coal Road Lines, A
Proprietorship firm having its office at 15-B,
Pushpakunj Commercial Complex, Central
Bazar Road, New Ramdaspeth, Nagpur,
through its Proprietor Shri Yugpradhan
Pannalal Mehta.
4] M/s. B. Himmatlal Agrawal, A Partnership
firm having its office at 364, Hanuman
Nagar, Nagpur, through its Partner Shri
Kishore Agrawal.
5] M/s. Sainik Mining and Allies Services Ltd.,
A company registered under the provisions
of the Companies Act, having its office at D-
7, Anmol Apartment Kadbi Chowk, Nagpur,
through its authorised Signatory Shir Deepak
Wahal.
...VERSUS...
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2303WP4203.07-Judgment 2/6
RESPONDENTS :- 1] Coal India Limited, through its Chairman
Cum Managing Director, 6, Netaji
Subhashchandra Bose Road, Calcutta.
2] M/s. Western Coalfields Limited, Through
its Chairman Cum Managing Director.
3] The General Manager, (Contract
Management Cell) Western Coalfields
Limited.
4] The Director (Technical) Western Coalfields
Limited.
5] The Director, Finance, Western Coalfields
Limited,
(Resp.Nos. To 5 having their office at Coal
Estate, Civil Lines, Near Seminary Hills,
Nagpur)
6] The Chief General Manager, Nagpur Area,
Western Coalfields Limited, Jaripatka,
Nagpur.
7] The Chief General Manager, Majri Area,
Western Coalfields Limited, At Post Kuchha,
Distt. Chandrapur.
8] The Chief General Manager, Wani Area,
Western Coalfields Limited, At Post Tadali,
Distt. Chandrapur.
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Mr.A.A.Mardikar, counsel for the petitioners.
Mr. M. Anilkumar, counsel for the respondents.
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CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 23.03.2017
2303WP4203.07-Judgment 3/6
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioners challenge the action
on the part of the respondents of deducting the amount paid by the
respondents to the Railways towards demurrages for overloading and
underloading coal in railway wagons from the bills payable to the
petitioners.
2. The petitioners are the contractors that are awarded work
in pursuance of tenders floated by the respondents for loading coal in
railway wagons with the help of pay-loaders. As per clause 6.2(c) of
the tender, if the wagons are overloaded or underloaded beyond the
limit prescribed by the Railways, the contractor would be liable for the
same and necessary deduction was liable to be made from the
contractor's bill, towards overloading/underloading charges incurred by
the department. By invoking clause 6.2(c), as per the claim of the
Railways towards demurrages, the respondents sought to recover the
amount that was liable to be paid by them to the Railways from the
petitioners/contractors. Since the amount to which the petitioners were
allegedly liable was deducted from the bills of the petitioners/
contractors, the petitioners have approached this court with the
aforesaid challenge.
2303WP4203.07-Judgment 4/6
3. Shri Mardikar, the learned counsel for the petitioners,
submitted that clause 6.2(c) of the tender notice is unworkable. It is
stated that appropriate weighing mechanism ought to have been
provided by the respondents before invoking clause 6.2(c). It is stated
that 58 wagons are required to be loaded by the petitioners in about 9
to 10 hours and after the carriage is filled, the load in the carriage is
calculated electronically while it is in motion. It is stated that it is
apparent from the communications of the officers of the respondents
that there could be a marginal change in the weight of the wagon if the
speed of the wagon increases or decreases while travelling. It is
submitted that it is also the view of the officers of the respondents that
some better mechanism needs to be evolved for the implementation of
clause 6.2(c). It is submitted that clause 6.2(c) was not incorporated in
any of the contracts pertaining to loading of railway wagons till the year
1998 and though the clause was incorporated in the year 1998 for the
first time, it is sought to be invoked only in the year 2002. It is stated
that clause 6.2(c) was deleted from the tender in the year 2006-07 and
in the circumstances of the case, the respondents may be directed to
refund the amount that is wrongfully withdrawn from the bills of the
petitioners.
4. Shri Anilkumar, the learned counsel for the respondents,
has opposed the prayer made in the petition. It is stated that the
2303WP4203.07-Judgment 5/6
petitioners had participated in the tender process with open eyes and
they would not be entitled to claim that clause 6.2(c) was unworkable.
The learned counsel has denied the submissions made on behalf of the
petitioners and has stated that the Railways had maintained the chart
pertaining to the quantity loaded in the wagons and the respondents
had only sought the amount that was sought by the Railways from the
respondents towards overloading and underloading charges, from the
petitioners.
5. In the circumstances of the case, we are not inclined to
consider the submissions made on behalf of the petitioners in exercise
of the writ jurisdiction. The very submissions show that the relief could
have been sought in a civil suit. Admittedly, the petitioners entered into
the contract with the respondents despite the knowledge of the
incorporation of clause 6.2(c) in the same. It is not the case of the
petitioners that there was no overloading or underloading in the
wagons. All that the petitioners have submitted is that there was
absence of proper mechanism to find out whether there was
overloading or underloading in the railway wagons. The respondents
have denied the case of the petitioners. Each of the submissions made
on behalf of the petitioners give rise to disputed questions of facts, as
the respondents have seriously disputed the factual submissions made
on behalf of the petitioners. If it is the case of the petitioners that
2303WP4203.07-Judgment 6/6
proper weighing mechanism was not provided, the load in the carriage
or wagon was calculated electronically, some better mechanism was
liable to be evolved, and that there was a change in the weight of the
carriage/wagon with the speed of the wagon. The petitioners ought to
have filed a civil suit to prove the aforesaid factual aspects. If it is the
case of the petitioners that it was not practically possible to find out the
exact load in the carriage/wagon, the petitioners ought to have filed a
civil suit seeking appropriate relief. The issues involved in this case, in
our view cannot be decided in exercise of the writ jurisdiction. We do
not find from the submissions made on behalf of the petitioners that the
clause would be unworkable. It is a settled position of law that where
the contracts are freely entered with the state, there is no scope for
invoking the doctrine of 'reasonableness' for the purpose of adding or
altering the terms and conditions of the contract. It would be
worthwhile to refer to the decision in the case of ONGC v. Streamline
Shipping Company, reported in 2002 (3) Mh.L.J. 530 in this regard.
6. In any case, since the disputed questions of facts cannot be
decided in exercise of the writ jurisdiction, the writ petition is liable to
be dismissed. Hence, we dismiss the same with no order as to costs.
Rule stands discharged.
JUDGE JUDGE
KHUNTE
