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2016 DIGILAW 920 (JHR)

Pamposh Refractory & Ceramic Works v. Steel Authority of India Limited

2016-06-13

APARESH KUMAR SINGH

body2016
ORDER : 1. Petitioner is a manufacturer of fire-clay-bricks. Respondent- Steel Authority of India Limited and its Unit at Bokaro Steel Plant places purchase orders from time to time for supply of fire-clay-bricks with a penalty clause that if he fails to do so within the time stipulated, the purchase would be done through different source and difference of amount would be recoverable from the petitioner. 2. In W.P. (C) No.6149 of 2013 one such recovery advice dated 2nd August, 2013 for a sum of Rs.6,54,983/- (Annexure-6) has been challenged apart from seeking a direction upon the respondents to accept the supply of ready stock of fire-clay-bricks from the petitioner in terms of purchase order dated 6th February, 2013. He also questioned the terms of risk purchase clause and the provisions relating to liquidated damages. 3. In W.P. (C) No.1991 of 2014 petitioner has sought a direction upon the respondents to again receive the ready materials and ensure payment instead of withholding the payment in relation to purchase orders no.P14/0114/4510018237 dated 16.4.2012, P14/0211/4510023922 dated 14.3.2013, P14/0286/4510029262 dated 20.12.2013 and P13/0224/ 4510029264 dated 20.12.2013. He has also sought restrain order on the respondents from proceeding to issue recovery advice. Provisions of the purchase order relating to the liquidated damages have also been questioned. 4. Respondents in their counter-affidavit have resisted the claim relying upon the facts of the case stating that the petitioner had failed to make supplies against relevant purchase order within the time stipulated. They also rely upon the provisions of the purchase order which petitioner accepted consciously at the time of its issuance and has also made supply in respect of certain purchase orders within time for which payments were also made. However, in respect of certain supplies which were not made within time, respondents have procured it from different sources and accordingly sought to charge the differential amount by issuing recovery advice upon the petitioner. 5. In the aforesaid state of facts, counsel for the respondents has questioned the maintainability of the writ petitions arising out of an agreement/purchase order which is governed by its own terms and conditions and may be amenable to any alternative remedy. 6. Counsel for the petitioner, on the other hand, submits that petitioner's supplies were delayed in case of certain purchase orders on account of break down in the factory and he has already suffered a lot. 6. Counsel for the petitioner, on the other hand, submits that petitioner's supplies were delayed in case of certain purchase orders on account of break down in the factory and he has already suffered a lot. According to the petitioner, the amount of Rs. 8 lacs is still due to the petitioner. However, the respondents have proceeded for adjustment to the tune of Rs.39,41,664/- as per the statements made in paragraph-13 of W.P. (C) No.1991 of 2014. 7. In the wake of question of facts involved herein, it is not proper for this Court to exercise its writ jurisdiction to issue directions in the nature prayed for, such as accepting ready materials of the petitioner after the stipulated time period as the purchase orders are clear that time was the essence of contract. It is also not proper to enter into the question of facts relating to reasons for the delay and the justification on the part of the respondents for procurement from other sources and invocation of the risk purchase clause levying liquidated damages. 8. Be that as it may, petitioner is at liberty to approach the respondent authorities such as respondent no.2 - The Executive Director (Materials Management) SAIL, Bokaro Steel Plant, so far as the prayer relating to adjustment of the balance amount due to the petitioner and still lying with them is concerned. Apart from that in respect of the dispute raised by the petitioner relating to recovery of amount payable to him from other bills, it is open to the petitioner to invoke the appropriate alternative statutory remedy for redressal of his grievance, if permissible by way of arbitration or through the forum of competent court of law. 9. Therefore, without interfering in the matter, writ petitions are disposed of with the aforesaid liberty to the petitioner. Needless to say, if a representation is made in respect of the aforesaid claim to the respondent no.2 duly supported with all necessary facts and documents, the concerned respondent/competent authority would look into the representation of the petitioner in accordance with law within a reasonable time. 10. I.A. No.8284 of 2013 also stands disposed of. Petitions disposed of.