S.Tirupathaiah, vs The Singareni Collieries Company ...
2024 Latest Caselaw 3733 Tel

Telangana High Court

S.Tirupathaiah, vs The Singareni Collieries Company ... on 10 September, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.22277 OF 2015

ORDER:

Heard Sri K. Vasudeva Reddy, learned counsel

appearing on behalf of the petitioner and Sri P. Sri

Harsha Reddy, learned Standing Counsel for Singareni

Collieries appearing on behalf of respondent Nos.1 to 3.

2. The petitioner approached the Court seeking

prayer as under:

" ... to issue a writ or order or direction especially one in the nature of Writ of Mandamus :

(i) to declare the action of the respondents in forfeiting the Security Deposit/EMD amount of Rs.5,00,000/- and FSD amount of Rs.50,000/- towards the contract executed by the petitioner in terms of work order No. 7600003245, dated 18-05-2010 issued by the 2nd respondent as illegal and arbitrary and set aside the Proceeding No.CRP/CMC/CT/C14090449/9586, dated :

05-02-2013 and consequential Proceeding No. CRP/CMC/C1409O0449, dated 13-01-2015 issued by the 3rd respondent,

(ii) consequently direct the respondents to release the petitioner's Security Deposit/EMD amount of Rs.5,00,000/- and FSD amount of Rs.50,000/- pursuant

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to the work order No.7600003245, dt 18-05-2010 issued by the 2nd respondent

(iii) and pass such other order orders as the Hon'ble Court may deem fit and proper in the circumstances of the case".

3. It is the specific case of the petitioner that the

petitioner was assigned contract for excavation, loading

transportation and delivery of sand from Godawari river to

KTK-I Incline for a period of two years in the year 2010. As

per the work order, bills were to be released for every 10

days. However, the respondents have not released the bills

even after lapse of three months and though the petitioner

made a representation to the respondents on 21.02.2011, the

respondents failed to release any bills for the period from

01.04.2011 to 03.06.2011. Aggrieved by the same, the

petitioner stopped supplying the material to the respondents.

As a result, the respondents forfeited the Security

Deposit/EMD of Rs.5,00,000/- and FSD amount of

Rs.50,000/-. Aggrieved by the action of the respondents, the

present writ petition is filed.

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4. Counter affidavit has been filed on behalf of the

respondents particularly relying on para Nos.9, 10 and

15, extracted hereunder:

"9. In reply to paras 4 & 5, it is submitted that as per the Order dated 18-5-2010, the petitioner has to supply of 5,70,000/- CuM Sand from Kurudpally Sand Quarry of Godavari River of KTK.1 Incline of the Respondent Company. It is submitted that the performance of the petitioner in supplying the sand during the contractual period of two years started from 28.06.2010, is as follows:

a) Quantity of Sand warded: 5,70,000 CuM

b) Sand supplied form quarry to Bunkers : 75,732.241 Cum

c) Sand supplied from quarry to Yard : 45,943.059 Cum

d) Total Sand supplied to Bunkers & Yard : 1,21,675.300 CuM

It can be seen from the above that during the contractual period of two years started from 28-06-2010 and ended by 27-06-2012, the petitioner has supplied only 1,21,675.3 CuM of sand as against the awarded quantity of 5,70,000 CuM which is just 21% of the awarded quantity.

"10. It is submitted that the representations submitted by the petitioner for refund of EMD and FSD amounts, were taken into consideration and after critically

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examining overall circumstances including reasons submitted by petitioner, the Respondent Company came to a conclusion that the forfeiture of Security Deposit Amount of Rs.5,00,000/- and FSD amount of Rs.50,000/- in addition to levying of penalties as per terms of the order dated 18.05.2010 is appropriate and justified and accordingly a reasoned order was issued to the petitioner vide No.CRP/CME/CT/C1409O0449/9586, dated 5-2-2013 intimating the forfeiture of EMD and FSD amounts in addition to levying of penalties as per the terms and conditions of the order dated 18.05.2010. The relevant clauses of the terms and conditions of the order dated 18.5.2010 are as under:

"4. The contractor should deposit a sum of Rs.50,000/- (Rupees Fifty thousand only) in the office of Chief GM (purchase), towards as further security deposit (by Demand Draft only) within two weeks from the date of award of the work. The EMD of Rs.5,00,000/- will be converted into Security Deposit. These deposits will bear no interest and the same will be refunded only after 2 months from the date of expiry of the contract period and on satisfactory completion of the work."

"18. If the contractor fails to fulfill the contractual obligations and the transport work is stopped due to failure on the part of the contractor, the security deposit and the EMD amounts will be forfeited and also the contract will be terminated. In case of the work pertaining to transportation of sand, in addition to the

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EMD and Security deposit, the balance 5% held by the company will also be forfeited. Further in case the said amounts are not sufficient to meet the expenditure for engaging other agencies, such additional expenditure, including that on account of publishing the fresh notification and the higher rate, if any, payable to another contractor, will be deducted from the bills of other contracts, if any, of the defaulted contractor."

It is submitted that the reasons stated by the Petitioner for non-supply of required sand, such as Sakala Janula Samme, Medaram Sammakka Sarakka Jatara; Pranahita Pushkara Utsavalu and Mahasivaratri Utsavalu at Kaleswaram and extremists bandh calls etc., have no relevance and no hurdle for execution of contract work. It is submitted that the contention of the petitioner that any contract will always be subject to the natural calamities and circumstances beyond the control of any individual, is not correct since the reasons as stated by the petitioner have been critically examined and thereafter only as per the terms and conditions of the Order, a decision was taken for forfeiture of EMD and FSD amounts the decision so taken by the Respondent Company, is justified.

15. It is submitted that the writ petition itself is not maintainable at the outset and is liable to be dismissed in limini. It is submitted that clause 30 of the said contract/work order is extracted hereunder "In all cases of disputes, the decision of the company shall be

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final. Failing this the matter will be referred to Civil Court. The courts of Kothagudem (Khammam District) in the State of Andhra Pradesh only shall have jurisdiction to deal with and decide any legal matter or dispute whatsoever arising out of this contract including disputes arising on forfeiture of EMD and Security Deposit". As per this clause if there is any dispute and whatsoever nature the Civil Court at Kothagudem Khammam will have jurisdiction to deal with and this also includes disputes arising on forfeiture of EMD and Security Deposit. The terms of the contract are agreed by both the parties to the contract and have entered into. Hence the terms of the contract are binding on both the parties, and as such the petitioner is bound by Clause 30 of the said contract. The petitioner has to approach the competent Civil Court as per this clause and the writ petition is not maintainable in view of caluse above said. The Hon'ble Apex Court and also this Hon'ble Court in a catena of decisions held that the writ petition is not maintainable in contractual matters and for the enforcement of terms of contract between the parties".

5. As per the observations of the Apex Court in

judgment dated 20.04.2021 reported in (2021) 6 SCC

771 in M/s. Radhakrishnan Industries Vs. State of

Himachal Pradesh, which referred to the Judgment of

the Apex Court in Whirlpool Corporation Vs. Registrar

of Trade Marks reported in (1998) 8 SCC 1 and the said

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view having been reiterated in a recent full Bench

judgment reported in 2021 SCC Online SC 801 in

"Magadh Sugar & Energy Ltd. Vs. State of Bihar and

others". The principles governing the exercise of writ

jurisdiction by the High Court in the presence of an

alternate remedy had been summarized in the said

Judgment at para 28 and the same is extracted

hereunder:

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

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(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

This Court opines that the present case falls under 28(ii)

and (v) and first part of (vi) of the above referred Judgment

of the Apex Court.

6. Taking into consideration :

i) The aforesaid facts and circumstances of the case,

ii) The observations of the Apex Court in the judgment referred to and extracted above,

iii) The submissions put forth by the learned counsel appearing on behalf of the petitioner and the learned Standing Counsel appearing on behalf of the respondents,

(iv) Duly taking into consideration the averments made at para Nos. 9, 10 and 15 of the of the counter

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affidavit filed on behalf of the respondents (referred to and extracted above),

(v) The writ petition is disposed of giving liberty to

the petitioner to approach the competent Civil Court for

the relief prayed for in the present writ petition since,

petitioner has a remedy to approach the competent civil

court as per clause 30 of the subject contract entered

into between the petitioner and the respondent

company, and since disputed questions of facts cannot

be gone into in writ petition. However, there shall be

no order as to costs.

Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

___________________________ MRS. JUSTICE SUREPALLI NANDA

10.09.2024

SKJ