JUDGMENT The judgment of the Court was as follows :–– The petitioner No.2, Dhanraj Hari Prasad, is a registered partnership firm, (hereinafter referred to as the said firm), of which the petitioner No. 1 is one of the partners. In this Rule they have challenged orders dated April 3, 1972, June 3, 1972 and April 2, 1973, as wrongful, illegal, arbitrary and bad apart from contending them to be perverse. The particulars of those orders would be available hereafter. 2. It is an admitted fact that pursuant to an invitation of tender by the Director General of Supplies and Disposals (hereinafter referred to as the said Respondent No. 2), the said. firm submitted the necessary tender in respect of 10,000 pieces of Kit Bags of certain specifications @ Rs. 8.68 P. per piece, sales tax extra and on inter alia the following amongst other terms : (a) The Purchaser; Governor of Rajasthan. (b) Delivery; F.O.R Howrah. (c) Delivery within 10 weeks from the date of the order, (d) Payment; 95 per cent on proof of dispatch and the rest five per cent after receipt of the stores. (e) The Tender shall remain open for acceptance till 13th July, 1970. It is also an admitted fact that the date of acceptance of the said tender was extended by mutual consent, to August 13, 1970. There is also no dispute that on or about August 13, 1970, the concerned Assistant Director (Supplies), (hereinafter referred to as the said Respondent No. 4), accepted the tender of the said firm for and on behalf of the Governor of Rajasthan and consequent to such acceptance of the tender the State of Rajasthan, placed an order of 5000 pieces of Kit Bags on condition as appears from Annexure 'B', that the delivery to be effected within one month after receipt of formal acceptance of the tender. Thus, the delivery was to be effected on or by September 15, 1970. It has been stated by the petitioners that they received the said acceptance of tender within the jurisdiction of this Court and their place of business is at Calcutta on August 18, 1970 and they by their letters of August 21, 1970, September 14, 1970 and September 22, 1970, recorded their inability to effect the supply within the time as specified and asked for re-fixing the relevant date. Such demand for re-fixation of the date, was at first refused but thereafter, the said Respondent No.4. re-fixed the date of delivery on or by October 31, 1970. Such re-fixation, as appears was done for and on behalf of the President of India. It has been alleged by the petitioners that such re-fixation for and on behalf of the President of India was improper, as the acceptance of the tender was for and on behalf of the Governor of Rajasthan and as such it has also been contended that there was no concluded contract between the petitioner and the Government of Rajasthan and the subsequent re-fixation for and on behalf of the President of India should be deemed to be a separate contract or at least a counter offer, which was not accepted by them. 3. The plea as aforesaid appears to be without any substance because the petitioners themselves have asked for extension of dates of delivery of goods under the acceptance of tender dated August 13, 1970, which, as mentioned hereinbefore was agreed to, and the necessary extension was granted in the manner as mentioned above. It has of course been contended that those representations were made on misapprehension that a valid contract had come into existence. In the meantime, the said firm offered inspection of 1200 Kit Bags, which number the answering Respondents have stated to be 1500. Such inspection, according to the return to the Rule appears to have been taken on October 21, 1971 and as the goods were rejected as they were not according to the specification and satisfaction of the authorities concerned. 4. On such rejection, the said Respondent No.4 terminated and cancelled the acceptance of the tender in question and by a letter of June 3, 1972, a claim for a sum of Rs. 29,500/- was raised against the said firm towards extra expenses incurred on risk purchase against the subject in terms of clause 14(7) of the General Conditions of the contract, which is in the following terms: 14. 29,500/- was raised against the said firm towards extra expenses incurred on risk purchase against the subject in terms of clause 14(7) of the General Conditions of the contract, which is in the following terms: 14. Delivery: (1) … … … … … (2) … … … … … (3) … … … … … (4) … … … … … (5) … … … … … (6) … … … … … (7) Failure, and termination–– If the contractor fails to deliver the stores or any installment thereof within the period fixed for such delivery or at any time repudiates the contract before the expiry of such period, the, Secretary may without prejudice to the right of the Purchaser to recover damages for breach of the contract :–– (i) recover from the contractor as agreed liquidated damages and not by way of penalty a sum equivalent to 2% of the price of any stores which the contractor has failed to deliver within the period fixed for delivery in the schedule for each month or part of a month during which the delivery of such stores may be in arrears where delivery thereof is accepted after expiry of the aforesaid period, or (ii) purchase or authorize the purchase elsewhere without notice to the contractor, on the account and at the risk of the contractor of the stores not so delivered or others of a similar description (where stores exactly complying with particulars are not in the opinion of the Secretary, which shall be final, readily procurable) without canceling the contract in, respect of the installments not yet due for delivery, or (iii) cancel the contract or a portion thereof and if so desired purchase or authorize the purchase of the stores not 50 delivered or others of a similar description (where stores exactly complying with particulars are not in the opinion of the Secretary, which shall be final, readily procurable) at the risk and cost of the contractor. If the contractor had defaulted in the performance of the original contract, the purchaser shall have the right to ignore his tender for risk purchase even though the lowest. If the contractor had defaulted in the performance of the original contract, the purchaser shall have the right to ignore his tender for risk purchase even though the lowest. Where action is taken under sub-clause (ii) or sub-clause (iii) above, the contractor shall be liable for any loss which the purchaser may sustain on that account provided the purchase or, if there is an agreement to purchase, such agreement is made, in case of failure to deliver the stores within the period fixed for such delivery within six months from the date of such failure and in case of repudiation of the contract before the expiry of the aforesaid period of delivery, within six months from the date of cancellation of the contract. The contractor shall not be entitled to any gain on such purchase and the manner and method of such purchase shall be in the entire discretion of the Secretary. It shall not be necessary for the purchaser to serve a notice of such purchase on the contractor. (8) …………………………………………………………………………. (9) …………………………………………………………………………. and admittedly governs the contract in the instant case. Apart from the aforesaid clause of the said contract, the following are some of the terms : 18. Recovery of sums due : Whenever any claim for the payment of a sum of money arises out of or under the contract against the contractor, the purchaser shall be entitled to recover such sum by appropriating in whole or in part, the security, if any, deposited by the contractor, and for the purpose aforesaid, shall be entitled to sell and/or realize securities forming the whole or part of any such security deposit. In the event of the security being insufficient, the balance and if no security has been taken from the contractor, the entire sum recoverable shall be recovered by appropriating any sum then due or which at any time thereafter may become due to the contractor under the contract or any other contract with the purchaser or the Government or any person contracting through the Secretary, if such sum even be n0t sufficient to cover the full amount recoverable, the contractor shall on demand pay to the purchaser the balance remaining due. For the purpose of this clause, where the contractor is a partnership firm, the purchaser shall be entitled to recover such amount by appropriating in whole or in part any sum due to any partner of the firm whether in his individual capacity or otherwise. 19. .............................................................................................................................. 20. Laws Governing the contract (1) This contract shall be governed by the laws of India for the time being in force. (2) Irrespective of the place of delivery, the place of performance or place of payment under the contract, the contract shall be deemed to have been made at the place from which the acceptance of tender has been issued. (3) Jurisdiction of Courts :–– The courts of the place from where the acceptance of tender has been issued shall alone have jurisdiction to decide any dispute arising out of or in respect of the contract. (4) Marking of Stores :–– The marking of the stores must comply with the requirements of the laws relating to Merchandise Marks for the time being in force in India. which would be of relevant consideration in this Rule and on the basis of the submissions as made. It has further been stated by the said firm that on June 3, 1972, they duly objected to such action of the said Respondent No.4, contending such act to be unauthorized and without jurisdiction. But it has been stated that inspite of such objections, the Pay and Account Officer concerned (Respondent No.5), by his letter of April 2, 1973, informed the said firm that they have made adjustment of a sum of Rs.3,788/-, payable to the said firm under other Bills against the said claim of Rs. 29,500/-. 5. In their return to the Rule, the answering Respondents, apart from the contentions as mentioned hereinbefore, contended that the agreement in question was ultimately between the said firm and the Union of India for purchasing the contractual goods for and on behalf of the State of Rajasthan and as the Inspecting authority was the said Respondent No.2 and the Officers authorized in that behalf, the re-fixation as made by the said Respondent No.4 was valid and legal. It has also been contended that the contract in the instant case was a concluded one and that too in terms of the agreement as referred to hereinbefore and some of the terms whereof have been quoted above. It has also been contended that the contract in the instant case was a concluded one and that too in terms of the agreement as referred to hereinbefore and some of the terms whereof have been quoted above. It has also been stated that on the asking or at the request of the said firm, the necessary extension or re-fixation was made by the said Respondent No.4 and in fact the said firm has stated on the basis of such extension or re-fixation and as such on March 9, 1971, they offered inspection of the goods to be supplied and thereafter, on May 5, 1971 requested the said Respondent No.2 to advise the Inspecting Officer concerned to complete the necessary formalities at an early date so that they can duly dispatch the consignment. The said Respondents have further stated that for the supply of the balance quantity of goods, the said firm pleaded that due to non-availability of the specified quantity of raw materials, it was not possible for them to complete the manufacture and as such they asked for extension of the period of delivery for eight weeks more. It has also been contended by the Respondents that the said Respondent No.4 duly and with authority informed the said firm that time was the essence of the contract and the same having expired on November 20, 1971, and on the said firm's failure to adhere to such stipulation, the contract in question would be treated as cancelled on the risk of the said firm and the costs in respect of qualities not delivered in time, in exercise of the right conferred under clause 14(7) as quoted above, would go to the benefit of the purchaser, without prejudice to their other rights. In fact by the letter of June 3, 1972, the said Respondent No.4 informed the said firm that the purchaser would be entitled to recover from the said firm a sum of Rs. 29,500/- towards extra expenditure incurred in risk purchase under the said clause 14(7) and as such the said firm was required to pay the said sum on or by June 30, 1972. It has also been contended that the said firm by a letter dated June 30, 1972 informed the said Respondent No.3 that they have received the cancellation letter and also the direction to deposit the said sum of Rs. 29,500/- towards risk purchase. It has also been contended that the said firm by a letter dated June 30, 1972 informed the said Respondent No.3 that they have received the cancellation letter and also the direction to deposit the said sum of Rs. 29,500/- towards risk purchase. It has been contended by the Respondents that since the agreement was entered into between the parties at New Delhi, the cancellation was made there, so this Court will not have any territorial jurisdiction to entertain the petition in question and that too in view of clause 20(3) as quoted hereinbefore. It has been specifically contended that since the said clause 20(3) provides specific jurisdiction of the dispute being raised between the parties at New Delhi, so there is a specific ouster of the jurisdiction of this Court. That apart, it has also been contended that since under the terms of the agreement in question there was and has been other remedy open to the said firm, by way of reference to arbitration, this Court should not also interfere or entertain the petition in the instant case. It has further been contended that since the right, if any, is dependent or based on the agreement as aforesaid, so in this jurisdiction no interference should be made and that too when there is no allegations of malice or malafide intention in effecting the cancellation of the agreement in question. 6. It was contended on behalf of the petitioner by Mr. Mitra, who was followed by Mr. Roy, that the impugned and purported action of the Respondents to realize the claim from other Bills of the said firm was not only illegal and irregular but the same was void and unauthorized too. Such attempt, to have the claim adjusted was also contended to be contrary to the terms of the contract and in support of such contentions, reliance was placed on the determination of the Supreme Court in the case of (1) Union of India v. Raman Iron Foundry, AIR 1974 SC 1265 . Such attempt, to have the claim adjusted was also contended to be contrary to the terms of the contract and in support of such contentions, reliance was placed on the determination of the Supreme Court in the case of (1) Union of India v. Raman Iron Foundry, AIR 1974 SC 1265 . In that case, during the pendeney of an arbitration proceedings for determination of the mutual claims for damages arising out of a breach of certain contract to supply goods the contractor, apprehending that certain bills which had then become payable to him by the purchaser under other contracts, would be withheld and appropriated towards the amounts of damages claimed by the purchaser, applied for and obtained an interim injunction from the High Court restraining the purchaser from doing so under the relevant clause viz., clause 18 of the contract and the Supreme Court held that : "the High Court was justified in issuing the order of interim injunction which was clearly within its power under section 41(b) of the Arbitration Act because the claim for damages formed the subject matter of the arbitration proceedings and the Court would always say that until such claim is adjusted upon, the purchaser shall be restrained from recovering it by appropriating other amounts due to the contractor." Although such determination was made in a proceeding under the provisions of the Arbitration Act, it was submitted by the petitioner that the principles as enunciated would also be available and applicable in a proceeding under Article 226 of the Constitution of India, as in the instant case, and the more so when such determination was made on an interpretation of clause 18 of the present contract. The principles as laid down by the Supreme Court would certainly be binding in the instant case, if the proceeding itself is maintainable, which the Respondents have submitted to be not maintainable for the reasons as recorded hereinbefore. The principles as laid down by the Supreme Court would certainly be binding in the instant case, if the proceeding itself is maintainable, which the Respondents have submitted to be not maintainable for the reasons as recorded hereinbefore. The Respondents in fact, have specifically referred to clauses 20 and 24 of the said contract, particulars whereof have been quoted hereinbefore and submitted that not only by virtue of the said clause 20, this Court will lose its jurisdiction to entertain the petition and the Courts at Delhi will have such jurisdiction in view of the fact that the contract was entered into and completed there but because of clause 24, the said firm could go in an arbitration proceeding and could not come in this jurisdiction without exhausting such other remedy under the said contract. 7. Mr. Roy, for the purpose of establishing that this Court has jurisdiction to entertain the application, first relied on the determinations in the case of (2) Raj Krishna Bose v. Binod Kanungo & Ors., AIR 1954 SC 202 , which was a case under the provisions of the Representation of People Act 1951 and in the facts of which, it has been held that : "Even when the Legislature states that the orders of a Tribunal under an Act like the Representation of the People Act, 1951, S. 105, shall be conclusive and final, the High Court and the Supreme Court may interfere under Art.226 and Art.136 respectively. The powers conferred on the Supreme Court by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away or whittled down by the Legislature. So long as these powers remain, discretion of the Supreme Court and that of the High Courts is unfettered." He secondly relied on the determination of the Supreme Court in the case of (3) Hari Vishnu Kamath v. Ahmed Ishaque, A.I.R. 1955 S.C. 233, wherein it has been observed that the jurisdiction under Article 226 having been conferred by the Constitution, limitation cannot be placed on it except by the Constitution itself and thirdly, Mr. Roy relied on the determinations of the Supreme Court in the case of (4) Additional District Magistrate, Jabalpur v. Shrikant Shukla, AIR 1976 SC 1207 , wherein it has also been observed that there can be no doubt that Article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of fundamental rights conferred by Article 21 and also for any other purpose. If there is any legislative provision which obstructs or retards the exercise of such constitutional power, it would be void. Such observation was made by the Supreme Court as it was observed that the High Court, has constitutional power to examine the legality of detention and for that purpose, to inquire and determine whether the detention was in accordance with the provisions of law. It was thus submitted by Mr. Roy, relying on those cases that since the provisions of clause 20 of the said contract impedes or obstructs the exercise of constitutional power of the High Court under Article 226, the application would be maintainable and after the incorporation of Article 226(1A), which was inserted with effect from October 6, 1963, the present application would be maintainable and can be entertained by this Court, as the communication was made here and within the jurisdiction of this Court. When the communications have admittedly been made here at Calcutta and within the jurisdiction of this Court, then under Article 226(1A), this Court will have jurisdiction to entertain the application in the instant case, if the same is otherwise maintainable, and the restrictions as sought to be imposed by clause 20 would not generally be a bar. But the application under Article 226, in my view, would not itself be maintainable because of the specific arbitration clause in clause 24 of the said contract. The act or action of the Respondents, to have the amount so adjusted or recovered under clause 18 would certainly be a dispute or difference or a question which would come under clause 24, and as such the petitioners have specific remedy to go in arbitration and to which they have by their conduct and own volition agreed, and thus without taking recourse to the said clause 24, they would not be able to maintain the petition and as such, the same is not maintainable and entertainable by this Court in this jurisdiction. The Respondents have contended that the case was one of pure and simple contract. Even it is not so, and as contended by the petitioners, they will not be entitled to maintain the petition for the reasons as mentioned above. The determinations in the case of Union of India v. Raman Iron Foundry (supra) arose out of a proceeding duly initiated under the provisions of the Arbitration Act, which is not a case in the instant proceedings. But even if, such determinations, as submitted by Mr. Roy, are available to the petitioners, they would not be of any help or assistance in this case as I find that the application itself is not maintainable. 8. In the result, the petition fails, so also the Rule and the same is thus discharged. There will be no order as to costs. This order is however made subject to the order dated June 28, 1973. 9. Stay of operation of the order as prayed for is refused.