M/S. Utkal Amrit (Jv) vs Cmd
2021 Latest Caselaw 11291 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK


                      W.P.(C) No.10695 of 2017
                       (Through Hybrid Mode)

M/S. Utkal Amrit (JV)                 .....                         Petitioner

                                               Mr. Avijit Patnaik, Advocate
                               Vs.
CMD, Mahanadi Coalfields              .....                 Opposite Parties
Ltd.and others
                                                      Mr. Saktidhar Dash,
                                                          Senior Advocate


                    CORAM: JUSTICE ARINDAM SINHA
                                       ORDER

03.11.2021

Order No.

04.

1. Mr. Patnaik, learned advocate appears on behalf of petitioner, who executed work under contract for Mahanadi Coalfields Limited. He submits, under challenge is communication dated 27th April, 2017, whereby Rs.3,87,48,913.35 was imposed as under loading charges. According to him it is a penalty. No opportunity of hearing was granted in issuing this demand, purportedly in terms and conditions as per clause-25.01 of the contract. He refers to clause-25.01, reproduced below :-

" All Pay loaders which are engaged for mechanical loading of coal into wagons are to be fitted with "True load" system to measure the quantity of coal loaded into particular wagon which are forming part of the rake."

2. On query from Court he submits, there is no penalty

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clause in relation to clause-25.01, in the terms and conditions. Furthermore his client had requested Regional Transport Authority (RTO), for installation of true load system in the pay loaders engaged for mechanical transfer of coal. The office replied by letter dated 5th May, 2017. According to him, permission was denied. Contents of said letter dated 5th May, 2017 are reproduced below :-

" In inviting reference to the subject cited above, I am intimating you that the manufacturer manufacatures the loader after getting approval from authorized testing agency, who is authorized by Govt. of India. Ministry of Road and Transport and Highways. Accordingly after getting approval, the same prototype loaders are manufactured. As per Motor Vehicle Act under Section 52 & Section 198, nobody can change or alter or allow altering the same prototype approved equipments/vehicles. The loading capacity of the loader only can be ascertained from the bucket capacity.

This is for your information and necessary action."

He submits, there should be interference. Not only is the contract silent on imposition of penalty but also the transport authority did not allow installation of true load system.

3. Mr. Das, learned senior advocate appears on behalf of MCL and draws attention to, inter alia, clause-13 in the Special Terms and Conditions, which provides for the company to recover loss on account of, amongst others, equipments of contractor, value of such loss as assessed by

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the company to be recovered from the contractors bill/security deposits. He also refers to clause-12 in the General Terms and Conditions to submit, it was incumbent upon petitioner to seek settlement of disputes in terms thereon. He relies on judgment of the Supreme Court in Mahanadi Coalfields Ltd. V. Dhansar Engg. Co. (P) Ltd. reported in (2016) 10 Supreme Court Cases 571, paragraph-23, wherefrom following passage is extracted and reproduced below :-

"23. ..... It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightaway approach the High Court by way of writ petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impressible."

4. Going by what was said in Mahanadi Coalfields Limited (supra) there appears to be some similarity between this case and the case decided. Opposite parties took the decision without reference to petitioner. It is not necessary to adjudicate whether or not such could be done under authority of clause-13 in the Special Terms and Conditions, relied upon by Mr. Dash. What is important is that clause-12 of the

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General Conditions of Contract provide for a mechanism for settlement of dispute.

5. It is clear that petitioner disputes the demand of under loading charges. It must seek redressal in terms of provisions in clause-12 of the general conditions.

6. It appears from order-sheet, by order dated 13th June, 2017 interim measure was directed restraining effect being given to the penalty imposed on petitioner. That direction is extended to continue for six weeks from date, for petitioner to approach for settlement of the dispute.

7. The writ petition is disposed of.

(Arindam Sinha) Judge

Prasant