Shri Abhijit Paul vs Food Corporation Of India
2021 Latest Caselaw 9 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                             W.A. No.186/2020

Shri Abhijit Paul, S/O. Sri Swapan Kumar Paul, resident of B.K. Road,
Banamalipur, Agartala, P.S.-East Agartala, District:- West Tripura.
                                                            -----Appellant(s)
                                    Versus

1. Food Corporation of India, represented by Managing Director, Head
Office at 16-20 Barkhamba Lane, New Delhi-110001.
2. The General Manager (R), Food Corporation of India, Mawlai-Mawroh,
Golf Link, Shillong, Meghalaya.
3. The Area Manager, Food Corporation of India, Colonel Chowmuhani,
Agartala, P.S.-West Agartala, District:- West Tripura.
                                                       -----Respondent(s)

For Appellant(s)                   : Mr. Raju Datta, Advocate,
                                     Mr. Kundan Pandey, Advocate.
For Respondent(s)                  : Mr. Arijit Bhowmik, Advocate,
                                     Mr. Ankan Tilak Paul, Advocate.

        HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
         HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

       Date of hearing and judgment : 4th January, 2021.

       Whether fit for reporting         : NO.

                       JUDGMENT & ORDER (ORAL)

(Akil Kureshi, C.J.)

This appeal is filed by the original petitioner to challenge the

judgment of the learned Single Judge dated 25.11.2019 passed in WP(C)

No.719 of 2019.

2. The Food Corporation of India had awarded a contract to the

petitioner for transportation of food grains from railway wagons to the

godowns of the corporation. In the process of execution of this contract

disputes arose between the parties. According to the Food Corporation of

India on account of default and defects on part of the contractor the

movement of goods was not satisfactory as per the terms of the contract.

Invoking the clauses (x) and (xii) of the contract the corporation recovered

certain amounts on the running bills of the contractor. This action the

contractor had challenged in the writ petition. The learned Single Judge

noticed that the agreement contained a dispute resolution mechanism under

which in case of a dispute arising, the same would be referred to dispute/

grievance redressal committee constituted for such purpose. If after the

decision of the committee disputes remain, the same would have to be

determined by a civil Court. The learned Single Judge, therefore, while

refusing to entertain the writ petition, required the parties to follow such

dispute resolution mechanism and thereafter their civil remedies.

3. Having heard learned counsel for the parties, we do not find

that the learned Single Judge has committed any error. Intrinsically the

disputes arise out of contractual relations and had a strong element of

disputed questions of facts. Whether the contractor had committed any

breach or default so as to enable the Food Corporation of India to recover

any amount by way of damages from the contractor would be essentially a

question of fact. In a writ petition such disputed questions would ordinarily

not be gone into.

4. Learned counsel for the petitioner, however, placed heavy

reliance on the decision of Division Bench of this Court dated 03.10.2016 in

W.A. No.25 of 2016 and connected appeals in which while confirming the

decision of the learned Single Judge, it was held that in absence of any

clause permitting the corporation to recover demurrages the action of the

corporation to do so was impermissible. Counsel pointed out that SLP

against the said decision was also dismissed by the Supreme Court.

However, in the present case, we do not find direct application of the

decision of this Court noted above. Whether the corporation was entitled to

recover the alleged damages from the contractor in terms of clauses (x) and

(xii) of the agreement will also be a subject matter of the dispute resolution

mechanism. If after the committee gives its verdict the grievances of the

petitioner still survive, as provided by the learned Single Judge it is always

open for him to take recourse to civil proceedings.

5. In the result, appeal is dismissed.

6. At this stage, learned counsel Mr. Arijit Bhowmik for the Food

Corporation of India submitted that after the learned Single Judge disposed

of the writ petitions the committee had issued a notice to the petitioner.

Since the petitioner did not appear before the committee, an ex parte order

was passed. In view of such developments, it is further provided that if the

petitioner appears before the said committee within a period of four weeks

from today, raising the dispute about the recoveries, the committee shall take

a fresh decision after granting an opportunity of hearing to the petitioner.

For such purpose, the said order dated 16.10.2020 is set aside.

     (S.G. CHATTOPADHYAY), J                     (AKIL KURESHI), CJ




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