High Court · 2012

2. We have heard Mrs. B Goyal, learned counsel for the petitioners and Mr MZ Ahmed, learned senior counsel for the respondent Coal India Limited an d its functionaries.

3. The pleaded version of the petitioners is that in response to th e Notification No. SC/47/319 dated 5.5.2008 issued by the North-Eastern Coal Fi elds, Coal India Limited, Black Diamond Towers, Guwahati, the respondent No.2 he rein inviting offers for booking of coal by rail through online spot e-Auction, the petitioners along with others responded thereto and on the conclusion of the process were empanelled at serial No. 9 of the eleven successful bidders. Accor ding to the petitioners, sale confirmation letter was also issued in their favou r and they accordingly deposited the value of the coal and complied as well with all other necessary formalities. They have averred that while they were waiting for their turn for placement of their indents and dispatch of coal in order of seniority as per the Terms & Conditions of Sot e-Auction Scheme, 2007, they came across a notice dated 25.6.2008 issued by the respondent No.2 to the effect tha t the buyers who had booked their orders through e-Auction had been objecting to the placement of indents for despatch and that those who were hesitant to lift coal would be treated defaulters and as a consequence Clause-9.2 and 9.3 of the Terms & Conditions of Spot e-Auction Scheme, 2007 would be invoked. The petitio ners have asserted that they immediately thereafter vide their letter dated 27.6 .2008 addressed to the Sales Manager, Coal India Limited, North-Eastern Coal Fie lds, Guwahati intimated the said authority that they have no objection if their rake is loaded strictly as per the priority number allotted to them at the time of E-auction. Request was also made to inform them about the time frame for the above purpose after the dispatch of the 7th rake from the concerned mine. As ev en thereafter they on 30.6.2008 came to learn that indents had been registered i n favour of the buyers who were below them in order of placement in the panel, t hey represented before the authorities of the North-Eastern Coal Fields, Coal In dia Limited, Margherita who did not divulge any reason therefor. Instead, the re spondent Coal India Limited refunded the value of the coal to the petitioners. S ituated thus, they are before this Court for judicial intervention.

4. The respondents in their affidavit-in-opposition in substance ha ve pleaded that in terms of Clause-7.5 of the Terms & Conditions of Spot E-Aucti on (for short, hereafter referred to as ’the Terms & Conditions’) the validity p eriod for seeking allotment of rakes in case of railway supplies was 45 days fro m the date of issue of consent by the North-Eastern Coal Fields which, in the pr esent case, expired on 1.7.2008. As the petitioners including other successful b idders had objected to the placement of indents in their favour when their turn had arrived according to their seniority in the panel, the notice dated 25.6.200 8 had to be issued indicating to them (successful bidders) the consequence of in vocation of Clause-9.1 and 9.2 of the Terms & Conditions in the face of their va cillation. While admitting about the receipt of the letter dated 27.6.2008 of th e petitioners, the respondents maintained that on 30.6.2008 the petitioner No.2 telephonically informed the respondent Company about their (petitioners) objecti on to the placement of indents in their favour due to heavy rainfall and, thus, on the application of Clause-9.2 of the Terms & Conditions the agreement ceased to subsist and the value of the coal was refunded to them. The petitioners in their affidavit-in-reply while reaffirming an 5. d reiterating their statements in the writ petition, denied to have intimated th e respondents of their objection or hesitation to lift their quota of coal.

6. The learned counsel for the parties have abided by their pleaded stands as summarized hereinabove. Mr Ahmed has also produced the relevant recor ds in original in endorsement of the stand of the respondents. The texts of the notice dated 25.6.2008 and the letter dated 27.

7. 6.2008 referred to hereinabove are quoted hereinbelow for ready reference: (cid:28) It is noted that the buyers who have booked their orders through e Auction vid e our notice No. SC/47/319 dated 05.05.2008 which was held on 16.05.2008, are o bjecting to placing of indents for dispatch. It is hereby informed that buyers w ho hesitate to lift coal shall be treated as defaulters, which will attract the evokement of Clause No. 9.2 & 9.3 of the Terms & Conditions of Spot e Auction Sc heme 2007. In such cases the orders will be treated as cancelled and the EMD/ Secur ity deposit shall be forfeited in addition to any other action deemed fit by the company as per the General Terms & Conditions of Spot e Auction. (cid:29). & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. (cid:28)Dear Sir, Please be informed that we have no objection if our rake is loaded strictly as p er the priority number allotted to us at the time of E-Auction. Please note the same and inform us as per the time frame fixed after the dispatc h of 7th rake from your mine so that we will arrange for the same. Thanking you. (cid:29).

8. nitive significance are extracted hereinbelow: Clauses-9.2 and 9.3 of the Terms & Conditions being also of defi (cid:28)9.2 If the successful bidders does not lift the booked quantity within the stip ulated validity period, the proportionate Security Deposit @ Rs. 200/- per Tonne (as converted from the EMD amount) for the unlifted quantity would be forfeited . Such forfeiture shall be made only if the balance Unlifted Quantity is equal or more than a Truck Load i.e. 10 tonnes. Such forfeiture, however, would not take place if North Eastern Coalfields has f ailed to offer full or part of the successful bid quantity within the validity p eriod. In such cases again, no forfeiture would take place if the balance quanti ty is less than a truck load/ rake load.

9.3 If the Buyer cancels the order/ Rake after booking, the EMD @ Rs. 200/- per tonne shall be forfeited for the rake cancelled. (cid:29).

9. That the validity period for seeking allotment of rake in case o f rail supplies was 45 days from the date of issue of consent by the North-Easte rn Coal Fields and that in the case in hand the same was to expire on 1.7.2008 i s undisputed. The petitioners have admitted the issuance of the notice dated 25. 6.2008. A perusal of the original records produced on behalf of the respondents would, however, disclose that the following endorsement had been made at the foo t of the letter dated 27.6.2008: (cid:28) As informed by Shri Sharmah over Tel. on 30/6/08 at 11.30 Am, Shri Guru Kirpa Associates (P) Ltd. has objected to place Indent due to heavy rain fall. Sd/- Illegible (cid:29)

10. Whereas this endorsement corroborates the pleaded stand of the r espondents, the petitioners have denied to have objected to the placement of the ir indent at any point of time. It is obvious that if the endorsement appearing on the body of the letter dated 27.6.2008 is authentic and acceptable, the impug ned action is unassailable. The above disclosure from the official records of th e respondents in conjunction with the rival pleadings gives rise to a disputed q uestion of fact. Neither is the writ Court equipped with judicially evolved para meters to resolve these irreconcilable factual orientations, nor is it advisable to embark upon a roving enquiry therefor. This is more so after a lapse of more than four years and in absence of any material on record to either doubt or rej ect the authenticity of the official records of the respondent Company or the ve racity of the endorsement appearing on the body of the letter dated 27.6.2008. A s referred to hereinabove, the respondent Company has refunded the value of the coal to the petitioners as deposited by them on the acceptance of their bid.

11. to interfere in the exercise of our power of judicial review. On a cumulative consideration of all above, we are not inclined

12. The petition lacks in merit and is dismissed. No costs.