MINERALS AND METAL TRADING CORPORATION OF INDIA NEW DELHI Vs. AGARWAL GENERAL ENGINEERING WORKS PVT LTD
LAWS(RAJ)-2008-1-35
HIGH COURT OF RAJASTHAN (FROM: JAIPUR)
Decided on January 16,2008

MINERALS AND METAL TRADING CORPORATION OF INDIA NEW DELHI Appellant
VERSUS
AGARWAL GENERAL ENGINEERING WORKS PVT LTD Respondents


Referred Judgements :-

OIL AND NATURAL GAS COMMISSION VS. UTPAL KUMAR BASU [REFERRED TO]


JUDGEMENT

S. K. SHARMA, J. - (1.)THE appellant Minerals and Metal Trading Corporation of India Limited (in short `mmtc') and its officers filed the present appeal challenging the order of learned Single Judge dated November 30, 1993 whereby the appellants were directed to refund Rs. One lac and fifty thousand with interest @ 17. 5% p. a. with effect from May 24, 1984 relating to sale note dated ECI/22 and further delivering 7 MT of aluminium ingots to the respondent company at the prevailing rate as on May 8, 1984.
(2.)THE controversy in the present matter is with regard to supply of 50 MT imported aluminium to the respondent M/s. Agarwal General Engineering Work Ltd. (in short the `respondent company' ). THE respondent company is engaged in the manufacture of conductors required by the Electricity Board. THE aluminium ingots used in manufacture of the conductors were to be supplied by the appellant. Admittedly the MMTC appellant was required to supply aluminium in accordance with the allotment order No. 11/12/83/71 dated Feb. 2, 1984. THE sale note provided for delivery of goods at Bombay provided requisite financial arrangements were made in prescribed time. THE terms of the sale note were subsequently modified and the delivery was to be made at Calcutta instead of Bombay. THE respondent made financial arrangements by opening irrevocable letter of credit through the Bank of India. THE supply took some time as the respondent company did not supply the requisite C form. THE respondent company supplied unfilled prescribed forms to be filled in later on. THE respondent company alleged in the petition that the MMTC with its officers malafidely did not supply the material in time and sought to extract additional price from the respondent company. MMTC proceeded on the basis of the terms and conditions of the sale note which inter alia provided for charging price as prevailing on the date of delivery and on this basis MMTC wrote letter dated May 12, 1984 to the respondent company whether it was still prepare to purchase the required ingots at the increased price and to confirm the same in writing. MMTC vide letter dated April 7, 1984 requested the respondent company to confirm whether it was prepared to lift the material from Calcutta. In response the respondent company initially communicated its inability to lift the material from Calcutta as it was not full truck load and supply was requested from Jaipur Depot. THE respondent company sought cancellation of allotment of 8 MT and requested for refund of its deposit of Rs. 1. 50 lacs. Vide letter dated June 13, 1984 the Asstt. Divisional Manager Jaipur Depot demanded a sum of Rs. 1,41,493. 42 with interest @ 17. 5% w. e. f. May 9, 1984 due to the Calcutta office. MMTC submitted that issue of outstanding of Rs. 1,41,493 arisen due to increase in price of aluminum ingots.
Mmtc filed detailed reply to the writ petition. Mmtc raised preliminary objection regarding maintainability of the writ petition on the ground of territorial jurisdiction. Learned Single Judge overruled the objection and took the view that Article 226 grants power for issue of writs for enforcement of writs other than fundamental writs whenever statutory authorities and instrumentalities are involved. In the reply it was specifically mentioned in reply to para 5 that on May 9, 1984 the bill for enhancement of aluminum price was adopted in Lok Sabha and the Government of India also increased the price effective from May 9, 1984. The respondent company lifted the material on May 9, 1984 when the price increase became effective. Mmtc adjusted the said enhanced differential price from the money already deposited by the allottee against sale note No. ECI 22 after giving due intimation to the respondent company. It was submitted by the Mmtc that it is wrong on the part of the respondent company to say that demand of additional price prevailing on May 9, 1984 cannot be made by Mmtc.

A look at the writ petition filed by the respondent company demonstrates that in para 35 it was specifically pleaded that Jaipur office of MMTC withheld the amount of Rs. 1,50,000/ -. The MMTC, in the reply to the writ petition averred in para 17 that ``withholding of Rs. 1,50,000/- by the Jaipur Office was perfectly proper in the facts and circumstances of the case.

The admitted facts before the learned Single Judge were that rupees ten lacs and 1. 5 lacs were deposited and received by the MMTC towards two different sale notes ECI/36 and ECI/22. Against sale note ECI/22 no aluminium ingots were delivered and Rs. 1. 5 lacs deposited under sale note ECI/22 were withheld by MMTC.

It was canvassed by the learned counsel for MMTC that the writ petition was not maintainable on the ground that learned Single Judge had no territorial jurisdiction in view of general conditions of sale note and further that for breach of contractual obligations if any, writ jurisdiction could not be involved.

(3.)LEARNED Single Judge considered the submissions of learned counsel in detail and held that the rights of the people should not be put into watertight compartment and it should remain flexible to meet the requirements of various circumstances. LEARNED Judge also observed that a petition under Article 226 could be presented before any of the High Court within whose jurisdiction, the cause of action in respect of which reliefs is sought has arisen, wholly or in part, in view of insertion of the clause (2) by the 42nd Amendment Act, to Article 226.
We have pondered over the submissions advanced before us and scanned the material on record as well as the case law placed for our perusal.

The ratio indicated in Oil and Natural Gas Commission vs. Utpal Kumar Basu and others (1994) 4 SCC 711 on which the reliance was placed by the learned counsel for the appellants is not applicable to the facts of this case. In Oil and Natural Gas Commission vs. Utpal Kumar Basu (supra) there was no averment in the writ petition that the part of cause of action arose within the jurisdiction of the Calcutta High Court. Their Lordships of the Supreme Court in these circumstances indicated in para 8 that even if the averments of the writ petition are taken as true, it could not be said that a part of the cause of action arose within the jurisdiction of Calcutta High Court. It was further observed that the advertisement itself mentioned that the tenders ought to have been submitted to EIL at New Delhi and those were to be scrutinised at New Delhi and final decision whether or not to award the contract to the tenderer had to be taken at New Delhi.



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