Seema Chandrakant Chaudhari vs Union Of India And Others
2021 Latest Caselaw 11464 Bom

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                                                            997 Writ Petition 7568 of 2021.odt


            THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD.

                       WRIT PETITION NO. 7568 OF 2021


Seema Chandrakant Chaudhari,
Age : Major, Occu. Business,
R/o : Dindayal Nagar, Jamner Rd,
Bhusawal, Dist. Jalgaon.                              ... PETITIONER

               VERSUS

1]     Union of India,
       Through Secretary,
       Ministry of Railway,
       (Railway Board)
       New Delhi.

2]     The General Manager,
       Central Railway,
       Mumbai.

3]     Divisional Railway Manager (Commercial)
       Office of Sr. DCM,
       Bhusawal Division,
       Central Railway Bhusawal.

4]     The Chief Commercial Manager
       (Claims & Catering)
       Central Railways C.S.M.T.
       Mumbai-400001.

5]     Divisional Commercial Manager,
       Office of DRM (C) Central Railways,
       Bhusawal Division, Bhusawal.                   ... RESPONDENTS


                                    ...
Mr. Swapnil S. Patil, Advocate for petitioner.
Mr. M. N. Navandar, Advocate for Respondent Nos.1 to 5.
                                  ...




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                                                             997 Writ Petition 7568 of 2021.odt




                                   CORAM : S. V. GANGAPURWALA &
                                           R. N. LADDHA, JJ.

                                   DATE     :   21st August, 2021.



ORAL JUDGMENT: ( Per S. V. Gangapurwala, J. )


.                 Rule. Rule made returnable forthwith. With the consent

of the parties, taken up for final hearing.



2                 The petitioner pursuant to the tender notice, participated

in the tender process for the catering stall on Platform No.4 near the

Coach Indicator No.18 at Nashik Road Railway Station from General

(Women) category. The tender of the petitioner was accepted. The

petitioner was issued letter of acceptance by respondent No.3. The

petitioner was required to deposit Earnest Money Deposit of

Rs.48,200/-. Under the letter of acceptance dated 20 th March, 2020,

the petitioner was expected to deposit license fees and security

deposit and start operation of the catering stall at the given location.

The petitioner did not abide by the conditions of security deposit and

license fees. The respondents on or about 18th February, 2021

informed the petitioner that the contract stands terminated, her

earnest money deposit stands forfeited and the petitioner is further

997 Writ Petition 7568 of 2021.odt

debarred in all catering contracts/licenses of any Zonal

Railway/IRCTC for a period of five years.

3 Mr. Patil, learned counsel for petitioner submits that the

petitioner was issued with the letter of acceptance on 20th March,

2020 and on 23rd March, 2020 nationwide lockdown was declared

because of Covid-19 pandemic. Because of lockdown, the trains

were not operated. The petitioner was not in a position to perform her

part of contract. The same was beyond her control. In view of that,

the petitioner cannot be faulted with and debarred for a period of five

years from entering into contract with the railways. The learned

counsel submits that the petitioner is not agitating the issue of

forfeiture of the earnest money deposit, however, has restricted the

petition to the extent that the petitioner may not be debarred for five

years.

4 Mr. Navandar, learned counsel for respondents submits

that as per clause 3.5.6 of the tender document, if the highest bidder

withdraws or fails to take up or to start the contract, his earnest money

shall be forfeited and he shall also be debarred by Railway for further

participation in all catering contracts/licenses of any Zonal

Railway/IRCTC for a period of five years. The respondents have not

997 Writ Petition 7568 of 2021.odt

committed any error in resorting to clause 3.5.6. It was for the

petitioner to perform her part of promise. Failure to perform her part

of promise, attracts consequences under the tender.

5 We have considered the submissions canvassed by the

learned counsel for parties. The petitioner indeed was awarded the

work of catering as has been narrated above. It is a fact that the

petitioner could not deposit the license fees and security deposit nor

could further run a catering stall at the given location. The Court can

take a judicial notice of the fact that on or about 23 rd March, 2020,

nationwide lockdown was declared in the country because of Covid-

19 pandemic. The entire country was facing a torrid time. The means

of communication, transportation came to a standstill. The railways

also were not operated. The citizens in this period of complete

lockdown were not even permitted to travel on the streets. In such a

scenario, it cannot be expected of the petitioner and the respondents

to proceed ahead with the contract.

6 The circumstances were beyond the control of a normal

human being. Because of the supervening circumstances and the

circumstances beyond the control of a normal human being, the

contract could not be performed further. It is after the contract was

997 Writ Petition 7568 of 2021.odt

entered into the supervening circumstances came into existence. The

act, after the contract was made became impossible of performance

on 23rd March, 2020, at that point of time, the contract become void.

The petitioner, in view of the complete lockdown and the notifications

issued by the Government under the provisions of the Disaster

Management Act, became unlawful of performance. If the petitioner

would have commenced her catering stall at the given location, the

same would have been unlawful in view of the notifications issued by

the Government under the Disaster Management Act. As the railways

has stopped running, the doing of business also would have become

impossible.

7 As the contract had become impossible and unlawful of

performance after the contract was entered into, at that point of time,

the contract became void.

8 The petitioner cannot be faulted for the non-performance

of her part of the contract. No reciprocal rights and obligations

remained to be performed by the parties.

9 In light of the above, the order debarring the petitioner

from participating in all catering contracts/licenses of any Zonal

997 Writ Petition 7568 of 2021.odt

Railway/IRCTC for a period of five years, cannot be sustained and is

quashed and set aside.

10 We have restricted this order to the extent of debarring

the petitioner for five years as the petitioner did not agitate as against

the forfeiture of earnest money deposit.

11 Rule is accordingly made absolute. No costs.

      [ R. N. LADDHA, J. ]                 [ S. V. GANGAPURWALA, J. ]
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