The High Court · 2008
Case Details
1 IN THE HIGH COURT OF JHARKHAND RANCHI W.P. (C) No. 1044 of 2009 M/s. Mineral Traders & Engineers, Jharia, Dhanbad, through one of its partners namely Sanjeev Khanna ... ... Petitioner Versus 1. Central Coalfields Ltd., Ranchi 2. Chairman-Cum- Managing Director, Central Coalfields Ltd., Ranchi 3. General Manager (S & IC), Central Coalfields Ltd., Ranchi 4. General Manager, Central Coalfields Ltd., Kathara 5. M.S.T.C. Ltd. (A Government of India Enterprise) Kolkata 6. Regional Manager, M.S.T.C. Ltd. Kolkata ... 7. Upendra Singh ... ... ... ... ... Respondents
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE PRASHANT KUMAR ............ For the Petitioner For the Respondents : M/s Ritu Kumar, Prashant Kumar Singh, S.B.Deo, Vikash Kumar : M/s A.K. Das, Warda Khan 4/20.09.2013 This application has been filed for issuance of a writ and/or direction commanding the respondents to refund the amount of Rs. 2,10,743 and Rs. 9,00,000/- to the petitioner along with interest at the rate of 18% per annum and other monetary loss caused to the petitioner due to hindrance caused by the respondents in lifting of scrap sold to the petitioner. 2. It appears that respondents auctioned various scrap materials on 08.07.2008. It then appears that petitioner participated in the auction and successfully purchased scrap materials enumerated in the item Nos. 6/44 and 7/44 of Annexure-1. Thereafter petitioner paid Rs. 2,10,743 and Rs. 9,00,000/- through bank draft to the respondents. After receiving of aforesaid amount, Central Coalfields Ltd. vide letter dated 23.08.2008 issued delivery advice in favour of petitioner and asked the petitioner to take delivery of scrap materials within 30 days from the date of delivery advice. In the said delivery advice, it was mentioned that if any dispute and/or problem arose in lifting the scrap materials, it would be open to the petitioner to bring the same in the notice of Chief General Manager of the area. In the said delivery advice, it is also mentioned that in the event of failure on the part of petitioner in removing scrap materials within the time stipulated, C.C.L. reserves right to take action against the petitioner, as per the provisions of Clause-10 of the terms and conditions of E-Auction. 3. It is stated that some problem crop up at Kathara, where 2 scrap materials were lying. It is further stated that with a view to resolve aforesaid problem petitioner filed application on 14.10.2008 before Chief General Manager for extension of date of lifting. It appears that while said application of petitioner was pending, petitioner filed another application on 25.10.2008 stating therein that it does not want to lift scrap materials, thus, money deposited by it be returned. It then appears that on 11.11.2008, C.C.L. extended the period of lifting as requested by the petitioner vide letter dated 14th October 2008. Thereafter petitioner again by Annexure-13 requested the C.C.L. Authority to refund the money along with interest. By Annexure-14, C.C.L. Authority informed petitioner that inspite of several letters, petitioner had not lifted the scrap materials, therefore it should file an application for amendment of delivery advice. It then appears that on 05.12.2008, C.C.L. Authority again extended the period for lifting of scrap materials by two weeks. It appears that petitioner did not lift the scrap materials within the aforesaid stipulated period and filed present writ application for refund of money deposited. 4. It is submitted by Mrs. Ritu Kumar, learned counsel for the petitioner that her client filed an application before Chief General Manager, in which it enumerated various difficulties in lifting scrap materials, such as ill behaviour of the officers of C.C.L. and other anti social elements. But said representation of petitioner has not been
Decision
disposed of by the Chief General Manager, though, as per terms and conditions of delivery advice, he is bound to solve said problems. Accordingly, she submits that since local Officers of C.C.L. were putting hindrance in lifting of scrap materials, therefore, petitioner is entitled to get refund of the amount deposited by it. 5. Sri A.K. Das appearing on behalf of the C.C.L. submitted that as per Clause-10 of the notice of E-Auction, if the petitioner would not lift the scrap materials within the time stipulated, money deposited by him will automatically be forfeited and C.C.L. have right to dispose of the auctioned materials in any other manner. It is submitted that since the petitioner has not lifted the materials within the time stipulated, therefore, as per terms and conditions of contract, it has no right to get refund of the money. It is further submitted that grounds for refund of money are question of facts, which require to be proved by adducing evidence. Thus, question of facts cannot be decided in the writ jurisdiction. Accordingly, it is submitted that writ application filed by 3 the petitioner has no merit, therefore, liable to be dismissed. Sri A.K. Das submits that so far allegation against the C.C.L. employees and anti social element are concerned, it is clear from Annexure-9 itself that petitioner had approached D.I.G. Bokaro, thus, problem of law and order is being solved by the State Authority. 6. Having heard the submissions, I have gone through the record of case. Admittedly, petitioner succeeded in the auction for purchase of item Nos. 6/44 and 7/44 mentioned in the E-Auction notice. Thereafter petitioner deposited the amount and delivery advice issued in its favour. Petitioner was asked to lift the scrap materials within 30 days, but petitioner did not lift the same and had filed application before Chief General Manager C.C.L. for refund of amount. From perusal of delivery advice it is clear that if the petitioner will not lift the scrap materials within the time stipulated, it is open for the C.C.L. to take action against the petitioner according to the clause-10 of the terms and conditions of E-Auction notice. Clause-10 of the E- Auction notice reads as under:- 10) DEFAULT IN LIFTING : In case the whole or any part of the goods sold remain uncleared, even after the authorized period stated in the delivery schedule, the purchaser shall have no claim whatsoever on the goods remaining uncleared. It will be the sole discretion of the Principal to extend the lifting period with or without ground rent after expiry of the stipulated free lifting time depending on the merit of the case. In the event of the Principal not allowing any extension of lifting time, the sale of materials will be automatically cancelled and all the monies paid by the Bidder/Buyer will be automatically forfeited. The CCL shall have the right to dispose of such goods in any manner it likes. The purchaser will have no right whatsoever to any compensation if the lifting time is extended by the CCL, the ground rent will be same as applicable for delay in making the due payments to CCL. 7. In view of the aforesaid clause-10 of the terms and conditions of the E-Auction notice, it is clear that if the materials purchased would not be lifted within the time stipulated, the money paid by the buyer and/or bidder will automatically be forfeited. Thus, in view of clause-10 of the terms and conditions of the E-Auction, prima- facie it appears that petitioner is not entitled to get refund of the money deposited by it. However, it appears that petitioner made certain allegations against the C.C.L. Officers that they were putting hindrance in lifting the scrap materials with the help of anti social elements. 4 Aforesaid allegations require to be proved by adducing evidence before a competent Court. Said allegation if proved, petitioner may be entitled for refund in accordance with law. It is well settled that in the writ jurisdiction, this court cannot decide disputed question of fact. Under the aforesaid circumstance, prayer made by the petitioner cannot be granted. Accordingly, this writ application dismissed. However, I give liberty to the petitioner to file civil suit before a competent court for refund of the amount, if it so desire. Binit (Prashant Kumar, J.)