Judgment ( 1. ) THE petitioner by way of present writ petition filed under Articles 226 and 227 of the Constitution of India seeks multiple reliefs, ranging from challenge to notice Inviting Tender dated 18-5-1990, the acceptance of the petitioners offer vide letter dated29-6-1990, undertaking given by the petitioners on 7-7-1990, demand letter dated 26-9-1990 calling upon the petitioners to deposit an amount of Rs. 5,09,222. 52 towards third instalment, demand letter dated 27-10-1990 calling upon the petitioner to deposit Rs. 10,25,969. 49 being the sum total of third and fourth instalments, notice dated 12-11-1990 calling upon the petitioners as to why in the wake of breach of the terms of contract the agreement dated 7-7-1990 be not terminated and an order dated 23-11-1990 terminating the agreement dated 7-7-1990 and forfeiting the security amount and directing the petitioners to deposit the entire unpaid amount. The writ of quo warranto which the petitioner sought in the writ petition was given up at the time of hearing. ( 2. ) THE facts briefly are that, in pursuance to Notice Inviting Tenders dated 18-5-1990 issued on behalf of Rajya Laghu Van Upaj (Vyapar Avam Vikas) Sahkari Sangh Maryadit for the purchase of Tendu Leaves of the Tendu patta Season 1989, the offer tendered by the petitioner for three lots viz. , lot no. 1365 at Raipur, lot No. 1336 at Madanpur and lot No. 645 of Gorbi at Rewa was accepted vide letter dated 19-6-1990. An agreement between the petitioners and respondent No. 2 was entered into on 7-7-1990; incorporating therein, various terms and conditions. The controversy in the present case centers around lot No. 645 Gorbi. This lot was out of the Tendu Leaves, collected from Unit No. 966, Silfori and the same was placed in standard bags in rented godown belonging to one Shri Abdul Rashid Parvej Alam at Deora. In the lot there were 2045. 921 standard bags and the price payable for the entire lot @ Rs. 829/- per standard bags comes to Rs. 16,96,068. 57. This amount was to be paid in 4 instalments as under:- ( 3. ) THE first instalment through Bank Draft was paid on 28-7-1990 and second instalment on 8-8-1990 entitling the petitioners to have a delivery of 1022. 60 standard bags (511. 480 + 511. 480 ). 829/- per standard bags comes to Rs. 16,96,068. 57. This amount was to be paid in 4 instalments as under:- ( 3. ) THE first instalment through Bank Draft was paid on 28-7-1990 and second instalment on 8-8-1990 entitling the petitioners to have a delivery of 1022. 60 standard bags (511. 480 + 511. 480 ). The delivery order in respect of first instalment was issued on 30-7-1990 and for second instalment the same was issued on 10-8-1990. However, some dispute arose at this stage when the petitioner raised an objection indicating therein that the bags kept in godown of abdul Rashid Parvej Alam does not contain the leaves collected from Silfori unit, as the name of Unit number endorsed upon the standard bags were missing. Consequent thereof physical verification of 1468 bags was done and Panchnama on 28- 10-1990 was prepared indicating therein that, the petitioner was delivered 1291 bags against first and second instalments. In the meantime third and fourth instalments which was due on 15-9-1990 and 15-10-1990 were not paid by the petitioners, consequent whereof a show-cause notice was issued on 12-11-1990 and since no reply was received the agreement dated 7-7-1990 was terminated by order dated 23-11-1990 proposing further to recover the dues towards the remaining instalment along with interest thereon, which, if not paid, was to be recovered by selling and adjusting from the. remaining lot. It is this action of the respondent which is being challenged in the present writ petition. ( 4. ) ASSAILING the action, it is the contention of the learned Counsel for the petitioner that, being a commercial contract and the time being the essence of contract it was incumbent upon the respondent Sangh to have effected the supply qua instalments paid by the petitioners and since, breach was committed by the respondent in not supplying the standard bags wherefore the agreement was entered into, the respondents were not justified in terminating the contract and forfeiting the security amount. ( 5. ) TO substantiate the submissions the learned Senior Counsel besides placing reliance on various clauses of agreement and more particularly clauses 2,5,10 places reliance on the judgment rendered by the Apex Court in mahabir Prasad Rungta Vs. Durga Datta, AIR 1961 SC990,m/s. China Cotton exporters Vs. Beharilal Ramcharan Cotton Mills Ltd. , AIR 1961 SC 1295 , State of Haryana and others Vs. Durga Datta, AIR 1961 SC990,m/s. China Cotton exporters Vs. Beharilal Ramcharan Cotton Mills Ltd. , AIR 1961 SC 1295 , State of Haryana and others Vs. Lal Chand and others, AIR 1984 SC 1326 , State of karnataka Vs. Shree Rameshwara Rice Mills, AIR 1987 SC 1359 , General manager, Northern Railway and another Vs. Sarvesh Chopra, (2002) 4 SCC 45 . The petitioner further relies upon the judgment by Apex Court in ABL international Ltd. and another Vs. Export Credit Guarantee Corporation of India ltd. and others, (2004) 3 SCC 553 , to bring home the submissions that even in contractual matters the High Court can interfere under Article 226 of the constitution of India if the State or its instrumentality acts in an arbitrary manner. On the anvil of these submissions, the petitioners claim the relief noted in the earlier point of this order. ( 6. ) THE respondents on their turn oppose the relief sought, contending inter alia that, the action on the part of respondents being strictly in accordance with the terms of contract there is no infirmity in action taken in terminating agreement, forfeiting the security amount and calling upon the petitioner to pay the amount due towards third and fourth instalments and the interest thereon. It is accordingly contended that there being no illegality in the action taken by the respondents, no interference is called for in a writ petition under Article 226/227 of the Constitution of India. ( 7. ) HEARD the learned Counsel for the parties and considered the rival submissions. ( 8. ) INDISPUTABLY, the controversy which crops up on the present petition is a fall out of a contract entered into between the petitioner and respondent, regarding supply of Tendu Patta Leaves, and for interfering in such matter under Article 226 of the Constitution there are three contingencies whereof the power to issue writ can be exercised and these three contingencies were, carved out by the Honble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1 , wherein Paragraph 15, Their Lordships were pleased to observe:- But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. . . . . " ( 9. ) IN the case at hand, none of aforementioned three contingencies have been shown to have occurred as would call for the interception in the action of respondents. ( 10. ) IN Life Insurance Corporation of India Vs. Escorts Ltd. and others, (1986) 1 SCC 264 , Their Lordships were pleased to observe in Paragraph 102: "102. For example, if the action of the State is political or sovereign in character, the Court will keep away from it. The Court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the tort, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and does the robs of a shareholder, with all the rights available to such a shareholder. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and does the robs of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by resolution of the company, like any other shareholder. " ( 11. ) THE petitioner in the instant case has failed to establish that there is a failure on the part of the respondent in discharging public function or public duty. The dispute frescoed in the writ petition borders upon the facts that in pursuant to a contract the petitioner was entitled for the supply of standard bags collected from Unit No. 966 Silfori; however, dispute arose when some of the standard bags were not carrying the tags of the said Unit and though the same, as per respondents, was resolved after physical verification of individual standard bags when 177 bags were sorted out and set apart and the delivery towards first and second instalment was given to the petitioner. The petitioner, however, disputing the bonafides of the respondent stops the payment of third and fourth instalments. It is not the case of the petitioner that the supply of bags was sine qua non for making payments of further instalments. No such clause is brought to the notice of this Court which stipulates that till the supply towards an instalment is not made, the purchaser was not supposed to part with further instalments. On the contrary, it was incumbent upon the petitioner to have lifted the entire lot within a stipulated time, i. e. , by 30-11-1990 as delineated in Clauses 2 and 5 (J) of the agreement dated 7-7-1990, Annexure P-3, which stipulated:- ( 12. ) SECTION 39 of the Indian Contract Act, 1872 provides for effect of refusal of party to perform promise wholly, stipulating therein that:- "when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promise may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. " ( 13. " ( 13. ) IN the case at hand the petitioner having disabled himself from performing his promise in its entirety,i. e. , failed to deposit the entire instalment and there being no reciprocity in the contract, the petitioner could not have insisted upon the supply of lot towards first and second instalment and then depositing the third and fourth instalments. Therefore, in the present case there being no reciprocal promise, the principle of law laid down in the case of mahabir Prasad Rungta Vs. Durga Datta (supra), and Beharilal Ramcharan cotton Mills Ltd. (supra), are not attracted. ( 14. ) THUS, no interference is called for in the action of the respondent terminating the contract dated 7-7-1990. In respect of damages, this Court on 22-1-1993 directed "that pending disposal of the case no further recovery shall be made of the alleged loss to the department under documents 1 and 2 dated 11-3-1992 and 2-1-1993 respectively filed along with I. A. No. 301/1993". ( 15. ) CLAUSE 10 of the agreement dated 7-7-1990 stipulates:- ( 16. ) THE respondent Nos. 2 to 6 in Paragraph 6 of,the return make the following statement:- "6. The balance quantity of tendu leaves of lot No. 645, 1022. 971 standard bags are still with the answering respondents which they propose to dispose off through a public auction and the loss caused to the answering respondents shall be recovered from the petitioners as arrears of land revenue. As the petitioner did not fulfill the terms of the agreement, which he had executed and failed to deposit 3rd and 4th instalments, in time, the security deposit has been forfeited. " ( 17. ) IN the State of Karnataka Vs. Rameshwara Rice Mills, Thirthahalli (supra), Their Lordships of the Apex Court were pleased to observe: "7. On a consideration of the matter we find ourselves unable to accept the contentions of Mr. Iyengar. The terms of Clause 12 do not afford scope of a liberal construction being made regarding the powers of the Deputy Commissioner to adjudicate upon a disputed question of breach as well as to assess the damages arising from the breach. The crucial words in Clause 12 are "and for any breach of conditions set forth hereinbefore, the first party shall be liable to pay damages to the second party as may be assessed by the second party". The crucial words in Clause 12 are "and for any breach of conditions set forth hereinbefore, the first party shall be liable to pay damages to the second party as may be assessed by the second party". On a plain reading of the words, it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. If it was then intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording of Clause 12 would have been entirely different. It cannot also be argued that a right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess the damages, as pointed out by the Full Bench, is a subsidiary and consequential power and not the primary power. Even assuming for arguments sake that the terms of Clause 12 afford scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the Officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the Officer of the state, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of Clause 12. " ( 18. ) THUS, no damages have been assessed by the respondent. Therefore, keeping in mind the verdict in State of Karnataka Vs. " ( 18. ) THUS, no damages have been assessed by the respondent. Therefore, keeping in mind the verdict in State of Karnataka Vs. Shree rameshwara Rice Mills (supra), and the fact that no damages as yet has been assessed, it is ordered, unless the damage caused to the respondent because of non-performance of contract is assessed by the respondents, no recovery in lieu of damages be effected. Needless to say that it is open for the respondents to assess the damages and recover the same in accordance with law. ( 19. ) IN result, the petition is partly allowed to the extent above. No costs.