Basant Bagde vs Hindustan Prefab Limited & Ors.
2012 Latest Caselaw 744 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                            LPA 7 OF 2010
                                  &
                             LPA 176 OF 2011

%                                  Pronounced on: 03.2.2012

                          LPA 7 OF 2010
BASANT BAGDE                                   ... APPELLANT
                        Through:   Mr. Amit Anand Tiwari, Advocate
                                   with Mr. Ajay Kumar Singh,
                                   Advocate.

                             VERSUS

HINDUSTAN PREFAB LIMITED & ORS.       . . . RESPONDENTS

Through: Mr. Radhakant Tripathy, Advocate for R.1 & 2.

Mr. A.P. Mayee, Advocate with Ms. Praveena Gautam, Advocate for R.3.

                            LPA 176 OF 2011

%                                  Pronounced on:03.2.2012

BASANT BAGDE                                   ... APPELLANT
                        Through:   Mr. Amit Anand Tiwari, Advocate
                                   with Mr. Ajay Kumar Singh,
                                   Advocate.

                             VERSUS

HINDUSTAN PREFAB LIMITED & ORS.       . . . RESPONDENTS
                Through: Mr. Radhakant Tripathy, Advocate
                         for R.1 & 2.
                         Mr. A.P. Mayee, Advocate with
                         Ms. Praveena Gautam, Advocate
                         for R.3.


 CORAM :-

       HON'BLE THE ACTING CHIEF JUSTICE
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


A.K. SIKRI, ACTING CHIEF JUSTICE

1. The appellant herein had filed Writ Petition (C) 13836/2009 seeking following prayers:-

(i) Issue a writ of certiorari quashing the order dated 30.6.2009 passed by respondent no.1;

(ii) Issue a writ of mandamus directing the respondents to apply the amendment no.26 dated 1.4.2008 by way of which the rate of steel was increased from ` 24/- to ` 50/- to present contract awarded to the Appellant for 11 packages;

(iii) Issue a writ of mandamus directing the respondents to make the payment to the appellant after calculating the rate of steel @ ` 50/- per kg;

(iv) Issue a writ of certiorari quashing the letter dated 16.9.2009 of respondent no.1 cancelling six packages out of total 11 packages awarded to the appellant;

(v) Issue a writ of mandamus directing the respondents not to cancel the contract of the appellant in respect of remaining 5 packages;

(vi) Pass such other writ, order or orders or direction, which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.

2. When this writ petition came up for preliminary hearing on 17 th

December, 2009 before the learned Single Judge, the learned Single

Judge issued limited notice pertaining to prayer (iv) and (v) only and

refused to issue notice in respect of prayers (i) to (iii).

As far as prayers (i) to (iii) are concerned, the appellant herein had

sought direction against the respondents to make the payment at the

increased rate from ` 24/- to ` 50/- in respect of the contract awarded by

the respondent to the appellant. We may state that the respondent had

floated tenders for construction of Houses with Infrastructure under

BSUP Scheme of JNNURM in Raipur City. The tenderers were required

to submit their bid on percentage basis at par, over or below the rates

based upon Chhattisgarh PWD Schedule of Rates (SOR 1999). The

appellant was awarded the contract on rates quoted by him @ 59% above

SOR 1999. However, between 21st March, 2008 and 3rd April, 2008, the

rate of steel was increased from ` 24 per kg to ` 50 per kg in the SOR

1999. On that basis the appellant had claimed that he was entitled to the

benefit of the said enhanced rate in steel from ` 24 per kg to ` 50 per kg

w.e.f. 1st April, 1999. This demand was rejected by the respondent. That

was the reason for making a prayer for payment @ ` 50 per kg instead of

` 24 per kg against the consumption of the steel in the contract. The

learned Single Judge refused to issue the notice on these prayers in his

order dated 17th December, 2009 and took the view that the stand taken

by the respondent does not require interference while exercising power of

judicial review under Article 226 of the Constitution of India. At best

there is a commercial dispute between the appellant and the respondent

M/s Hindustan Prefab Ltd. to which the appellant had adequate remedy

by invoking arbitration clause or invoking jurisdiction of a civil court.

Challenging this order dated 9th December, 2009 whereby the notice was

issued to limited extent, the appellants have filed LPA 7/2010.

3. While this appeal was pending, the writ petition on which notice

was issued in respect of prayers (iv) and (v) was ultimately decided by

the learned Single Judge after the completion of pleadings on that aspect

and hearing the oral submissions of the parties. It has culminated in the

judgment dated 27th September, 2010 rendered by the learned Single

Judge dismissing the writ petition even as regards prayer (iv) and (v)

finding no merits in those prayers as well. It is for this reason, two

appeals i.e. LPA 7/2010 and 176/2011 were clubbed and heard together

which we propose to decide by means of present judgment.

4. First, facts in brief:

(i) On 20th March, 2008, the respondent issued a notice inviting

sealed percentage rate tender (NIT) for construction of houses with

infrastructure under BSUP Scheme of JNNURM in Raipur City. Under

this Scheme, houses at low cost were to be constructed in 11 packages in

two lots of five and six packages at Raipur in Chhattisgarh. Scheme was

that of State of Chhattisgarh for which the respondent no.1, a

Government of India Undertaking was chosen as an executing agency by

the State/respondent no.3.

(ii) The tenders were to be submitted between 21st March, 2008 and 3rd

April, 2008. Clause 5 of the Special Conditions of Contract (SCC)

required the tenderer to quote rates on percentage basis "below/at

par/over) Madhya Pradesh (Chhattisgarh) Schedule of Rates, 1999".

Clause 11.01 of the NIT provided that in case of percentage rate tenders,

"the tenderer should quote a unique single percentage (plus/at par/minus)

over the total estimated amount given in the schedule/bill of quantities."

It is further stated that "under no circumstances, such a tenderer is

allowed to quote separate percentages for individual items, trades or

group of items." As per the appellant, four attempts were made on earlier

occasions by the respondent HPL to award the contract but the bids

received were non-competitive. It is for this reason, on 1st April, 2008

the Competent Authority i.e. the Engineer-in-Chief of Public works

Department (PWD), Chhattisgarh amended the Madhya Pradesh

(Chhattisgarh) Schedule of Rates, 1999 (SOR) for building works by

enhancing the rate of steel from ` 24 per kg to ` 50 per kg.

(iii) The appellant submitted six tenders on percentage basis. The

quoted rates were 109% above the SOR, the tenders were opened and the

lowest bidder was awarded seven packages out of total 18 packages at the

rate of 59% of SOR. Thereafter, the HPL negotiated with the appellant as

well in terms of Clause 7 of NIT. The appellant agreed for L-I price

which was 59% above SOR, subject to grant of a minimum of five

packages. It was in these circumstances, contract relating to five packages

was awarded to the appellant by the HPL vide agreement dated 7 th June,

2008. As per this contract, the appellant was required to construct in each

package 1536 dwelling units within a period of 18 months. Thereafter,

another supplementary agreement dated 23rd August, 2008 was also

signed between the appellant and the HPL awarding the appellant

remaining six packages of the NIT as well.

(iv) The appellant states that he commenced the work and submitted his

first running account bill to the HPL. In the said bill, the appellant while

quoting the rates of steel, took into account the rate of steel as amended

up to 1st April, 2008 by the Competent Authority. However, HPL refused

to entertain any claim on the basis of the revised rates of steel, and

conveyed this by its letter dated 18th September, 2008.

(v) Aggrieved by the above decision dated 18th September, 2008 the

appellant filed a W.P.(C) 7044/2008 before this Court. On 19th March,

2009 the learned Single Judge dismissed the writ petition on the ground

that the appellant had an alternative remedy by way of arbitration. It was

further held that this Court did not have territorial jurisdiction merely

because HPL was located in Delhi. Also, the failure to implead the State

of Chhattisgarh was held to be fatal to the appellant.

(vi) Aggrieved by the above order dismissing his writ petition, the

appellant filed a LPA No. 182/2009 before the Division Bench of this

Court on 15th April, 2009. By an order dated 21st May, 2009 in the LPA,

the Division Bench impleaded the State of Chhattisgarh as a party. By a

detailed judgment dated 28th May, 2009, the Division Bench allowed the

LPA and directed HPL to consider the claim of the appellant for grant of

increased rate of steel @ ` 50 per kg. The Division Bench held the writ

petition projecting disputes arising out of a contract to be nevertheless

maintainable in view of the decision of the Supreme Court in ABL

International Ltd. Vs. Export Credit Guarantee Corporation of India

(2004) 3 SCC553.

(vii) As per the appellant, the HPL informed him that pursuant to the

aforesaid directions of the Division Bench of this Court in LPA, the case

of the appellant for grant of amended rate of steel had been recommended

to the State of Chhattisgarh. However, the State of Chhattisgarh (R-3)

reiterated that the appellant should accept ` 24 per kg and the petitioner

also gave an undertaking on 29th June, 2009 that he would not be

approaching this Court for adjudication of his grievances. On this basis,

order dated 30th June, 2009 was passed by the HPL stating that the

appellant was not entitled to the amended rate of steel.

(vii) In the writ petition filed by the appellant claiming this rate of ` 50

per kg, the appellant has alleged that since he was facing huge losses on

account of denial of the payment of work already completed by him and

his business virtually came to halt for want of money, he accepted the

rate of ` 24 per kg under unrelenting coercion. He filed two CMs in the

disposed of LPA alleging that the respondents were neither making

payment on the basis of the admitted rate of steel and had also stopped

making land available for the construction of the houses. Prayer was

made for grant of amended rate of steel at ` 50 per kg. In these

applications, notice was issued on 15th September, 2009. On 16th

September, 2009, HPL cancelled the six packages out of total 11

packages awarded to the appellant on the ground that the appellant had

failed to comply with one of the terms of contract which required him to

furnish a performance guarantee. Suffice it to state that one more

application was filed by the appellant challenging the order dated 16th

September, 2009 which was taken up on 10th November, 2009. The

appellant withdrew these applications with liberty to file substantive writ

petition. It was in this backdrop that the writ petition was filed which has

met the aforesaid fate and is now the subject matter of the present

appeals.

5. It is clear from the aforesaid narration that two aspects of the issue

were taken up by the appellant namely;(i) payment of steel at the

increased rate from ` 24 per kg to ` 50 per kg in respect of which no

notice had been issued by the learned Single Judge holding that the same

can be agitated in the arbitration proceedings or civil proceedings;(ii) to

challenge the orders dated 16th September, 2009 whereby 6 packages

out of 11 were cancelled and the appellant also wanted restrain order

against the respondent for not cancelling the remaining 5 packages as

well. Since the two issues are the subject of two appeals, we take up

these issues in each of these appeals.

LPA 7 OF 2010

6. The short question in this appeal is as to whether issue of payment

at increased rates from ` 24 per kg to ` 50 per kg could be dealt with in

the writ proceedings or the appellant is required to initiate arbitration/civil

proceedings to agitate this claim. The learned Single Judge while

relegating the appellant to civil proceedings has given the following

rationale:

"At best there is a commercial dispute between the petition and the respondent M/s Hindustan Prefab Ltd. to which the appellant has adequate remedy by invoking arbitration clause, if any, or invoking jurisdiction of a

civil court. This is not a case in which the stand taken by the respondents can be per se categorized as arbitrary, which requires interference of the writ court. The respondents are entitled to take a commercial decision and have to be given sufficient latitude when they take administrative decision in commercial matter in the interest of the respondents company. As per the letter dated 30th June, 2009, the terms of SOR 1999 before amendment dated 1st April, 1999 are applicable and on this basis the tender of the appellant was found to be lowest. In LPA No. 182 of 2009, the Division Bench interfered and held that writ jurisdiction could be invoked as "no decision has been (was) taken on the bills raised...as per revised rates". It was held that "indecision and inaction was unacceptable and unreasonable". The respondent has now taken their decision and the appellant if aggrieved and has any dispute, should invoke ordinary civil jurisdiction."

7. Assailing the aforesaid reasoning given by the learned Single

Judge, argument of the appellant was that there was no dispute of facts

and only interpretation of certain Clauses of the contract was involved.

He argued that admittedly last date for submitting the tender was 3 rd

April, 2008 and the tenderer were required to submit their bid on

percentage basis at par, over and below the rates based upon SOR 1999.

The aforesaid schedule of rates i.e. SOR 1999 was revised on 1 st April,

2008 i.e. before the last date of submission of the tenders and the rate of

steel was increased from ` 24 to ` 50 per kg. The rates submitted on the

basis of which contract was entered between the HPL and the appellant

was 59% above SOR 1999. The learned counsel for the appellant argued

that in these circumstances, the only question was as to whether the

original rates under SOR 1999 were applicable or SOR 1999 as amended

on 1.4.2008 were applicable when the last date of submission of tender

was 3.4.2008? This, contended the learned counsel, was a pure question

of law and, therefore could have been gone in the writ proceedings. He

argued that the SOR 1999 as amended on 1.4.2008 was clearly applicable

as per which the appellant was entitled to the increased price rate of

steel @ ` 50 per kg and non-payment thereof was clearly arbitrary action

of the respondents and in these circumstances provision of Article 14

stood attracted and thus the writ petition was maintainable. He also relied

upon the earlier judgment of the Division Bench dated 15th September,

2009 and according to him the Division Bench had already held in the

said case that the writ petition was maintainable. He thus submitted that

this order pertaining to the same contract between the same parties

rendered by the Division Bench was binding on the learned Single Judge.

8. The facts which emerged on record disclose that the appellant had

earlier filed writ petition No. 7044/2008 seeking identical relief namely

payment at increased rate of `50 per kg instead of ` 24 per kg. This was

dismissed by the learned Single Judge vide order dated 19 th March, 2009

on two grounds:-

(a) The issue could be a subject matter under Article 226 of the Constitution and proper mechanism in resolving the issue is either the arbitration or civil proceedings as the case may be;

(b) The High Court of Delhi did not have territorial jurisdiction merely because the HPL had its office in Delhi. More so, HPL was an executable agency in respect of work for the principal namely State of Chhattisgarh and was to be performed at Raipur, Chhattisgarh and when the State of Chhattisgarh which was a necessary party was not even impleaded.

9. In the LPA 182/2009 filed by the appellant challenging this order

of the learned Single Judge, the Division Bench admitted the appeal and

impleaded the State of Chhattisgarh as a party. Thereafter, the appeal

was finally decided on 28th May, 2009 holding that this Court has the

territorial jurisdiction. The Division Bench also held that the writ petition

was maintainable inasmuch as even in contractual matters, if the action of

the State and its instrumentality is arbitrary, unreasonable and illegal, the

Court can exercise its extra ordinary jurisdiction under Article 226 of the

Constitution. Support from the ratio laid down by the Apex Court in

A.B. International Ltd. (supra) was taken. Applying this ratio, the

Division Bench made the following observation:-

" On a given set of facts if „the State‟ acts in an arbitrary manner even in a matter of contract, an aggrieved party can approach the court by way of writ under Article 226 of the Constitution and the Court depending on facts of the said case is empowered to grant the relief. In the present case there has been an amendment to the rates on the basis of which the appellant has raised its demand. No decision has been taken on the bills raised by the appellant as per the revised rates. This indecision and inaction clearly is unacceptable and unreasonable. We have, accordingly directed respondent No.1 which had floated the tender enquiry on behalf of the State of Chhattisgarh to take a decision within a period of two weeks. It will be open to the appellant to take appropriate remedies in accordance with law in case it is aggrieved by the decision of the respondent no.1 With these observations, the present appeal as also the writ petition stand disposed of as nothing further survives in the same."

10. It is clear from the above that what was perceived as arbitrary and

on the basis of which the writ petition was held to be maintainable was

that even the decision on the request of the appellant for payment at the

rate of ` 50 per kg. instead of ` 24 per kg qua the quantity of steel had

not been taken. This is clear from the reading of para 5 of the said order

wherein the contention of the counsel for the appellant were noted as per

which vide letter dated 18th September, 2008, the Public Works

Department, Chhattisgarh, Raipur had directed the HPL to take a

decision at its level in respect of bills as per the contract but no decision

had been taken. In para-6 on this point the Bench observed that in view

of the categorical stand of the HPL that they were directed by the PWD

to take a decision, the said decision had not been taken and this direction

was given to the HPL to take decision within two weeks.

11. In view of the above, it would be difficult for the appellant to take

shelter made the aforesaid order of the Division Bench. The order did

not go to the extent of holding that if the decision taken by the HPL

goes against the appellant even then the appellant shall be entitled to file

a writ petition.

12. Still, one could argue (which is the submission of the appellant as

well) that if there are no disputed question and the matter pertains only to

interpretation of the Clause, the matter is in the realm of interpretation on

the basis of the rates which are admissible to the appellant, writ petition

could be maintainable as denial of „admitted‟ rates may amount to

arbitrariness on the part of the State or instrumentality/agency of the

State. However, the matter does not rest here. This argument ignores

certain vital facts which take away the case from the realm of "admitted

facts" and bring the issue in the arena of "disputed facts". As per the

appellant himself, when the respondents reiterated and asserted that the

appellant shall be entitled to claim on ` 24 per kg for the qualities of steel,

he accepted the same vide his letter dated 26th September, 2009. This

letter is in Hindi and English translation whereof reads as under:-

"For the afore subject work, I am agreeable to work at the sanctioned rate of Steel at the rate of ` 24 per kg. plus 59 percent agreed as per the contract agreement for the rate of steel and I will not go to court in respect of rate of steel."

13. There is also, on record, letter dated 30th June, 2009 addressed by

HPL to the appellant narrating the events of the contract in question and

ascertaining that the appellant had entered into agreement/contract which

is subject to the general/special terms and condition as per the bid

documents and the offered rates selected to the bid process. As per the

respondent, there was no terms and condition for price escalation to the

agreement/contract for the subject project. The decision as per this letter

thus was that amended notification dated 1.4.2008 issued by the Chief

Engineer, PWD was not applicable. It is also highlighted that the

appellant willingly signed the agreement much later than the date of

issue of the amendment to SOR 1999 rates and at the time of signing

and acceptance of work, the appellant had not raised any objection about

the amended rate and its implication in future and therefore the claim for

`50 per kg was not justified. It is important to note that the appellant has

not denied his letter dated 29th June, 2009 vide which he accepted the

rates of ` 24 per kg. His submission is that the respondents were not

releasing the payments even in respect of work already completed and

because he was facing financial crunch and therefore, issuance of this

letter was unvoluntary and under coercive circumstances. Naturally,

these are the aspects which cannot be dealt with or gone into in writ

proceedings under Article 226 of the Constitution which is an extra

ordinary jurisdiction. In these circumstances, if the discretion is

exercised by the learned Single judge relegating the parties to

arbitration/civil remedies, we do not find any error therein as the

aforesaid dispute highlighted by us requires evidence which process can

be under taken only in arbitral/civil proceedings.

14. We thus confirm the orders dated 17th December, 2009 passed by

the learned Single Judge refusing to issue notice on prayer (i), (ii) and

(iii) of the writ petition and dismiss this appeal.

LPA 176 OF 2010:

15. As pointed out above, the subject matter of this appeal is letter

dated 16th September, 2009 vide which the HPL cancelled 6 packages

out of total 11 packages awarded to the appellant. The reason which led

to this cancellation, as stated in the said letter is that the appellant had

failed to fulfill the contractual obligation to furnish performance

guarantees as mentioned in Letter of Intent (LOI) dated 24th July, 2008

and agreement dated 23rd August, 2008. It is stated that according to

condition No.7 of NIT dated 20th March, 2008 and also condition No. 9.1

of the General Conditions of Contract, it was obligatory on the part of

the appellant to furnish the performance guarantees and since these

guarantees have not been furnished, the LOI issued thus stands

withdrawn and contract cancelled.

16. It is not in dispute that the bank guarantees as required under the

said LOI had not been furnished by the appellant. However, the main

plank of attack of the appellant quashing the termination was that the

aforesaid communication dated 19th September, 2009 was an act of

arbitrariness and malice in law. Malice was sought to be projected by

submitting that after the judgment of the Division Bench in the first round

of litigation, the respondent had become vindictive. Though, the

appellant had completed the substantial work in respect of contract,

payments were due and not released to the appellant even when

calculated under unamended rates. It was argued that these payments

could easily be adjusted towards the amount for which bank guarantees

for the remaining 6 packages were to be furnished and non furnishing of

the said bank guarantee was only an excuse. It was also argued that the

HPL had received a sum of ` 41.22 crores from the respondent no.3 who

had retained ` 18.3 crores. In the counter affidavit filed by the HPL, the

HPL had joined the issue on each other aspect. It contended that there

were no outstanding bills of the appellant that remained to be paid. It was

also denied that HPL or its CMD had acted out of malice either in law or

in fact. The HPL went to the extent of arguing that there was serious

issues of non-fulfillment of the conditions of the contract by the

appellant concerning even the other 5 packages but at present the said

contract of 5 packages have not been cancelled which showed that no

malice was shown by the HPL.

17. The learned Single Judge after c9onsidering the aforesaid

respective pleas, dismissed the writ petition vide impugned order dated

27th September, 2007 taking a view that the matter was purely contractual

in nature and there was no serious dispute on the essential facts.

18. The respective pleadings of both the parties in fact reflect that the

issue raises the disputed question of facts. Coupled with this, we notice

that furnishing of performance guarantee was a mandatory condition and

has not been admittedly fulfilled by the appellant. Termination of the

contract on this ground would be in accordance with the contractual terms

prima facie cannot be termed the issue as to whether substantial amount

were due to the appellant from other contracts and against those

payments, the guaranteed amount could be adjusted or not is an issue

which can be gone into only in arbitral/civil proceedings and cannot be

the subject matter of the Article 226 of the Constitution.

19. This leaves us to the question as to whether there was any malice in

law as malice in fact cannot be determined unless the facts are first

ascertained.

20. In an attempt to establish malice in law, the appellant relied upon

and referred to the letter dated 19th September, 2009 which was written

by HPL to the Principal Secretary of respondent no.3/State. In that letter,

reference was made to meeting held on 28th August, 2009 between the

Principal Secretary of the Government and the officials of the HPL when

the withdrawal of the contract awarded to the appellant was decided, for

which the land was yet to be made available by the State Government for

execution. In this letter, it is stated that the contract with the appellant

has been cancelled by issuing letter dated 16 th September, 2009 which

further mentions that:-

"We have cancelled the contract putting blame of non- fulfillment of contractual obligations by the contractor, although we were unable to hand over the land for the project, being not made available to us by the Government of Chhattisgarh and also the constraints in release of funds, even against the ongoing contract."

The HPL has further stated that because of non allotment of the

land by the State to the HPL, the HPL is not to be made responsible for

any financial implications or legal issues arising, if any, due to

cancellation of contract. This letter, in first blush, may give an impression

that the contract is terminated for oblique reasons, inasmuch as it was

non-fulfillment of land. However, when the said letter is read in its

entirety, there cannot be an authoritative determination of malice in

law. It is to be borne in mind that the HPL is assigned the work by the

State and obviously HPL wanted to save its skin and did not want any

liability to come upon it, not only from the State insofar as non

performance of the 6 packages for want of land is concerned, it did not

want any liability to come upon it as a result of impugned termination as

well. The letter is to be read in that hue which may be a subject matter

of controversy between HPL and the State/R-3.

21. What is more important is that the contents of this letter of HPL

are strongly refuted by the respondent no.3 vide communication dated

25th September, 2009. This aspect is dealt with by the learned Single

Judge in the following words:-

"20. The appellant wants this Court to infer from the above letter that HPL had been acting under dictation of Respondent No.3 and therefore proceeded to cancel the six packages although there was no justification for it. If what is stated in the above letter had not been refuted by Respondent No.3 then it would have been possible to draw such an interference. However, by a letter dated 25th September, 2009 addressed to respondent No.2, the Principal Secretary took strong exception to the suggestion and pointed out that the meeting held on 28th August, 2009 chaired

by the Secretary MoHUPA related to "serious issues of delay and poor quality arising entirely due to bad execution and supervision. The meeting was not meant to conspire on how to falsely implicate anybody." He added: "your letter seeks to give an impression that the Secretary MoHUPA-GOI or the undersigned had directed you to unfairly act against the contractor to cancel his LOI. Such suggestion is simply atrocious and confirms our suspicions that HPL‟s sympathies are more towards the non-performing contractor than towards the Government of Chhattisgarh which has engaged your services and whose trustee you are expected to be". While asserting that "neither land nor money is an issue at all", the Principal Secretary signed off the letter stating "please note that we shall act to ensure that all culprits are brought to justice.

21. The above exchange of correspondence hardly enables this Court to come to a conclusion that Respondent No.3, with whom the Appellant admittedly has no privity of contract, and HPL, with whom alone the Appellant had a contract, were conspiring to unfairly terminate the Appellant‟s contract for six packages. The entire case of the Appellant hinges on the letter written by Respondent No.2 to Respondent No.3 which is at best hearsay evidence which in any event is disputed by Respondent No.3. The latter in fact seems to suggest that Respondent No.2 is trying to shield the Appellant. In fact, learned Senior Counsel for the Appellant was hard pressed to show how the above exchange of correspondence substantiated the case of the appellant that either or both Respondents 1 and 3 were acting against him out of malice in law or fact."

22. We are quite in agreement with the aforesaid analysis, malice in

law is not established. Whether there was malice in fact or not can be

gone into only on the basis of evidence and the learned Single Judge has

rightly relegated the parties to alternate remedies.

23. Accordingly, this appeal is also dismissed. However, there shall be

no order as to costs.

ACTING CHIEF JUSTICE

(SIDDHARTH MRIDUL) JUDGE FEBRUARY 3, 2012 skb