M/S Monopoly Carriers & Cargo Pvt. ... vs Union Of India & Ors.
2011 Latest Caselaw 3969 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment delivered on: 16.08.2011

         + W.P.(C) No.4308/2011 and C.M.No.8830/2011


M/s.Monopoly Carriers & Cargo Pvt. Ltd.         ......Petitioner

                   Through: Mr. Anil Goel, Advocate.

                          Vs.

Union of India & Ors.                          ......Respondents

                   Through: Mr. Joydeep Majumdar, Advocate.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
    be allowed to see the judgment?           No
2. To be referred to Reporter or not?         No
3. Whether the judgment should be reported
    in the Digest?                            No


KAILASH GAMBHIR, J.Oral :
*

1 By this petition filed under Articles 226 and 227 of

the Constitution of India, the petitioner seeks directions to

direct the respondent to unconditionally extend the lease of

the petitioner in respect of parcel space in Train No. 2410 Ex.

HNZM to BSP w.e.f. 30.8.2010 till 29.8.2012 in terms of

Clause (E) of the Comprehensive Parcel Leasing Policy

(CPLP) and clause 18 of the Contract between the parties.

2. Brief facts relevant for deciding the present

petition are that a written lease agreement was entered into

between the petitioner and the respondent No.2 for leasing of

Parcel Space in AGC of Train No.2410 having carrying

capacity of 1 tonne for the transportation of parcels from

HNZM to BSP for a period of three years i.e. 30.08.2007 to

29.08.2010 with a clause for extension of lease for further

two years. That the petitioner requested the respondent to

extend the said lease for a further period of two years vide

letters dated 11.02.2010 and 14.04.2010 and was surprised

when the respondents vide their letter dated 13.09.2010

declined the said request and vide letter dated 22.09.2010

provisionally extended the lease for a period of three months

or till finalization of fresh tender, whichever is earlier. As per

the petitioner, the petitioner is entitled to an unconditional

extension for a period of two years in terms of the

comprehensive parcel leasing policy as well as the contract

and hence feeling aggrieved with the same, the petitioner

has preferred the present petition.

3. Mr.Anil Goel, learned counsel for the petitioner

submits that the case of the petitioner is squarely covered by

the judgment of this court in Kishan Freight Forwarders Vs.

UOI (MANU/DE/2189/2011) decided on 2.6.2011.

4. Mr.Mazumdar, counsel appearing for the

respondents submits that the violation on the part of the

petitioner was not only on account of the overloading of the

parcels but even the train had to be detained because of the

overloading. Counsel thus submits that the violation in the

present case is rather of more serious nature, as the present

case is not merely of overloading but of detention as well.

Counsel for the respondent further submits that the

petitioner was not granted extension of the contract in the

said Train as per Clause E of the Comprehensive Parcel

Leasing Policy and clause 18 of the contract as the

petitioner had defaulted/committed breach of the terms of

the lease by detaining the train for an excess of 20 minutes at

Bhopal station and the petitioner had been found in breach of

the said terms and conditions of the lease on one occasion.

Counsel thus submits that the case of the petitioner is not

covered by the judgment of this court in Kishan Freight

Forwarders case (Supra).

5. I have heard learned counsel for the parties.

6. The only objection taken by the respondent is

that extension of contract was not granted in favour of the

petitioner as the petitioner had violated the clause of the

Comprehensive Parcel Leasing Policy and penalty was

imposed upon the petitioner once for detaining the train for

an excess of 20 minutes at Bhopal station. For better

appreciation of clause 18 of the contract, the same is

reproduced as under:

"Extension of lease contract:

Extension of lease is permissible only in case of long term lease of 3 years wherein the same can be extended only once, by 2 more years at a lease rate of 25% more than the lumpsum

leased freight rate subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract."

7. Undoubtedly, the said clause clearly stipulates

that extension of the lease would be permissible only subject

to the satisfactory performance of the lease holder and the

second condition being, without there being any penalty

imposed on the contractor for overloading or for violation of

any provision of the contract. The petitioner has admitted at

bar that there was only one instance of violation on its part

when there was detention due to over loading. Counsel for

the respondent has also not disputed that there was a single

instance of detention due to over loading on the part of the

petitioner during the entire period of the lease.

8. This court in Kishan Freight Forwarders (Supra) has

comprehensively dealt with all the issues and the controversy

involved in the present case is squarely covered by the

judgment in the said case. In fact the respondent had granted

provisional extension to the petitioner for a period of three

months but with the condition that the same would come to

an end even before the expiry of the said three months period

if in the meanwhile, fresh tenders are finalized. It would be,

therefore, quite evident that the petitioner was granted an

extension despite the fact that the penalty was imposed upon

the petitioner once due to detention due to over loading of

the consignment. It is, therefore, quite apparent that the

imposition of penalty by the respondent due to detention is

not being viewed seriously by the respondent to deny

extension of the lease period as envisaged under Clause 18 of

the said contract.

9. In the light of the aforesaid discussion, the

respondent is directed to unconditionally extend the lease of

the petitioner for a period of two years w.e.f. 30.08.2010 till

29.08.2012 in terms of clause (E) of the Comprehensive

Parcel Leasing Policy and Clause 18 of the Contract for

parcel space in AGC of Train No.2410 having carrying

capacity of 1 tonne for the transportation of parcels from

HNZM to BSP.

10. With the above directions, the present petition

stands disposed of.

KAILASH GAMBHIR, J AUGUST 16, 2011 dc