NAMITA PAUL Vs. FOOD CORPORATION OF INDIA

JUDGEMENT

(1.) By means of this writ petition, the petitioner has urged this court for quashing the letter No.G.12/NEFR/MOVT/DC/Agt/Part/09/14597 dtd. 22/12/2015 issued by the respondent No.2, the General Manager, Food Corporation of India, North East Frontier Region, which is the final order passed in terms of the judgment dtd. 27/2/2015 delivered in W.P.(C) No.79 of 2010. By the said order, the respondent No.2 has laid down the details of the performance of the petitioner putting FCI to continuous financial loss and injury in terms of demurrage. It has been further observed that the said loss suffered by FCI in the form of demurrage for under-performance of the contract awarded to the petitioner by the office letter No.Cont.9/NEFR/TC/CHNG-AGT/2008 dtd. 12/7/2010 will be recouped by the deducting the amount from the pending bills of the petitioner. In relation to contemplation of such deduction, the security deposit to the extent of Rs.32,47,763.00 has not been refunded in terms of the contract relating to the order of engagement No.Cont.9/NEFR/TC/CHNG-AGT/2008 dtd. 17/11/2008 with interest.

(2.) There is no dispute that the respondent No.2 floated notice inviting tender (NIT) dtd. 8/8/2008 [Annexure-1 to the writ petition] for engaging the transport contractor on regular basis for a period of two years, inter alia, for transportation of food grains/sugar/allied materials from railway Siding, FSD, Changsari/CWC to FSD Amingaon/RH, FSD, Guwahati to Godown Complex Agartala. The petitioner became the successful tenderer and by the letter dtd. 17/11/2018 [Annexure-2 to the writ petition], the petitioner was given the work order for the said transportation. In terms of the condition, the petitioner had deposited Rs.27,00,000.00 to the respondents as 50% of the total security deposit. Total security deposit that was agreed to be maintained by the petitioner was quantified at Rs.54,00,000.00. The remainder of the security deposit was agreed to and directed to be deducted from the bills of the petitioner. The petitioner commenced execution of the work from 29/11/2008 and according to her, duly completed the same. It was agreed that if for any reason, unloading of goods from railway wagon is delayed beyond stipulated period, the demurrages/wharfage charges as per railway rules have to be initially paid by the respondents. The delay in unloading from the wagon and clearing the wagons is caused for various reasons. The causes sometimes occur beyond the control of the contractor. Clause-12(a) of the agreement as entered between the petitioner and the respondents for the said transportation lays down that the contractor shall be liable for all costs, damages, demurrages, wharfages, forfeiture of wagon, registration fees, charges and expenses suffered or incurred by the Corporation due to the contractor's negligence and un-workman like performance of any services under the contract or breach of any terms thereof or their failure to carry out the work with a view to avoid incurrence of demurrage etc. and for all damages or losses, occasioned to FCI due to any act, whether negligent or otherwise, of the contractor/s themselves or their employees. The decision of the General Manager, FCI regarding such failure of the contractors and their liability for the losses, etc. suffered by Corporation shall be final and binding on the contractors.

(3.) According to the petitioner in most of the cases, delay in clearing the goods had occurred due to reasons beyond the control of the contractors but the respondent No.3 had started deduction of the amounts on account of railway demurrage from the bills of the contractors [the petitioner herein] without determining as to whether the demurrage was charged for the delay on the part of the contractor or for the delay beyond the control of the contractor in violation of Clause 12(a) as referred before. It can easily be gathered from the said Clause 12(a), that if any delay in clearing wagons had taken place for reasons beyond the control of the petitioner, the petitioner would not be liable to compensate the demurrage/wharfage. Due to intervention by the Gauhati High Court in the case of M/s. Bulbul Enterprise v. FCI and Others reported in (2000) 2 GLR 537, the respondents could not succeed in making deductions from the running bills relating to the transportation contracts towards railway demurrage/wharfage charges. The petitioner has seriously asserted that the respondent No.3 without placing any railway demurrage bills and without determining the reason for delay, resulting in accrual of demurrage charges had deducted a total sum of Rs.32,47,763.00 from the bills of the petitioner. Such deduction is arbitrary on account of railway demurrage from 14 bills of the petitioner. Under the said contract, the respondents do not have any right to deduct any money from the bills of the petitioner as compensation without determining as to whether any compensation was legally payable to the respondents by the petitioner or not. Even the respondents cannot deduct any sum from the running bills of the petitioner. In this regard, the petitioner has made reference to her earlier writ petition being WP(C)No.79 of 2010 which was instituted in this court on 30/7/2012 for directing the respondents to refund the petition a sum of Rs.32,47,763.00 which amount was deducted illegally as purported railway demurrage charges from the bills of the petitioner for transportation, loading and unloading, handling of food-grains, sugar and allied materials in terms of the tender notice dtd. 8/8/2008 [Annexure-1 to this writ petition] and also for directing the respondents not to deduct any amount from the bills of the petitioner for demurrage charges without finally ascertaining the liability of the petitioner for payment as per the terms of the contract. The respondents had contested that writ petition.