M/S Hussain Enterprises vs Ut Of Ladakh & Ors
2023 Latest Caselaw 674 j&K/2

                                                                             Sr.No. 02


                    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT SRINAGAR

                                                       WP (C) No. 3069/2022

                                                       Reserved on    : 19.04.2023
                                                       Pronounced on : 31.05.2023

     M/S Hussain Enterprises                                             ... Petitioner(s)

                       Through :- Mr. Hakim Suhail Ishtiaq, Advocate

             V/s

     UT of Ladakh & Ors.                                               ... Respondent(s)
                       Through :- Mr. T.M Shamsi, DSGI
     Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                            JUDGMENT

31.05.2023

1. In the instant petition filed under Article 226 of the Constitution, the

petitioner firm herein seeks writ of mandamus against the respondents

herein for payment of an amount of Rs. 1,22,53,871.00/- (Rupees One

Crore Twenty Two Lacs Fifty-Three Thousand Eight Hundred Seventy

One only/-) along with interest @ as may be deemed appropriate by the

Court.

2. Facts as are discernible from the record, necessary for the decision of the

instant petition are that the respondents herein floated an E-Tender bearing

No. 386 of HE Div. Leh of 2021-22 dated 19.03.2022 for supply of 20mm

Dia Pre-Insulated MDPE pipe outer Dia PE8o PN 16 ISO 4427:2007.

3. The petitioner submitted a bid of Rs. 1,24,81,042.00/- (Rupees One Crore

Twenty-Four Lacs Eighty-One Thousand Forty-Two Only/-) and

consequently came to be declared as L1 by the respondents and

accordingly, a letter of acceptance was issued in his favour by Respondent

2 vide letter No. CE/PHE-I&FC/UTL/Supply/2022-23/271-73 dated

04.05.2022 with a clear direction to the petitioner to mobilize his resources

for supply of the material.

4. The petitioner claims that the items to be supplied to the respondents being

not readily available in the market and manufactured by the manufacturer

on orders upon placing an order only, the petitioner placed an order for

manufacture and supply of the items to the concerned manufacturer only,

when the respondents issued the letter of acceptance.

5. The petitioner claims to have entered into negotiations as well with the

respondents qua the rate quoted earlier by him in respect of the items to be

supplied to the respondents whereupon same were reduced.

6. The respondents/Respondent 3 states to have issued supply order bearing

No. CE/PHE-I&FC/UTL/Supply/2022-23/1117-20 dated 25.08.2022 in

favour of the petitioner and as per the time duration clause provided in the

said supply order, that the items have had to be supplied by the petitioner

to the respondents within 25 days.

7. The petitioner however, states to have informed the respondents

immediately upon issuance of the supply order that the order for

manufacturing of the items to be supplied had been placed by the petitioner

with the manufacturer only after the finalization of negotiated rates, as the

earlier order placed with the manufacturer by the petitioner had been

withdrawn and as such, sought more time for making the requisite supplies,

as also, as and when a substantial quantity of the items kept manufactured

by the manufacturer.

8. It is also being stated by the petitioner that items to be supplied to the

respondents have had been inspected by an expert firm engaged by the

respondents namely "Rites Limited".

9. It is being further stated that the petitioner upon receiving supplies of the

items from the manufacturer, supplied the same to the respondents

however, in the meantime received a communication No. PHE/CC-

JJM/2022-23/3592-94 dated 25.10.2022 from the respondents asking the

petitioner to supply the balance material within 07 days, in response to

which the petitioner claims to have addressed letter dated 26.10.2022 to the

respondents seeking grant of extension of one month for completing the

supply of items.

10. The petitioner claims to have supplied the entire quantity of the items to

the respondents in terms of supply order acknowledged by the respondents

and consequently had sought release of payments thereof.

11. The Respondent 3, however, is stated to have refused to release the

payments in favour of the petitioner in terms of invoice dated 10.12.2022

on the ground that in terms of the supply order, the petitioner had to supply

the items within 25 days ignoring the issuance of letter dated 25.10.2022

addressed by Respondent 3 to the petitioner as well as letter dated

26.10.2022 submitted by the petitioner in response thereto.

12. It is being stated that the petitioner did not commit any delay in making

supplies to the respondents deliberately or intentionally, but the said delay

occurred on account of delayed issuance of supply order and also on

account of the negotiations of rates held prior to the issuance of the same

and post issuance of letter of acceptance.

13. The respondents, though entered appearance before the court through their

counsel on 31.12.2022 and sought time to file objections to the petition

while availing one more opportunity thereafter on 27.02.2023 did not file

objections thereto. However, the appearing counsel for the respondents

during the consideration of the matter produced a copy of objections of the

respondents to the petition and the same were taken on record.

14. In the objections, the respondents have stressed that in terms of the supply

order dated 25.08.2022, the petitioner had to supply the items within 25

days in which the petitioner failed. It is further being averred in the

objections that the petitioner did not produce any inspection certificate of

the items from the 3rd party and that as such, in absence thereof, the

petitioner cannot raise any bill against the items supplied by him.

Heard learned counsel for the parties and perused the record.

15. Learned counsel for the petitioner while making submissions reiterated to

the contentions raised in the petition whereas the counsel for the

respondents controverted the same in tune with the stand taken in the

objections.

16. Having regard to the nature of the controversy involved in the petition, the

ground urged by the respondents for denying payment to the petitioner for

the items supplied by him in terms of the allotment order dated 25.08.2022

is twofold; firstly, that the time was the essence of the contract, as the

petitioner have had to supply the items within the period stipulated in the

supply order, in which the petitioner failed and secondly, that the items

supplied by the petitioner had not been inspected by any 3rd party certifying

the quality of the items.

17. In so far as first issue (supra) raised by the respondents is concerned, it is

pertinent to note that the respondents though have had stipulated period of

25 days in the supply order within which the petitioner had to make the

supplies, yet Respondent 3 in terms of communication dated 25.10.2022

extended the said stipulated period of 25 days by further 07 days, thus

diluted the strictness of the condition of 25 days incorporated in the supply

order, manifestly suggesting that the respondents did not acknowledge

time to be the essence of the contract.

In so far as non-submission of inspection certificates by 3rd party, in

respect of the items supplied by the petitioner to the respondents is

concerned, the perusal of the record of the petition would reveal that the

petitioner has submitted to the respondents such certificates of the 3rd party

indisputably nominated by the respondents and without there being any

role of the petitioner in the said process of inspection of the items.

18. The perusal of the objections and the record appended therewith would

reveal that Respondent 3 addressed a letter to Respondent 4 on 29.06.2022

about the non receipt of items from the petitioner and in respect thereof,

Respondent 2 had recommended an action as per norms against the

petitioner, yet the respondents have not denied the fact that the petitioner

was invited for negotiations on the original price quoted by him, which

finally resulted into issuance of supply order dated 25.08.2022, therefore,

the respondents cannot take the plea, that the petitioner failed to supply the

items post issuance of letter of intent dated 04.05.2022, when admittedly

supply order came to be issued thereafter on 25.08.2022.

19. Having regard to the aforesaid facts and circumstances in as much as the

respective pleadings of the parties as above, the rival contentions of the

appearing counsel for the parties, the petition is disposed of in the

following manner:-

"the petitioner shall submit his invoice/s and all other

relevant documents in support of its claim before

Respondent 2 along with a copy of this order within 15

days, whereafter upon receipt of the same, Respondent

2 shall verify the quantity of items claimed to have been

supplied by the petitioner as also adherence to all

requisites and formalities as per the terms and

conditions of the E-tender dated 19.03.2022 read with

supply order dated 25.08.2022 and upon verifying the

same, Respondent 2 shall release all payment in favour

of the petitioner for the net quantity supplied by the

petitioner within a period of four weeks in accordance

with law and if there is no other legal impediment

thereto."

The petition along with connected application(s), if any, is accordingly

disposed of.

(Javed Iqbal Wani) Judge

Jammu:

31.05.2023
Manan


                   Whether the order is speaking      :      Yes

                    Whether the order is reportable   :      No