Manglam Express Cargo Pvt. Ltd. vs Union Of India & Ors.
2011 Latest Caselaw 3980 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment delivered on: 16.08.2011

         +W.P.(C) No.4310/2011 and C.M.No.8834/2011


Manglam Express 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 of 4 tonnes (FSLR) in Train No. 2808-II Ex. HNZM to VKSP w.e.f. 11.9.2010 till

12.9.2010 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 Brake Vans of Train No.2808-II having

carrying capacity of 04 tonnes from HNZM to VSKP for a

period of three years i.e. 11.09.2007 to 10.09.2010 with a

clause for extension of lease for further two years. That the

petitioner vide letters dated 29.01.2010 and 15.07.2010

sought extension of the lease under the terms and

conditions as stipulated in the CPLP as well as the contract

and to the utter surprise of the petitioner, the respondent

vide its letter dated 22.9.2010 granted extension

provisionally only 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 and is

hence entitled to relief.

4. Mr. Majumdar, learned counsel for the respondent

submits that the petitioner was not granted extension of the

contract in Train No. 2808-II 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 overloading. 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 by overloading. 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 excess loading. Counsel for the respondent

has also not disputed that there was a single instance of 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 the over

loading of the consignment. It is, therefore, quite apparent

that the imposition of penalty by the respondent due to

overloading of parcels by the lease holders 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. 11.09.2010 till

12.09.2012 in terms of clause (E) of the Comprehensive

Parcel Leasing Policy and Clause 18 of the Contract for

transportation of parcels of 4 tonnes (FSLR) from HNZM to

VSKP in Train No. 2808-II.

10. With the above directions, the present petition

stands disposed of.

KAILASH GAMBHIR, J AUGUST 16, 2011 dc