Tyrist Enterprises And Anr. vs The Chairman, Railway Board And ...
2015 Latest Caselaw 5661 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 5190/2015

       TYRIST ENTERPRISES AND ANR.                ..... Petitioners
                    Through: Mr. Prateek Jalan, Advocate with
                             Mr. Ankit Yadav, Mr. Anurag Singh,
                             Advocates.
                    versus

       THE CHAIRMAN, RAILWAY BOARD AND ORS...... Respondents
                   Through: Ms. Shipra Shukla, Advocate for
                            Mr. Jagjit Singh, Advocate for
                            respondents.
                            Mr. Santanu Ghosh, Advocate for
                            applicant-SREI Equipment Finance Ltd.


%                                Date of Decision : 6th August, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                              JUDGMENT

MANMOHAN, J: (Oral)

CM Appl.13762/2015 in W.P.(C) 5190/2015 Allowed, subject to just exceptions.

W.P.(C) 5190/2015 & CM Appls. 9413/2015 & 13761/2015

1. Present writ petition has been filed with the following prayers:-

"(a) Issue a writ of mandamus or pass an order/direction in the nature of Mandamus to return the subject wagons

(enumerated in Annexure P-17 hereto) to the Petitioners in terms of paragraph 12 of the Scheme or to purchase the subject wagons from Petitioner No.1 at the price offered by the Petitioners vide letter dated 8th May 2015 or at a mutually agreed price.

(b) Issue a writ of Certiorari or pass an order/direction in the nature of Certiorari quashing the letter dated 3.4.2014 (Annexure P-15) passed by the Member (Traffic), Railway Board.

(c) Pass a rule Nisi in terms of prayers above and if no cause or insufficient cause is shown, the Rule be made absolute.

(d) Direction against the Respondents from using the said rake of wagons, till disposal of this petition.

(e) Appoint a fit and proper person as a Receiver/Special Officer to make inventory of the said rake of wagons, and take possession thereof.

(f) Pass an Ad interim order in terms of prayers (d) and (e) above.

(g) Pass any further Orders this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

2. Mr. Prateek Jalan, learned counsel for petitioners states that the issue raised in the instant petition is no longer res integra as the same has been decided by a Coordinate Bench of this Court in W.P.(C) Nos. 5124/2014 and 5127/2014. The relevant portion of the judgment and order dated 29th June, 2015 in the aforesaid writ petitions is reproduced hereinbelow:-

"53. For the reasons mentioned above, I feel that the order dated 13.06.2014 rejecting the representation of the petitioners terminating the agreement dated 18.07.2006 is totally unsustainable in the eyes of law. I feel that since there was a

change/alteration in the terms and conditions of the WIS Scheme and consequently in the agreement dated 18.07.2006 unilaterally and arbitrarily without the consent of the petitioners which fundamentally changed the nature of WIS Scheme, so far as the preferential right of the petitioners is concerned, the petitioners were well within their right to terminate the agreement. The agreement having been terminated, the respondents were under an obligation to purchase the wagons from the petitioners at a fixed price in the event of non returning the same to the petitioners as the property in wagons continued to vest with the petitioners. I accordingly hold that the order dated 13.06.2014 of the Member Traffic, Railway Board is unsustainable in the eyes of law and the same is liable to be set aside and a writ of mandamus is issued to the respondents to either return the wagons to the petitioners within a period of one month from today or alternatively to purchase the wagons at an agreed price. However, so far as the question of purchase of wagons by the respondents is concerned, the price has to be agreed between the parties and certainly what will be the price of the wagons will be a disputed question. Since this is a disputed question of fact as to what would be the price unless it is mutually agreed, it deserves to be adjudicated, it will be not proper to permit the parties to fix either of the price unilaterally so as to cause further delay in the final disposal of the matter and in such a contingency since there is an arbitration clause, I feel that this aspect of the matter deserves to be settled through arbitration."

3. Ms. Shipra Shukla, learned counsel for respondents states that they have filed an appeal against the judgment and order dated 29 th June, 2015 passed in W.P.(C) Nos. 5124/2014 and 5127/2014. However, she candidly states that the said appeal has not been listed till date before the Division Bench.

4. Mr. Santanu Ghosh, learned counsel for applicant-SREI Equipment Finance Ltd. has filed an impleadment application stating that it had rendered financial assistance to the petitioners to acquire a rake comprising of 61 BOXN wagons. He prays for impleadment in the present petition.

5. Mr. Ghosh, however, states that he has no objection to the present petition being disposed of in terms of the judgment and order dated 29 th June, 2015 passed in W.P.(C) Nos. 5124/2014 and 5127/2014, provided any money received by the petitioner is deposited with the Receiver appointed by the Calcutta High Court in the Section 9 proceedings filed by the applicant.

6. In rejoinder, Mr. Jalan, learned counsel for petitioners states that he has no objection to the suggestion mooted by the learned counsel for applicant provided the same is without prejudice to his rights and contentions to challenge the arbitral award referred to and relied upon by the learned counsel for applicant in the application.

7. Having heard learned counsel for parties, this Court is of the view that as a Receiver has been appointed by the Calcutta High Court in Section 9 proceedings filed at the instance of the applicant-SREI Equipment Finance Ltd., it is a necessary and proper party to the present proceedings. Consequently, the impleadment application i.e CM No.13761/2015 is allowed

8. Since no order has been passed in the appeal filed by the Railways till date, this Court is of the view that there is no impediment in disposal of the present proceedings in accordance with the judgment and order dated 29 th June, 2015 passed in W.P.(C) Nos. 5124/2014 and 5127/2014.

9. This Court is also in agreement with the arguments of Mr. Jalan and Mr. Ghosh. Accordingly, present writ petition and application are disposed of in accordance with the paras 53 to 55 of the judgment and order dated 29th June, 2015 passed in W.P.(C) Nos. 5124/2014 and 5127/2014 with a direction that any money received by the petitioners in pursuance to the present judgment, shall be deposited with the Receiver appointed by the Calcutta High Court.

10. Needless to say, the present order is without prejudice to the rights and contentions of the petitioners to challenge the arbitral award in favour of the SREI Equipment Finance Ltd.

MANMOHAN, J AUGUST 06, 2015 js