EAST CENTRAL RAILWAY & Ors. v. M/S SHANTI STEELS

INTERNATIONAL, A PROPRIETARY CONCERN HAVING ITS PLACE OF BUSINESS AT EXHIBITION ROAD, HARI OM APARTMENT, 202, 'B' BLOCK, PATNA-1 ITS PROPRIETOR AMIT KUMAR DHANDHANIA, S/O SHRI SAJJAN KUMAR DHANDHANIA, R/O 202, HARI OM APARTMENT, EXHIBITION RAOD, P.S. GANDHI MAIDAN, DISTT.- PATNA [INDIA] null THROUGH With LPA No.1476 of 2009 1. EAST CENTRAL RAILWAY THROUGH ITS GENERAL MANAGER, HAJIPUR, DISTT. - VAISHALI

2. CONTROLLER OF STORES, EAST CENTRAL RAILWAY, BISCOMAUN BHAWAN, PATNA

3. CHIEF MATERIAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR, DISTT. - VAISHALI

4. DEPUTY MATERIAL MANAGER, EAST CENTRAL RAILWAY, SAMASTIPUR, BIHAR Versus M/S SHANTI STEELS, A PROPRIETARY CONCERN HAVING ITS PLACE OF BUSINESS AT GHAITKAIYA 2 ROAD, P.S. BHARAMPURA, BAIRIYA, DISTT.- MUZAFFARPUR THROUGH ITS PROPRIETOR AMAR KUMAR AGARWAL, S/O SHRI SAJJAN KUMAR AGARWAL, R/O 202, HARI OM APARTMENT, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTT.- PATNA With LPA No.1489 of 2009 1. EAST CENTRAL RAILWAY THROUGH ITS GENERAL MANAGER, HAJIPUR

2. CONTROLLER OF STORES, EAST CENTRAL RAILWAY, BISCOMAUN BHAWAN, PATNA CHIEF MATERIAL MANAGER

3. EAST CENTRAL

4. RAILWAY, HAJIPUR DEPUTY MTERIAL MANAGER, EAST CENTRAL RAILWAY, SAMASTIPUR, BIHAR Versus M/S SHANTI STEELS A PROPRIETARY CONCERN HAVING ITS PLACE OF BUSINESS AT GHAITKAIYA ROAD, DISTT- MUZAFFARPUR, THROUGH TIS PROPRIETOR AMAR KUAMR AGARWAL, SON OF SHRI SAJJAN KUMAR AGARWAL, RESIDENT OF 202 HARI OM APARTMENT, EXHIBITION ROAD, P.S- GANDHI MAIDAN, DISTT- PATNA P.S-BHARAMPURA, BAIRIYA, With LPA No.1582 of 2009 1. EAST CENTRAL RAILWAY THROUGH ITS GENERAL MANAGER, HAJIPUR, DISTT- VAISHALI

2. CONTROLLER OF STORES, EAST CENTRAL RAILWAY, BISCOMAUN BHAWAN, PATNA

3. CHIEF MATERIAL MANAGER, EAST CENTRAL RAILWAY HAJIPUR, DISTT- VAISHALI

4. DEPUTY MATERIAL MANAGER, null EAST CENTRAL RAILWAY, SAMASTIPUR, BIHAR Versus M/S SINGH STEELS A PARTNERSHIP FIRM HAVING ITS PLACE OF BUSINESS AT BHAKURA, LOHAR PAHARA, ARA, P.S ARA, BAIRIYA, DISTT- ARRAH (BIHAR) AUTHORIZED REPRESENTATIVE AMAR KUMAR AGARWAL SON OF SHRI SAJJAN KUMAR AGARWAL, RESIDENT OF 202, HARI OM APARTMENT, EXHIBITION ROAD, P.S- GANDHI MAIDAN, DISTT- PATNA THROUGH ITS With LPA No.1548 of 2009 1. EAST CENTRAL RAILWAY THROUGH ITS GENERAL MANAGER HAIPUR, DISTT- VAISHALI

2. CONTRLLER OF STORES, EAST CENTRAL RAILWAY, BISCOMAUN BHAWAN, PATNA 3

3. CHIEF MMATERAL MANAGER, null EAT CENTRAL RAILWAY, HAJIPUR, DISTT- VAISHALI

4. DEPUTY MATERIAL MANAGER, EAST CENTRAL RAILWAY, SAMASTIPUR, BIHAR Versus M/S SINGHAL STEELS, A PROPRIETARY CONCERN ITS OFFICE AT CHAKNUR ROAD, HAVING DHARAMPUR, DISTT- SAMASTIPUR THROUGH ITS AUTHORISED REPRESENTATIVE SOHAIL AHMED, SON OF MD. YUSUF R/O CHAKNUR ROAD, DHARAMPUR, P.O AND PS- SAMSTIPUR, DISTT- SAMASTIPUR ………… For the Appellants : Mr. Siddharth Prasad, Advocate For the Respondents (Railways) : Mr. S.D. Sanjay, Advocate, Mr. Akash Chaturvedi, Advocate. ----------- 04/

22.12.2009 Heard learned counsel for the appellants and learned counsel for the respondents in all these appeals. A perusal of the common judgment by the learned Single Judge discloses that all the legal objections raised before us against entertaining the writ petitions have been considered in the light of various authorities including judgments of the Supreme Court and then the writ Court decided in favour of the writ petitioners that they should get back the entire consideration money which they have deposited within the stipulated time to get delivery of the auctioned materials. Although the writ Court has held that Clause 7.1 of the Agreement denying any claim being raised against the Railways for interest is unconscionable and arbitrary, it has not granted any interest to the writ 4 petitioners and has relegated to pursue remedy for interest through arbitration. Learned counsel for the appellants submitted that the judgments of the Supreme Court have not been properly appreciated by the writ Court other wise it would have come to the conclusion that in a contract matter where the agreement provides for arbitration, writ petition cannot be entertained. We have given anxious consideration to this issue also and in view of judgments of the Supreme Court including that in the case of ABL International Ltd. & Anr. Vs. Export Credit Guarantee Corporation of India & Ors. (2004) 3 SCC 553 as well as in the case of Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. (2003) 2 SCC 107, it cannot be held that writ jurisdiction is totally ousted on account of availability of remedy of arbitration. The judgments of the Apex Court indicate that remedy of arbitration stands on similar footing as the remedy through Civil Court which should be asked to be resorted to in appropriate cases. But the power of judicial review of the High Court under Article 226 is still preserved for being exercised in appropriate cases. In the present cases admittedly 50th day from the date of auction was the time limit by which auction 5 materials were required to be delivered to the successful bidders once they deposited the bid amount. The materials on record show that due to non-availability of competent Railway officials as well as due to accumulation of water on the road or in the area concerned, the Railways could not deliver the auction articles to the writ petitioners within the stipulated time of 50 days. The only controversy is that after 50 days, according to the Railways the successful bidders, as per prevailing practice, were required to make a request to the competent authority for extending the time period for delivery of auction materials. On the ground that no such request was made, delivery was not given leading to filing of the writ petitions in the month of November, 2008. Although, the aforesaid stand in the counter affidavit of the Railways finds mention at some places but there is no categorical denial to the letters such as Annexure-8 series to C.W.J.C. No. 16359 of 2008 which go to show that from

14.8.2008 onwards requests and reminders were made to Railway authorities for fixing further time for delivery of the materials without charging for any ground rent. In our view the authorities of the Railways cannot be absolved from their responsibility in causing delay in delivery of the auction materials. They further sat tight over the matter forcing the successful bidders to 6 claim for refund of their money through writ petitions. Now when the refund has been ordered by the writ Court without any interest, we are of the opinion that there is no good ground to interfere with such judgment. We want to make it clear that there was no disputed issue of facts arising for deciding the matter at hand and hence it was one of those appropriate cases where the relief has been granted in accordance with law, justice and equity and it does not require any interference by us. In view of the aforesaid discussions, these appeals are dismissed. (Shiva Kirti Singh, ACJ.) S.Sb/- (Jyoti Saran, J.)