Inland Road Transportation Pvt. ... vs Union Of India And Ors
2013 Latest Caselaw 98 Del

$~16
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      LPA 27/2013
       INLAND ROAD TRANSPORTATION PVT. LTD. ..... Appellant
                            Through :   Mr. Ashish Mohan, Adv.
                   versus
       UNION OF INDIA AND ORS                   ..... Respondents
                            Through :   Mr. R.N. Singh, Adv.


       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN

               ORDER

% 07.01.2013

Vide allotment letter dated 16.11.2007, the appellant was awarded contract of leasing 25 tons VPU in Train No.3040/39 from Delhi to Howrah and back, for a period of three years. Pursuant thereto, an agreement dated 5.8.2008 was duly executed between the appellant and the respondents. In terms of clause 20.1 of the Lease Agreement, the contract awarded to the appellant was extended for a further period of two years.

2. Vide order dated 27.10.2001, the respondent terminated the contract awarded to the appellant, alleging overloading by it. The termination order was challenged by the appellant before this Court by way of an OMP No.967/2011. The said OMP was disposed of by this Court on 18.1.2012, thereby declaring the termination order to be invalid and directing the respondents to hold an inquiry in relation in the matter of overloading on 17.1.2011. It was further held that in the event it is decided that the termination of the lease agreement was not warranted, the respondent would permit the appellant to immediately resume the lease subject to fulfillment of other conditions whereas in the event of the decision being adverse to the appellant, he would be at liberty to seek appropriate remedies including the reference of the disputes to arbitration.

3. Pursuant to the order passed by this Court on 18.1.2012, in inquiry was held and the Inquiry Officer concluded that the order of termination debarring the appellant may be revoked and it may be allowed to operate the lease contract. As regards refund of the penalty which had been imposed on the appellant, the Inquiry Officer recommended that the same may be decided by the Competent Authority in the Headquarters of the Northern Railways. Though the lease contract was restored by the respondents on the basis of Inquiry Report, the request of the appellant for refund of the penalty and grant of extra period of 134 days which was lost on account of premature termination of the contract was declined by the respondent vide communication dated 26.11.2012. The reason given in the communication dated 26.11.2012 for not acting upon the Inquiry Report was that it require approval of ADRM. In the writ petition filed by the appellant, the learned Single Judge vide impugned order dated 7.12.2012 directed the respondent to refund the penalty amount within two weeks failing which it was to carry interest @ 6% per annum. He, however, declined the prayer of the appellant to operate the lease agreement for a further period of 134 days after 30.11.2012.

4. As far as refund of the penalty amount is concerned, the prayer of the appellant has already been granted by the learned Single Judge. The only question which arises for consideration in this appeal is as to whether the respondent can be directed to extend the lease agreement for a further period of 134 days.

5. It was contended by the learned counsel for the appellant that since the lease agreement was extended for a further period of two years with effect from 1.12.2010, but the appellant could not operate the same for the full extended term, on account of premature termination of the contract by the respondent, there is no reason why the respondent should not permit the appellant to execute the agreement for full two years, after excluding the period of 134 days during which the agreement could not be executed on account of termination which was not attributable to any lapse or misconduct on the part of the appellant. The learned counsel for the respondent who appeared on advance notice, however, justified the order passed by the learned Single Judge and submitted that the respondent cannot be directed to extend the contract which has already expired by efflux of time on 30.11.2012.

6. We are in agreement with the learned Single Judge, that if the appellant is aggrieved on account of his not being able to execute the agreement for 134 days, due to premature termination by the respondent, the only remedy available to him is to sue the respondent for damages. The contract awarded to the appellant was initially for a period from 1.12.2007 to 30.11.2010 which was extended up to 30.11.2012. The agreement expired by efflux of time on 30.11.2012. The Court cannot, direct the respondent to extend the agreement which has already expired by efflux of time, because doing so, would amount to bringing into existence an agreement between two parties, without consent of one of the parties to the agreement. If the appellant has suffered damages on account of premature termination of the contract, nothing comes in the way of its filing a suit for recovery of the damages, if any, sustained by it on account of the said termination. But, no direction for extension of the agreement can be given by the Court, in exercise of its writ jurisdiction.

We find no merits in the appeal. The appeal is dismissed.

CHIEF JUSTICE

V.K. JAIN, J JANUARY 07, 2013 'rd'