D. M. PATNAIK, J. ( 1 ) THE petitioner, a partnership firm situated at the Industrial estate, Adityapur, Jamshedpur with head office at Calcutta invokes extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a mandamus or any other appropriate writ, directing the Orissa agro Industries Corporation Limited (for short 'the Corporation') to deliver the entire lot of scrap materials under a contract against the price agreed upon or in the alternative to deliver articles worth the value of Rs. 14,00,000/- already paid. ( 2 ) THE opposite party-Corporation for disposal of their unserviceable machineries/ equipments and other scrap materials called for successive tenders on three different dates, but because of low offer cancelled them and the petitioner on all these occasions was a tenderer. On last of such occasion the petitioner offered price of Rs. 4,950/- per metric tonne. However, ultimately on negotiation his offer of a lump sum of Rs. 55,00,000/- for the entire lot in the schedules was accepted. It was stipulated that the entire lifting should be completed by 30. 11. 1993. The petitioner besides the deposit of Rs, 2,75,000/- being the earnest money was required to deposit Rs. 11,00,000/- as first instalment being l/5th of the total price offered by him which he deposited by bank draft dated 27. 9. 1993. It is the case of the petitioner that after depositing the amount when he went to take delivery of the materials he was disappointec to see that many valuable and/or important parts from the truck and jeep etc. were missing. In respect of some other materials it found to have been shifted to the Central store. Further, though item Nos. 16,17 and 18 of the Schedule-9 were to be delivered pursuant to delivery order but they were not available at the store at Kalahandi. So far as item No. 32 which relates to a 'trecker' the same was found to have seized by the bhawanipatna police in connection with some theft case. It is further case that instead of facilitating for lifting of the materials, for which the money was paid the Corporation asked the petitioner to deposit the second instalment of Rs, 11,00,000/- for taking delivery of the second lot of materials and it was given out by them that question of consideration of release of the vehicle (sl. It is further case that instead of facilitating for lifting of the materials, for which the money was paid the Corporation asked the petitioner to deposit the second instalment of Rs, 11,00,000/- for taking delivery of the second lot of materials and it was given out by them that question of consideration of release of the vehicle (sl. 32) would be considered only after the second instalment amount was deposited. Surprisingly enough without any response to the various letters of the petitioner about such deficiencies sent on different dates, the corporation by their letter dated 2. 3. 94 directed the petitioner to deposit the balance price amounting to rs. 40,16,000/- within a period of fifteen days. The petitioner by his letter dated 27. 4. 94 gave out the details of articles which were found missing and also gave out that although he had deposited Rs. 14,84. 000/ which included earnest money he could take delivery of goods only worth Rs. 3. 75,000/-since rest of the materials could not be lifted because of inaction of the functionaries of the corporation. The petitioner having failed to get any response from the Corporation filed this writ for an appropriate direction. ( 3 ) THE opposite party No. 1 through its secretary filed a counter. It is claimed that the petitioner's claim being a mere money claim arising out of a breach of contract, the writ petition is not maintainable since alternative remedy in the civil court is available. It was contended that the petitioner had, taken delivery of materials more than worth of Rs. 14,00. 000/ -. The allegation of missing and/ or removal of important and valuable parts from the truck and jeep were specifically denied It stated that there was. no negligence and/or latches on the part of the Corpora -. tion, but it was the inaction and evil motive on the part of the petitioner, who wanted to first lift only the valuable item from out of the schedules 1 to 20. ( 4 ) MR. S. C. Sinha, learned counsel for the petitioner strenuously urged that the corporation being an instrumentality of the state acted arbitrarily and committed breach of contract for no fault of the petitioner. ( 4 ) MR. S. C. Sinha, learned counsel for the petitioner strenuously urged that the corporation being an instrumentality of the state acted arbitrarily and committed breach of contract for no fault of the petitioner. The learned counsel referring to various documents annexed to the writ petition, such as receipt showing deposit of earnest money, his first instalment and letters of different dates, wherein he informed the Corporation authorities about the missing of various articles. It was further submitted that for this utter negligence and arbitrary act of the Corporation the petitioner should be adequately compensated. In the alternative, it was claimed that in the worst case it would be equitable to direct the Corporation to allow the petitioner to Lift further materials worth of the price which he has already paid. Mr. B. L. N. Swamy, learned counsel for the Corporation submitted that there was no breach of contract from the side of the corporation. With regard to missing materials, he submitted that there was no negligence on the part of the Corporation or its staff and they were" in no way responsible for such missing. ( 5 ) ADMITTEDLY there was a concluded contract between the parties that the materials were to be lifted on payment of five equal instalments. There is no dispute with regard to the petitioner having already deposited Rs. 14,00,000/- and odd as claimed by him. After having heard counsel for the parties it is found that a lot of facts have been pleaded by the petitioner which are disputed by the opposite parties. For example, the petitioner pleaded that after depositing his first instalment of Rs. 11,00,000/- when he went to lift the materials he found valuable parts of vehicles like truck and jeep were missing and this he brought to the notice of the Corporation. This fact is stoutly denied by the Corporation stating that the claim is false. When the opposite party claimed that the petitioner in utter disregard to the term of lifting materials in time requested for extension which was granted by the Corporation till 22. 2. 1994, the petitioner came forward with an explanation that this is not correct. However, with regard to missing of the materials as alleged by the petitioner the Corporation admitted that some of the parts got 'dislocated' during transfer of materials. 2. 1994, the petitioner came forward with an explanation that this is not correct. However, with regard to missing of the materials as alleged by the petitioner the Corporation admitted that some of the parts got 'dislocated' during transfer of materials. It was further admitted that one tractor of the Kalahandi region could not be given delivery since the same was seized by the police in a theft case. Another essential fact which was claimed by the petitioner and denied by the Corporation is that while the petitioner claimed that because of inaction of the Corporation authorities he could not lift the materials in time, the corporation pleaded that the petitioner did not lift the materials because of truck strike. Further when the petitioner claimed that he was only allowed to lift materials worth Rs. 3. 5 lakhs against the price of Rs. 14,00,000/-already paid, the Corporation averred in the counter that the petitioner in fact took delivery of materials more than worth of rs. 14,00,000/-all these disputed false cannot be adjudicated in a writ petition. ( 6 ) HOWEVER, we feel that the stipulation under the contract that the materials which admittedly stood at such distant places be lifted within a short period is difficult one to be fulfilled, even the party makes his best effort to lift the same. Availability of stock at such distant places is itself a factor to create bottleneck in many ways to get them lifted from their respective places. ( 7 ) BE that as it may, from the allegation and counter-allegation of the parties the mercantile cordiality is broken and it will be difficult to join the thread even if we direct. Therefore, we feel it appropriate to consider the petitioner's prayer for the refund of his amount which will be rather a just relief the petitioner may be entitled to get in equity, ( 8 ) WHEN the petitioner claimed that he has taken delivery of the materials worth Rs. 3 lakhs and odd this has been controverted in the counter by stating that he has taken delivery of articles of the value more than the amount he has paid. 3 lakhs and odd this has been controverted in the counter by stating that he has taken delivery of articles of the value more than the amount he has paid. Surprisingly, the Corporation has failed to inform this Court in the counter as to what is the exact value of the materials of which the petitioner has taken delivery and it is a matter of surprise that the information though available with the Corporation the same has nor been supplied from their side nor they have specifically given the value of the counter. Therefore considering the averments in the writ petition and in absence of any specific denial in the counter, we are constrained to hold that the petitioner took delivery of materials worth Rs. 3,75,300/- vide chart furnished and since he has deposited a sum of Rs. 11,00,000/- as first instalment, we would hold that the Corporation should pay back a sum of Rs. 8,50,000/- to the petitioner which in the facts and circumstances of the case, we fee! it to be equitable and appropriate. ( 9 ) IN the result, the petition is allowed. Opposite party-Corporation is directed to pay the petitioner a sum of Rs. 8,50,000/- within a period of three months from the date of the order failing which the amount shall carry an interest at the rate of 12 per cent per annum only after three months. No costs. Petition allowed. .