JUDGMENT : Deepak Gupta, J. By means of this writ petition, the petitioner has prayed for issuance of a Writ directing the respondents to refund the Contract Performance Guarantee (security deposit) (for short CPG) in five contracts amounting to Rs.42,88,664/-, which according to the petitioner, has wrongly been withheld by the respondents. 2. The petitioner entered into five different contracts for supply of transformers of different capacities to the Tripura State Electricity Corporation Ltd. (for short TSECL). Details of the contracts, the date of commencement and completion of contract, description of product, the dates on which the products were delivered and the amount of CPG + withheld amount are detailed hereinafter : Sl No NIT No. Supply order No. Date of commencement and completion of contract work Description of product QTY Quantity delivered on Amount of claim[CPG & withheld amount] Period of guarantee. 1 ESD/17/2011-12 No.F.1(3)/TSECL/CORP.OFFICE/12-13/13029-34 DATED 11.5.2012. 17.5.2012 25.10.2012 100 KVA DTR 90 36 Nos.13.10.2012 12 Nos.15.10.2012 36 Nos.25.10.2012 5 Nos.16.11.2012 1 No.24.4.2013 CPG AMOUNT :Rs.6,58,637.00 + Withheld amount Rs.11,232.00 Total : Rs.6,69,869.00 15.05.2014 2 ESD/04/12-13 No.F.AGM/DP&C/DT/TSECL/11-12/2695-2700 DATED 10.10.2012 16.12.2012 14.04.2013 25 KVA DTR 200 180 Nos 12.04.2013 19 Nos 16.4.2013 1 No 20.9.2014 CPG AMOUNT :Rs.7,28,920.00 + Withheld amount Rs.2,45,134.00 Total :Rs.9,74,054.00 15.10.2014 3 ESD/06/12-13 No.F.AGM/DP&C/DT/TSECL/11-12/2197-2203 DATED 17.09.2012 23.9.2012 20.1.2013 315 KVA DTR 20 16 Nos. 21.3.2013 3 Nos.10.4.2013 1 No 20.9.2014 CPG AMOUNT :Rs.7,44,936.00 + Withheld amount Rs.1,27,456.00 Total :Rs.8,72,392.00 9.10.2014 4 ESD/06/11-12 No.F.AGM/DP&C/DT/TSECL/11-12/96-101 DATED 11.01.2012 17.01.2012 15.05.2012 63 KVA DTR 130 60 Nos 30.4.2012 70 Nos. 18.6.2012 CPG AMOUNT :Rs.4,32,322.00 + Rs.4,32,322.00 (BANK GUARANTEE) + Withheld amount Rs.58,338.00 Total :Rs.9,22,982.00 17.12.2013 5 ESD/06/11-12 ADDL. SUPPLY ORDER :AGM/DP&C/DT/TSECL/11-12/1031-1037 Dated 09.5.2012 15.5.2012 11.9.2012 63 KVA DTR 116 14 Nos. 13.10.2012 42 Nos. 15.10.2012 56 Nos. 25.10.2012 4 Nos. 18.11.2012 CPG AMOUNT :Rs.7,71,528.00 Withheld amount Rs.77,839.00 Total : Rs.8,49,367.00 17.5.2014 3. The case of the petitioner is that after supplies were made, amounts were settled and after settlement of accounts, the officials of the electricity board had worked out the amount payable as reflected in the last column of the aforesaid compilation. The petitioner, therefore, alleges that the bills having been settled the respondent-corporation had no right to withhold the amounts and has, therefore, prayed for payment of the entire amounts. 4. The petitioner, therefore, alleges that the bills having been settled the respondent-corporation had no right to withhold the amounts and has, therefore, prayed for payment of the entire amounts. 4. After we had issued notice to the respondents, one counter-affidavit was filed on behalf of the TSECL by Sri Santi Gopal Choudhuri, General Manager (Finance) and Nodal Officer (Legal) of the said corporation and in this affidavit, it was mentioned that the petitioner was only entitled to Rs.3,75,809/- and the rest of the amount had been deducted as per the terms of the contract for late supply and with regard to one contract, it was submitted that the period of CPG had not yet come to an end. Thereafter, rejoinder was filed and it was pointed out that the facts stated in the counter-affidavit were false and therefore, we had on 24th November, 2015 directed the Chairman-cum-Managing Director of the Corporation to file his personal affidavit. Sri Shamal Kumar Ray, Chairman-cum-Managing Director of the Corporation has now filed his personal affidavit and he has now mentioned that in the five contracts, the claimant is entitled to a sum of Rs.(1,00,026 + 7,25,551 + 1,56,294 + 1,24,849 + 1,51,001/-) = Rs.12,57,721/-. Therefore, even according to the respondents, this sum is repayable. This clearly indicates that the earlier affidavit filed by Sri Santi Gopal Choudhuri was false. 5. The main dispute relates to late supply of the material and the department has levied penalty for late supply of some of the transformers. All the contracts contained a condition with regard to the payment of liquidated damages which reads as follows : “LIQUIDATED DAMAGES - In case the materials are not delivered within the time stipulated in the order, the supplier shall be liable to pay at the discretion of the competent authority of purchaser, the liquidated damaged to be determined by the purchaser as 1% of the delivered price of the delayed goods or un-performed services for each week of delay until actual delivery or performance subject to a maximum deduction of 10% of the delayed goods/services price. Due consideration may be given in the levy of damages for reasons absolutely beyond the control of the supplier for which documentary evidence shall provided to the satisfaction of the competent delayed supplies.” 6. Due consideration may be given in the levy of damages for reasons absolutely beyond the control of the supplier for which documentary evidence shall provided to the satisfaction of the competent delayed supplies.” 6. It is not disputed that the petitioner applied for extension of time and time has been extended subject to levying of penalty. The provision regarding extension of time reads as follows : “12.0 EXTENSION OF TIME 12.1 The TSECL may consider to grant extension of time for the completion the supply if it is felt absolutely essential on fulfillment of following conditions by contractors :- a) The supplier/contractor may apply to the Engineer-in-charge in writing for extension of time in writing so required justifying the necessity. b) Such application must state the grounds which hindered the supply/contractor in the execution of the work within the time as stipulated in the contract document/agreement. c) Such application must be made within 30 days of the date on which such hindrance had arisen. d) The engineer-in-charge must be of the opinion that the grounds shown for the extension of time are reasonable and without extension of such time completion of the work is practically impossible. 12.2 According to the terms of the contract the Engineer-in-charge has full powers but the orders on the application of the supplier/contractor connected with the agreement accepted by the authorities higher than the Engineer-in-charge should be issued by him only after written approval of the authorities higher than the Engineer-in-charge. 12.3 The opinion of the Engineer-in-charge, whether the grounds shown for the extension of time are or are not reasonable, is final. If the Engineer-in-charge is of the opinion that the grounds shown by the supplier/contractor are not reasonable and declines to the grant extension to time, the supplier/contractor cannot challenge.” 7. According to the petitioner, since the accounts had been finalized, the TSECL could not after 2 years levy further charges for delayed supply. It is further contended that most of the supplies have been made within time and the TSECL has wrongly treated the entire supplies to be outside the time. 8. We are not entering into disputed questions of fact. In case the TSECL has power to levy penalty and has done so, then the appropriate remedy for the petitioner is to approach the Civil Court or to move the arbitrator as per the terms of the agreement. 8. We are not entering into disputed questions of fact. In case the TSECL has power to levy penalty and has done so, then the appropriate remedy for the petitioner is to approach the Civil Court or to move the arbitrator as per the terms of the agreement. We, in this writ petition, cannot decide disputed questions of fact. However, there are certain glaring aspects of the matter. It is more than apparent to us that the TSECL has been trying to delay payment on one pretext or the other. In the earlier affidavit filed, the entire consignments were stated to be delayed and penalty was levied not in accordance with the terms of the contract but exorbitant penalty was levied. Now in the latest affidavit filed by the Chairman-cum-Managing Director of the Corporation, there is some reasonableness but even now we find that some of the facts stated are not wholly in consonance with the terms of the agreement. 9. We may point out that as per the liquidated damages clause, the liquidated damages are to be levied @ 1% for every weeks delay on the delivered price of delayed goods and, therefore, it is apparent that when there is a contract for supply of large number of goods, penalty @ 1% for each week of delay can be levied with a maximum deduction of 10% on the value of the delayed goods. At the outset we may notice that when we are dealing with a penal clause levying on liquidated damages, the clause has to be construed strictly and therefore, liquidated damages of 1% will have to be levied on completion of a week. Therefore, if there is a delay up to 6 days, no penalty can be levied, if the delay is 7 to 13 days then only 1% penalty can be levied, if the delay is 14 to 20 days then 2%, if the delay is 21 to 27 days, then 3% and so on. The electricity corporation has done just the opposite. It has treated every day of delay, even shorter delay of 2 to 3 days equivalent to a week. This cannot be permitted. To give an example, under the first contract 90 numbers of transformer were to be supplied. The date of commencement of the contract was 17th May, 2012 and the date of completion was 25th October, 2012. It has treated every day of delay, even shorter delay of 2 to 3 days equivalent to a week. This cannot be permitted. To give an example, under the first contract 90 numbers of transformer were to be supplied. The date of commencement of the contract was 17th May, 2012 and the date of completion was 25th October, 2012. It is not disputed that 84 transformers were supplied within time, 5 transformers were supplied on 16th November, 2012 and one was supplied on 24th April, 2013. 10. The case of the department is that the petitioner has wrongly taken the date of completion of the contract to be the last date of supply. In this behalf we may refer to one of the supply orders wherein the delivery schedule has been mentioned as follows : “3. Delivery Schedule The delivery shall be completed within 5(five) months 12(Twelve) days and to be reckoned from the 7th day of issue of supply order. The 1st lot of quantity i.e. 60 Nos. shall be supplied within 3(three) months positively and the balance quantity will be supplied within delivery period mentioned above.” 11. As stated above, we are not going into disputed questions of law. Whether it was open to the TSECL to lay down such a schedule is not for us to decide. However, even as per this schedule, the delivery was to be completed within 5 months and 12 days to be reckoned from the 7th day of issue of the supply order. The supply order was issued on 11th May, 2012 and 7th day would be 18th May, 2012 and, therefore, the last date of the agreement would be 5 months and 12 days i.e. 30th October, 2012 and not 25th October, 2012 as calculated by the Corporation. Furthermore, the first quantity of 60 numbers of transformer was also to be supplied within 3 months i.e by 17th August, 2012. The first lot of 36 numbers was supplied on 13th October, 2012. If the due date of supply of 60 transformers is taken to be 17th August 2012, the delay is 56 days which will be 8 weeks and not 9 weeks as calculated. The second lot of 12 numbers was supplied on 15th October, 2012 and the delay would be 58 days and that would also be treated to be 8 weeks. The second lot of 12 numbers was supplied on 15th October, 2012 and the delay would be 58 days and that would also be treated to be 8 weeks. The third lot of 12 numbers was supplied on 25th October, 2012 i.e. delayed by 68 days and the delay will be 9 weeks and not 10 weeks as calculated by the department. The contract period as stated by us would be 30th October, 2012 and therefore, the supply of 5 transformers made on 16th November, 2012 was delayed by 17 days and not 22 days and the delay would be 2 weeks and not 4 weeks as calculated by the department. With regard to the last transformer we will be giving separate directions. 12. Similarly in the next contract for supply of 200 numbers of 25 KVA transformers, the delivery schedule was four months from the 7th day of issue of supply order. The supply order was issued on 10th December, 2012 and the 7th day would be 17th December, 2012 and 2 months would end on 17th February, 2013 and not 13th February, 2013. Therefore, the supplies made on 12th April, 2013 would be delayed by 54 days and not 58 days which should be treated as 7 weeks. The second lot of 50 transformers was to be supplied by 12th February, 2013 but it was actually supplied on 17th March, 2013 and the delay would be 26 days which would be equal to 3 weeks and not 4 weeks. The third lot was obviously within time. The delay of 2 days cannot be taken to be a delay at all. In all the cases, the calculations will have to be made accordingly. The calculations made by the department are obviously incorrect. In the third contract the supply order was issued on 17th September, 2012 and the period was to start from the 7th day i.e from 24th September, 2012. The first lot of 10 numbers was to be supplied within 2 months i.e. by 24th November, 2012 and the remaining within 4 months i.e. by 17th January, 2013. They may make calculations for the rest accordingly. 13. Another dispute is with regard to one transformer which in each case has been supplied much beyond the period of 10 weeks. The first lot of 10 numbers was to be supplied within 2 months i.e. by 24th November, 2012 and the remaining within 4 months i.e. by 17th January, 2013. They may make calculations for the rest accordingly. 13. Another dispute is with regard to one transformer which in each case has been supplied much beyond the period of 10 weeks. The stand of the petitioner is that one transformer had to be sent to a recognized government test house approved by the purchaser and as per the directions of the respondents, one sample out of each lot was sent to a testing laboratory at Gujarat and that sample was supplied late because of the delay taken at the test laboratory. Since the test was done at the instance of the TSECL, the petitioner contractor cannot be held responsible for the delay. In this regard we may make reference to the relevant clause which reads as follows : “iv) The test charges shall be borne by the firm. Note : Purchaser reserves the right to get all or any type test carried out on at least one sample for rating of transformer at the cost of supplier from any recognized laboratory government test house approved by the purchaser.” The purchaser i.e. the TSECL has reserved the right to get all or any type test carried out on at least one sample for each rating of transformer. This test is carried out at the instance of the purchaser at a laboratory approved by it. In case there is delay in testing and supplying of that transformer out of each lot, that cannot be taken into consideration either for the purpose of calculating the time period of the guarantee or for reckoning the last date of supply for that sample transformer. The date when the said sample transformer was delivered to the testing laboratory should be deemed to be the date of delivery to the TSECL also. 14. Therefore, we are clearly of the view that the TSECL has wrongly calculated the period of CPG and has also erred in applying penalty on delayed supply of the sample transformer. The date when the said sample transformer was delivered to the testing laboratory should be deemed to be the date of delivery to the TSECL also. 14. Therefore, we are clearly of the view that the TSECL has wrongly calculated the period of CPG and has also erred in applying penalty on delayed supply of the sample transformer. We, therefore, hold that as far as the sample transformers are concerned, the delay in supply of the same shall not be taken into consideration for any purpose whatsoever because the supply and the date when the said sample transformer was supplied to the testing laboratory shall be deemed to be the date when it was supplied to the TSECL. As per the terms of the agreement, the TSECL had to pay the amount on completion of the period of CPG which may be reckoned at 18 months from the date of last supply made excluding the supply of sample. 15. In view of the above, we dispose of the writ petition with the following directions : The TSECL is directed to recalculate the amount of CPG refundable to the petitioner in line of what we have stated hereinabove. The needful shall be done within 4(four) weeks from today and the TSECL shall refund the amount along with interest @ 15% per annum from the date of completion of the guarantee taken at 18 months from the last date of supply excluding the supply of the sample transformers to the petitioner. 16. We have not answered the disputed questions and in case the petitioner is aggrieved and according to him, no deduction on account of delayed supply should have been made, the petitioner shall be at liberty to take appropriate civil proceedings in accordance with law. We find that the TSECL firstly took up a totally false plea and even after it came to the conclusion that it is liable to pay Rs.12,57,721/-, it has not paid this amount showing total unethical behavior and therefore, we burden the TSECL with costs of Rs.20,000/- to be paid to the petitioner. The petition is disposed of with the aforesaid terms.