Madras High Court
The Secretary Cum Commissioner vs Kannappan Iron And Steel on 5 July, 2021
W.A.No.1879 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.1879 of 2019
and C.M.P.No.12756 of 2019
1.The Secretary cum Commissioner,
Rural Development Department,
Government of Tamilnadu,
Secretariat, Chennai – 600 009.
2.The Collector,
Thanjavur District,
Thanjavur.
3.The Project Director,
District Rural Development Agency (DRDA)
Collectorate of Thanjavur,
Thanjavur. .. Appellants
Vs
Kannappan Iron and Steel
Company Pvt Ltd.,
Rep. By its Managing Director,
Mr.T.S.P.Kannappan,
No.9/111, Kalidoss Road,
Ramanagar, Coimbatore – 641 009.
(also at RS.No.10/1, Nagoor Road,
Melayanjore, TR Pattinam,
PO Karaikkal – 609 608) .. Respondent
Page 1 of 6
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W.A.No.1879 of 2019
Appeal filed under Clause 15 of Letters Patent against the order
dated 13.02.2018 made in W.P.No.21515 of 2012.
For Appellants : Mr.D.Ravichander
Government Counsel
For Respondent : Mr.K.V.Babu
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
This appeal is directed against the order of the learned Single
Judge, who while setting aside the order impugned, directed the
appellants to return the security deposit for a sum of Rs.24,62,000/-
by taking into consideration Clause 9 as against Clause 11 of the
conditions of the contract.
2. The respondent/writ petitioner is a Company involved in the
manufacturing of steel. It was awarded the contract by the appellants.
An agreement was entered into with respect to supply. After issuance
of show-cause notice, the contract was cancelled and a consequential
order of forfeiture was made for bleated supply. An order for
blacklisting was also passed. This was put to challenge by the
respondent which was allowed as aforesaid. Challenging the said order,
the present appeal is before us.
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W.A.No.1879 of 2019
3. To the show-cause notice issued, the respondent submitted
that the work could not be completed within time as stipulated under
the terms of the contract for want of power supply. This was rejected
in the impugned order and the learned Single Judge found that an
opportunity was not given to explain his case personally and there
appears to be a contradiction between Clause 9 and Clause 11.
4. Learned Government Counsel appearing for the appellants
submitted that Clauses 6,9 and 11 will have to be read in conjunction
with each other and the supply having not made, the order requires
interference.
5. Learned counsel appearing for the respondent/writ petitioner
submitted that Clause 9 is a clause which is applicable to both the
parties to the contract and it is distinct to Clause 11. Clause 6 is a
general clause. Therefore, the appeal deserves to be rejected.
6. We do not find any merit in this appeal. We have perused
Clauses 6,9 and 11. Clause 6 merely speaks of the effects of
cancellation if supply is not made. It merely facilitates an action to be
taken. Clause 9 deals with compliance by the purchaser and supplier,
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W.A.No.1879 of 2019
namely, the appellants on the one hand and the respondent/writ
petitioner on the other hand. This is a substantive clause. This clause
excludes accident or disruption including explosion, break down of
essential machinery or equipment, power and water shortage. This
provision makes it clear that the doctrine of force majure is not limited
to the aforesaid contingencies. It is not in dispute that there was a
power shortage.
7. Clause 11 merely speaks about the delivery schedule. The
delivery schedule would come after manufacturing is done. This is with
respect to supply. Supply per se is different from the manufacturing
leading to readiness on the part of the respondent. Therefore, Clause
11 has to stand on its own legs and so also Clause 9. This is only
consequence on the premise that the manufacturing is done but supply
by way of delivery is delayed. Inasmuch as Clause 9 controls both the
purchaser and the supplier being substantive in nature, the same will
have to be taken into consideration. In fact, it is also an admitted case
that the very same respondent has complied with the supply for other
Districts. It is not as if the inability to supply is deliberate or
intentional.
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W.A.No.1879 of 2019
8.In such view of the matter, we do not wish to interfere with the
ultimate conclusion arrived by the learned Single Judge. After all,
Clause 9 has to be interpreted in a fair manner especially when power
is conferred on the appellants to take action including by way of
cancellation which they did exercise. The appellants have also not
shown before us that Clause 9 has no application to the case on hand.
9. In such view of the matter, the writ appeal stands dismissed.
The order of the learned Single Judge is confirmed and the security
deposit amount as quantified by the learned Single Judge will have to
be returned by the appellants without interest within a period of eight
weeks from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
(M.M.S., J.) (R.N.M., J.)
05.07.2021
Index:Yes/No
mmi/ssm
https://www.mhc.tn.gov.in/judis/
W.A.No.1879 of 2019
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
W.A.No.1879 of 2019
05.07.2021
https://www.mhc.tn.gov.in/judis/
