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2014 DIGILAW 54 (TRI)

Namita Paul v. Food Corporation of India

2014-02-07

S.TALAPATRA

body2014
JUDGMENT Subhasis Talapatra, J.:- As a common thread of controversy wades through the writ petitions, being W.P.(C) No. 256/2013, W.P.(C) No. 257/2013, W.P.(C) No. 258/2013, W.P.(C) No. 259/2013, W.P.(C) No. 260/2013, W.P.(C) No. 261/2013, W.P.(C) No. 262/2013 and W.P.(C) No. 263/2013, those are tied-up together for disposal by a common judgment and order. The petitioner has long experience of transporting foodgrains/sugar/allied materials into the State of Tripura and to the various other destinations. She has been awarded the transport contracts on regular basis for transportation of foodgrains/sugar/allied materials from different Railheads/FSD to different FSD/CWC godowns of Tripura by the General Manager, Food Corporation of India, Regional Office, NEF Region, Shillong. For purpose of reference, the appointment letters emerged from the transport contracts have been placed in a tabular form below against each writ petitions. 2. After successfully transporting the foodgrains/sugar/allied materials, the petitioner sought for refund of the security deposits alongwith the 'No Demand Certificates' issued by the concerned Depot Managers with recommendation for release of the security deposits. Even though the petitioner has completed the transportation in terms of the contract satisfactorily, the respondents, particularly the respondent No. 3, to whom the demand for refund of the security deposits had been raised, did not release the security deposits to the detriment of the petitioner. Being aggrieved by the said action, the petitioner has filed these writ petitions for direction to the respondents for refunding the security deposits with interest. 3. The respondents, by filing a combined counter-affidavits in each of the clustered writ petitions have admitted the factual aspects projected by the writ petitioner. But, they have contended that by invoking the provisions of Clause X(c) of the Contract Agreement, which provides that "any sum of money due and payable to the contractor (including security deposit refundable to the contractor) under this contract may be appropriated by the Corporation and set off against any claim of the Corporation for the payment of any sum of money arising out of or under this contract or any other contract made by the contractor with the Corporation", they have withheld the refund of the security deposits. According to the respondents, the petitioner is liable to pay a huge sum to the Food Corporation of India and despite the demand notices, the petitioner has failed to pay the said amount. In para. According to the respondents, the petitioner is liable to pay a huge sum to the Food Corporation of India and despite the demand notices, the petitioner has failed to pay the said amount. In para. 6 of the counter-affidavit, they have asserted as under: As the petitioner failed to pay any amount as per demand notices the FCI was compelled to file two money suits bearing Nos. M.S. 27 of 2013 and M.S. 28 of 2013 and value of the said suits are Rs. 1,89,86,602/- and Rs. 1,23,11,613/- respectively. The above mentioned suits are now pending in the Court of the learned Civil Judge, Sr. Division, Court No. 1 and 2, Agartala, West Tripura, respectively. 4. While responding to the averments made by the petitioner that for transportation of foodgrains etc., VAT/Sales Tax is not exigible, the respondents have categorically admitted that position of law as enunciated by this court. Most importantly, the respondents have admitted the entire para 5 of the writ petitions where the petitioner, inter alia, has categorically stated that 'No Demand Certificates' were duly issued by the concerned depot Managers with recommendation for release of the security deposits and those were submitted to the respondent No. 3 in due course. 5. Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that the action of withhold of the security deposits by the respondents, even though the refund as demanded has emerged from the transport contracts, is absolutely arbitrary and in contrast to the provisions of Article 14 of the Constitution of India. He has further contended that the respondents have not disputed the fact as averred in the writ petitions. Mr. Bhowmik, learned senior counsel further submitted that when there is no dispute as regards the factual aspects, this court may direct the respondents for releasing the security deposit within a time frame and such direction would fall well within the scope of Article 226 of the Constitution of India. 6. Mr. P. Chakraborty, learned counsel appearing for the Food Corporation of India-respondents, has submitted that in view of clause X(c) of the contract agreement the respondents can appropriate or set off any amount as the claim of the Corporation from the sum payable under the contracts as referred. 6. Mr. P. Chakraborty, learned counsel appearing for the Food Corporation of India-respondents, has submitted that in view of clause X(c) of the contract agreement the respondents can appropriate or set off any amount as the claim of the Corporation from the sum payable under the contracts as referred. Thus, it cannot be said that the action, taken by the respondents by withholding the payment of the security deposits, is arbitrary, rather the respondents have acted within the province of the said contracts. 7. The controversy now falls within a very short campus whether the said clause X(c) of the contract agreement can be invoked by the respondents in the manner as they claimed to have invoked or whether the respondents are within their limit to withhold the refund of the security deposits till disposal of the suits, they have instituted, for realising a huge sum from the petitioner. It is not the claim of the respondents that they have appropriated or set off the security deposits of the petitioner against the said claims, which are now the subject matter of the suits. 8. There cannot be any amount of dispute that unless the civil court decides the suits, the respondents cannot say, the petitioner is liable to pay the suit money to them. It has not also been disputed that the concerned depot managers have issued 'No Demand Certificates', recommending payment of the security deposits. More details are placed in the Table-II below: 9. From a plain reading of clause X(c) of the contract agreements, what has surfaced is that the respondents can appropriate and set off any amount of money due and payable to the contractor (including security deposit refundable to the contractor) against any claim of the Corporation for payment of any sum arising out of or under the contract or any other contract between the contractor with the Corporation. 10. In para. 6 of the counter-affidavit, the respondents have stated that the petitioner has failed to perform the transportation work in Churaibari to Chandrapur and Churaibari to Arundhutinagar, not related to the transportation contracts, referred in this cluster of the writ petitions. It is apparent on the face of the averments made by the respondents that the petitioner has not accepted her liability despite their demand put forward by the notice. It is apparent on the face of the averments made by the respondents that the petitioner has not accepted her liability despite their demand put forward by the notice. Even the respondents have not exercised their authority under clause X(c) of the contract agreements inasmuch as the respondents have nowhere stated that they have appropriated any amount or they have set off any amount against their claim. As such, the plea that clause X(c) has been invoked cannot be accepted by this court. 11. Having held so, the respondents are directed to refund the security deposit as reflected in Table II above without any deduction, as VAT or Sales Tax is not exigible in case of the contracts for transportation of foodgrains etc., within a period of 3(three) months from today. In the event of failure of making the refund of the security deposits as stated within the period as stipulated, the respondents shall have to pay interest @ 9% per annum from the date of the letter by which the petitioner had demanded for releasing the security deposits. The writ petitions are accordingly allowed. The parties are to bear their respective costs.