M/S. Deepak & Co. vs Indian Railways Catering & ...
2008 Latest Caselaw 1772 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+W.P.(C)No. 4638/2008 and CM Nos.8951/2008 & 10136/2008


 Date of Decision: September 29, 2008


M/s. Deepak & Co.                               .....Petitioner
Through :     Mr. Naresh K. Thanai,
            Advocate.


Versus


Indian Railways Catering & Tourism Corporation
Ltd.                                                          ...Respondents
Through :     Mr. Gaurab Banerji,
Sr.Advocate with
Mr. Saurav Agrawal and Mr. Arjun Krishnan, Advocates.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see
  the judgment?                                       YES

2. To be referred to the Reporter or not?              YES

3. Whether the judgment should be reported in the Digest? YES


                    JUDGMENT

29-09-2008

: MUKUL MUDGAL,J. (ORAL)

1. Rule DB.

2. With the consent of the learned counsel for the parties, the matter is taken up for

hearing.

3. This writ petition challenges the interpretation of clause 34. The relevant clause

in question reads as follows: -

"Existing lincensee must have paid all past dues relating to license fee failing which his tender will be rendered technically unsuitable."

4. The main plea of Mr. Thanai, the learned counsel appearing on behalf of the

petitioner is that the reference to past dues resolution can only be in respect of the stalls

for which tender has been submitted. In support of the above plea, Mr. Thanai has relied

upon the clause 5.3 of the General Conditions for the License, in case of the tender

which reads as follows: -

"5.3         Award of          In case the existing
             Licence to        Licensee is the successful
             the               bidder, the award of
               Existing          licence shall be subject to
              Licensee          the clearance of
                                outstanding and payable
                                against
                                IRCTC/Railways"

5. He submitted that the respondents are fully protected and in the event he is a

successful bidder, then clause 5.3 will ensure that all the arrears in respect of the other

stalls held by him can also be recovered prior to the award of the licence. He has also

relied upon the pleadings in Civil Writ Petition No. 8838/2005 wherein it was averred as

follows by the respondent/IRCTC: -

"It is on the basis of this temporary licence granted to the petitioners for a period of three months that they are claiming to be existing licencee in terms of clause 14.4 (iii) of the Catering Policy 2005. It is submitted that an existing licencee in terms of clause 14.4(iii) is a licencee who has been awarded a permanent contract for a full tenure."

6. The reliance is placed on the aforesaid pleadings to contend that a similar

interpretation should also be adopted in the present case. The above pleadings,

according to the respondents, arise in context of 2005 Catering Policy and was in respect

of clause 14.4 which reads as follows: -

"14.4 Eligibility Criteria ......(iii) The applicant should have a minimum annual turnover in catering/hospitality and F&B services related business and turnover criterion for different types of units are as under:

Rs.5 crore per annum Mobile catering on Rajdhani/Shatabdi Express trains Rs.3 crore per annum Mobile catering on other mail/express trains Rs.1 crore per annum Restaurants/refreshment rooms at Category "A" stations Rs. 1 crore per annum Single outlet fast food centres at Mumbai Central, Mumbai CST, Churchgate, Dadar, Delhi, New Delhi, Hazrat Nizuamuddin, Chennai Central, Howrah, Sealdah and Bangalore City.

Rs.50 lacs per annum Single outlet fast food centres at other Category 'A' and Category 'C' stations Rs.25 lacs per annum Single outlet fast food centres at Category 'B' stations.

Rs.10 lacs per annum Single outlet fast food centres at other stations.

Rs.5 crore per annum Multi outlet food plazas or food courts at Mumbai Central, Mumbai CST, Churchgate, Dadar, Delhi, New Delhi, Hazrat Nizammuddin, Chennai Central, Howrah, Sealdah and Bangalore City.

Rs.3 crore per annum Multi outlet food plazas or food courts at other Category 'A' and Category 'C' stations Rs. 1 crore per annum Multi outlet food plazas or food courts at Category 'B' stations.

Rs.50 lacs per annum Multi outlet plazas or food courts at other stations.

However, existing licensees will be eligible to participate in a tender against the respective units held by them even if they do not fulfill the prescribed turnover criteria for the said catering units. But the concerned licensee should have rendered satisfactory catering services in Railways for atleast 5 years."

The aforesaid clause nowhere requires the clearance of all existing dues.

Accordingly, the reliance on the aforesaid pleadings in another writ petition in respect of

earlier catering policy of 2005 is not justified.

Counsel for the respondent also relied upon clause 11 of the present tender

conditions which read as under:-

"11. Existing/Present holdings of the bidder over Indian Railways. ENCLOSE AN AFFIDAVIT DULY NOTARIZED AS PER ATTACHED FORMAT (Annexure'A-1'), if any." The said Annexure-'A-1' read as follows:-

" Affidavit (to be submitted on non-judicial stamp paper of Rs.10/-)

1. I ............ s/o ............... r/o .................... furnishing this affidavit in my capacity as an individual/partner of firm ..................../Director of Body Corporate ........................ and solemnly affirm and state as under: -

2. That I/we hold as on date following catering licenses on Indian Railways:

Unit Details Mobile units including Rajdhani/Shatabdi, and other Mail/Express trains Multi cuisine Food plazas/Food courts

Refreshment Room/Restaurant at class 'A' station Single Outlet fast food centres Stalls/Trolleys at Class "A", & "B" stations - Name of the unit (s)

3. "I have paid the license fee up to .............., there is no outstanding dues pending against me. I understand that if I owe dues against IRCTC in respect of above mentioned stalls/trolley/unit run by me, my tender can be rendered technically unsuitable."

VERIFICATION :

Verified at ..... on this ........ day of ........ 2008, that the contents of the above affidavit are true and correct to my knowledge, no part is false and nothing material has been concealed therefrom. I further declare that I am duly authorized to make this affidavit.

Date:

Place:

DEPONENT On behalf of ____________"

7. The aforesaid Annexure 'A-1' clearly indicates that all existing stalls have to

be indicated in the said affidavit and an undertaking given to clear all the arrears

due in respect of the said stalls. Accordingly, even if it is assumed that there was

any ambiguity in clause 2 in respect of the Minimum Eligibility Criteria, we are

satisfied that the affidavit Annexure 'A-1' as per Clause 11 abundantly makes it

clear that the arrears have to be cleared in respect of all the existing stalls.

8. Accordingly, we find no merit in the writ petition and the same is dismissed.

(MUKUL MUDGAL) JUDGE (MANMOHAN) JUDGE September 29, 2008 sk