JUDGMENT : DIPANKAR DATTA, J. 1. Earnest money deposited by Shree Enterprises Coal Sales Pvt. Ltd. (hereafter the company) was forfeited by Bharat Coking Coal Limited (hereafter BCCL). Whether such forfeiture was justified had emerged for decision before a learned Judge of this Court on a writ petition [W.P. 6828 (W) of 2015], presented by the company and one of its directors (hereafter the writ petitioners, wherever referred to collectively). The challenge succeeded; hence, BCCL and its Chairman-cum-Managing Director are in appeal before us calling in question the judgment and order dated March 16, 2016. 2. The facts necessary for disposal of this appeal are these. The writ petitioners participated in an e-auction conducted by M Junction, a service provider, appointed by BCCL for purchase of coal. Having regard to its bid, the company was allotted two rakes of coal. The same were required to be lifted in accordance with a programme chalked out in terms of the terms and conditions of the e-auction notice, upon payment of balance coal value. In terms thereof, the company submitted an application for allotment of railway rakes, which upon endorsement by BCCL, resulted in sanction of two rakes by the East Central Railways (hereafter ECR). The validity period of the sanction was till June 11, 2009. BCCL by a notice dated April 27, 2009 informed buyers who had booked their rail programmes through bank guarantee to deposit demand draft/pay order along with debit advice to the tune of bank guarantee involved in the respective programmes by 5.30 p.m. on the dates mentioned in the second column of the table therein. Payment of balance coal value could be made between April 30, 2009 and May 8, 2009. The company claimed that such notice was not brought to its notice and, therefore, payment could not be tendered by May 8, 2009. One need not enter into the controversy as to the effect of non-payment by the last date i.e. May 8, 2009, since undisputedly BCCL by a further notice dated May 6, 2009 intimated fresh dates to the buyers. Payment could now be made between May 12, 2009 and June 3, 2009. Though the company had access to the notice dated May 6, 2009, it did not tender payment by June 3, 2009; instead, it tendered payment of Rs. 1,36,02,000.00 towards balance coal value on June 8, 2009. Payment could now be made between May 12, 2009 and June 3, 2009. Though the company had access to the notice dated May 6, 2009, it did not tender payment by June 3, 2009; instead, it tendered payment of Rs. 1,36,02,000.00 towards balance coal value on June 8, 2009. The payment was accepted; however, the rakes for lifting of coal purchased by the company were not placed. As a consequence the sanction of rakes by ECR having validity till June 11, 2009, lapsed. By a writing dated July 10, 2009, ECR informed the writ petitioners that due to poor loading performance by BCCL, the rakes could not be allotted in their favour. Seized of such information, the writ petitioners requested BCCL to refund the entire money deposited by them i.e. the balance coal value and the earnest money. BCCL returned Rs. 1,36,02,000.00 towards balance coal value but forfeited the earnest money of Rs. 78,00,000.00. 3. Upon hearing the contesting parties and on consideration of the version of ECR, which was placed on record by an affidavit, the learned Judge in the impugned judgment and order ruled that the company was a victim of squabbles between BCCL and ECR and, therefore, directed the former to return the earnest money of Rs. 78,00,000.00 together with interest @ 8%. 4. Appearing in support of the appeal, Mr. Bose, learned senior advocate contended that interference in exercise of our appellate powers is warranted on the following grounds: I. A contractual dispute was made the subject matter of writ litigation and since hotly disputed questions of fact were involved and the writ petitioners had also invoked the arbitration agreement contained in the contract, the learned Judge ought to have stayed away from deciding the writ petition and relegated the writ petitioners to the arbitral tribunal. II. By a notice dated May 6, 2009 BCCL had fixed June 3, 2009 as the last date for payment of balance coal value and the writ petitioners admittedly not having tendered payment by the last date, BCCL did not act illegally or in an arbitrary manner in forfeiting the earnest money deposited by the writ petitioners. III. II. By a notice dated May 6, 2009 BCCL had fixed June 3, 2009 as the last date for payment of balance coal value and the writ petitioners admittedly not having tendered payment by the last date, BCCL did not act illegally or in an arbitrary manner in forfeiting the earnest money deposited by the writ petitioners. III. BCCL had, in its counter affidavit, demonstrated before the learned Judge the extent of losses suffered by it because of the failure of the writ petitioners to take delivery of coal purchased by them and such loss could have been recovered from the forfeited earnest money; but because of the direction contained in the impugned judgment and order, BCCL is left without remedy. 5. Mr. Bose relied on the decisions of the Supreme Court reported in (2006) 10 SCC 236 [Noble Resources Ltd. v. State of Orissa] and (2015) 9 SCC 433 [State of Kerala v. M.K. Jose] to contend that entertainment of the writ petition by the learned Judge was not proper and that the parties should have been relegated to the alternative forum for resolution of the dispute. The circumstances in which a forfeiture of earnest money could be made was sought to be highlighted by relying on the decision reported in (1969) 3 SCC 522 [Shree Hanuman Cotton Mills Ltd. v. Tata Aircraft Ltd.] 6. Mr. Bose was also critical of ECR filing an affidavit supporting the claim of the writ petitioners. According to him, there has been collusion between the writ petitioners and ECR, as a result whereof ECR was subsequently brought on record of the writ petition for the purpose of supporting the writ petitioners and opposing ECL. ECR even without being served with a copy of the counter affidavit of BCCL to the writ petition proceeded to deal with BCCL's counter affidavit by filing a separate affidavit. This, he submitted, was rather unusual since the learned Judge had not even called upon ECR to deal with BCCL's counter affidavit; hence, the learned judge by accepting the version of ECR as correct exercised jurisdiction not in accordance with law. 7. It was also contended by Mr. Bose that the deponent of ECR's affidavit was on the verge of retirement and such affidavit, supporting the claim of the writ petitioners, clearly establishes an unholy nexus between the said deponent and the writ petitioners. 7. It was also contended by Mr. Bose that the deponent of ECR's affidavit was on the verge of retirement and such affidavit, supporting the claim of the writ petitioners, clearly establishes an unholy nexus between the said deponent and the writ petitioners. He urged that the affidavit ought not to be looked into at all. 8. Mr. Bose, accordingly, prayed that the impugned judgment and order be set aside. 9. Per contra, Mr. Bandyopadhyay, learned senior advocate for the writ petitioners contended that an arbitrary decision of BCCL was made the subject matter of challenge in the writ petition and, therefore, notwithstanding existence of an alternative forum, the writ petition was well-nigh entertainable by the writ court. Availability of an alternative remedy, according to him, is not an absolute bar for entertaining a writ petition and in the given circumstances the learned Judge was perfectly justified in trying it. 10. Our attention was drawn by Mr. Bandyopadhyay to correspondence exchanged by and between BCCL and Coal India Limited (hereafter CIL) and it was urged that CIL having advised BCCL to return the earnest money in favour of the writ petitioners, BCCL acted in a highhanded manner by forfeiting the earnest money. It was contended that the order of the CIL directing return of earnest money to the company resulted in the writ petitioners acquiring a right, which could not have been given a go-bye without even recording a single reason and giving an opportunity to them to place their version. 11. Next, it was contended by Mr. Bandyopadhyay that payment having been tendered by the writ petitioners on June 8, 2009 and accepted by BCCL, such acceptance amounted to waiving the last date for tendering payment and having returned the balance coal value of Rs. 1,36,02,000.00, there was no good reason why earnest money should be forfeited despite the advice of CIL to the contrary. 12. The affidavit of ECR was then placed to demonstrate that it was not ECR but BCCL who was to be faulted for non-placement of railway rakes to enable loading of coal purchased by the company. 13. Inviting our attention to the terms and conditions of the e-Auction notice, more particularly clause 9 and other related clauses, Mr. 12. The affidavit of ECR was then placed to demonstrate that it was not ECR but BCCL who was to be faulted for non-placement of railway rakes to enable loading of coal purchased by the company. 13. Inviting our attention to the terms and conditions of the e-Auction notice, more particularly clause 9 and other related clauses, Mr. Bandopadhyay contended that BCCL invoked the power of forfeiture of earnest money travelling beyond the same and such action too being arbitrary, the learned Judge was justified in interfering with the impugned decision. 14. Reliance was placed by Mr. Bandyopadhyay on the decisions of the Supreme Court reported in AIR 2003 SC 2120 [Harbanslal Sahnia v. Indian Oil Corpn. Ltd.], AIR 2008 SC 336 [BCPP Mazdoor Sangh v. N.T.P.C.], (2004) 3 SCC 553 [ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd.], (2004) 7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. v. State of Bihar], (2007) 9 SCC 593 [Popcorn Entertainment v. City Industrial Development Corporation], (2011) 5 SCC 697 [Union of India v. Tantia Construction (P) Ltd.], (2016) 10 SCC 46 [Gujarat Maritime Board v. Larsen Toubro Infrastructure Development Projects Ltd.], in support of the contentions that the learned Judge did not commit any error in entertaining the writ petition despite the dispute arising out of a contract by and between BCCL and the writ petitioners and despite the availability of a forum for arbitration. 15. We have heard the learned advocates for the parties and perused the materials on record. 16. Before we proceed to consider the rival contentions and give our decision, it is considered useful to take note of a decision of the Supreme Court of fairly recent origin, which was not cited by the parties. Upon surveying most of the earlier decisions on the point of entertainment of writ petitions in a dispute arising out of contractual rights and obligations, the Supreme Court in the decision reported in (2015) 7 SCC 728 (Joshi Technologies International Inc. v. Union of India) has summarized the law. The relevant paragraphs from such decision are quoted below: "69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. v. Union of India) has summarized the law. The relevant paragraphs from such decision are quoted below: "69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations. 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. 70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction. 70.9. The distinction between public law and private law element in the contract with the State is getting blurred. 70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary. 70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. 70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. **** We shall keep these principles in mind while proceeding to decide the appeal. 17. Normally, a writ court would be loath to interfere in contractual disputes is settled law. It is, however, clear on perusal of the aforesaid extracts from the decision in Joshi Technologies (supra) that, in exceptional cases a writ court may be justified in entertaining a writ petition even though alternative remedy by way of a dispute resolution mechanism embodied in the agreement between the parties is either available or a civil suit could be instituted for damages for breach of contract. No doubt, on facts of the present case, the agreement provided resolution of dispute by arbitration and, in fact, the writ petitioners had also intended that the inter se disputes be resolved by arbitration; unfortunately though, BCCL did not show any interest. The writ petitioners thereafter invoked the writ jurisdiction of this Court. A learned Judge admitted the writ petition on February 15, 2012. Learned advocate appearing for the respondent had objected to the jurisdiction of the writ court to entertain the writ petition in view of a forum selection clause contained in the scheme for e-Auction. While calling for affidavits, the learned Judge observed that the aspect of jurisdiction shall be considered at the time of hearing of the writ petition. What we now have before us is a reasoned decision given by the learned Judge on the merits of the dispute. 18. The point that immediately strikes us is, to what extent interest of justice would be sub-served by relegating the parties to arbitration without considering whether the learned Judge was justified in returning the findings he did. If indeed we are ad idem with such findings, yet, we choose to uphold the technical objection of BCCL that a forum before the arbitral tribunal were available, the entire exercise undertaken by the learned Judge as well as by us to hear the parties on the merits of the dispute would be exercises in futility. We shall, therefore, focus on the preliminary objections to the maintainability of the writ petition raised by Mr. Bose and if it is found that the exercise undertaken by the learned Judge did not require examination of any disputed question of fact, that some degree of public law element is present, that the impugned decision is the result of proper appreciation of the materials on record and that proper application of mind by the learned Judge is apparent, we may not hesitate to reject the objections although it could be quite possible for the writ petitioners to obtain a similar decision before the arbitrator. It cannot be gainsaid that the Courts exist to administer substantial justice and if over a long drawn process of litigation before the high court a party is successful in proving its point, it would require the aggrieved party to set up a cast-iron case to have the decision upturned and to have the party successful before the writ court to be relegated to the alternate forum. After all, we are exercising the jurisdiction conferred by clause 15 of the Letters Patent and it is trite that in an intra court appeal, the appellate court does not interfere unless of course the decision challenged before it meets the test of perversity or when the decision is clearly wrong and not when it is not right. 19. Let us begin our endeavour by ascertaining whether public law element is involved in the lis between BCCL and the writ petitioners, for, in the absence of public law element, a dispute arising out of a contract may not be entertained at all. It is an undisputed fact that upon nationalization, CIL is the owner of all the coal mines in the country and acts through its various subsidiaries which includes BCCL. After adequately providing for and/or meeting the needs of the power houses throughout the country, the quantity of coal that is found to be surplus is sold through a single window to the public at large and the buyers have to participate in the spot e-Auction system. In fact, the scheme has been framed by CIL for simple and transparent process of marketing and distribution of coal through rail movement/mode. The quantum of money collected by CIL and/or its subsidiaries, though sale of coal, is obviously utilized for public purposes. A prospective buyer of coal has to abide by the terms and conditions of the scheme and receives the coal purchased by it only after two authorities answering the definition of State as in Article 12 of the Constitution (CIL/subsidiary on the one hand and the railways/zonal railway on the other), act in tandem. If indeed lack of cohesion and coordination between the two State authorities arises, there is real possibility of the buyers' interests being put to jeopardy. If indeed lack of cohesion and coordination between the two State authorities arises, there is real possibility of the buyers' interests being put to jeopardy. In the backdrop of these facts, should there be an allegation from the end of the buyer that a subsidiary of CIL (here BCCL) without existence of any cogent reason has proceeded to forfeit earnest money in an arbitrary and highhanded manner, can it be said in such circumstances that there is absence of public law element and the writ petition does not call for a judicial review of the impugned administrative action? The answer to the question has to be in the negative; therefore, the test enunciated in paragraph 69.1 of the decision in Joshi Technologies (supra) stands satisfied. 20. We next take up the point of maintainability of the writ petition before the writ court having regard to existence of a forum for determination of the inter se disputes and differences between the parties by arbitration. It is true that the company by its letters dated September 7 and 22, 2011 had called upon BCCL to refer the dispute in terms of clause 11.12 of the scheme for decision by an arbitral tribunal. So far it appears from the materials on record, the parties did not progress a step further for having a decision by the arbitral tribunal. It was, thereafter, that the writ jurisdiction was invoked by the company. Having regard to the decision rendered by the Supreme Court in S.J.S. Business Enterprises (P) Ltd. (supra), upon the reading the law laid down in an old decision reported in (1964) 2 SCR 879 (Chandra Bhan Gosain v. State of Orissa), to the effect "that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief", we do not see reason to hold bearing in mind section 21 of the Arbitration and Conciliation Act, 1996 that the writ court was not right in entertaining and trying the writ petition. 21. Now, we move on to the most important aspect of the debate. Was the BCCL justified in what it did? 22. Since the dispute centres round forfeiture of earnest money, the particular clause authorizing BCCL to forfeit earnest money needs to be read first. Clause 9 being the relevant clause is quoted hereunder: "9. 21. Now, we move on to the most important aspect of the debate. Was the BCCL justified in what it did? 22. Since the dispute centres round forfeiture of earnest money, the particular clause authorizing BCCL to forfeit earnest money needs to be read first. Clause 9 being the relevant clause is quoted hereunder: "9. Forfeiture of EMD: - The EMD submitted by the successful Bidders will be liable for forfeiture in the following cases:- 9.1 If after completion of e-Auction, a successful bidder fails to make payment for the coal value including all other charges within the stipulated time, the proportionate EMD equivalent to the failed quantity shall be forfeited subject to the provisions at Clause 6.4 and/or Clause 6.5 of this document, and/or, 9.2 If the successful bidders does not lift the booked quantity within the stipulated validity period, the proportionate Security Deposit @ Rs. 500/- or Rs. 400/- per Tonne (as converted from the EMD amount) for the unlifted quantity would be forfeited. Such forfeiture shall be made only if the balance Unlifted Quantity is equal or more than a Truck Load i.e. 9 or 10 tonnes as applicable. Such forfeiture, however, would not take place if the coal company has failed to offer full or part of the successful bid quantity within the validity period. In such cases again, no forfeiture would take place if the balance quantity is less than a truck load/rake load. 9.3 If the Buyer cancels the order/Rake after booking, the EMD @ Rs. 500/- or Rs. 400/- per tonne (as the case may be) shall be forfeited for the rake cancelled." Clause 9 refers to clauses 6.4 and 6.5; hence the same are also quoted below: "6.4 In case of road supplies, once the coal value is deposited by way of demand drat/pay order, drawn in favour of the concerned coal company, along-with the debit advice issued by the bank, certifying that the DD/pay order has been issued, by debiting the account of the concerned Buyer, Sale/Delivery orders shall be issued within seven days by the coal company after encashment of buyer's financial instrument. In case of successful bidders, if the coal value is deposited for less than the allotted Quantity but not below 50% of the allotted quantity or, 50 tonne whichever is higher, the coal company shall accept the payment for the said amount and forfeit the EMD for the failed quantity. However if the buyer fails to deposit the coal value for at least 50% of the allotted quantity or 50 tonnes whichever is higher then the entire EMD of the allotted quantity shall be forfeited. 6.5 However, a successful bidder whose allotted quantity is only 50 tonnes will be allowed to deposit coal value for minimum 90% i.e. 45 tonnes within the stipulated period of 7 days without which the amount shall not be accepted. In such event they shall be permitted to deposit the balance fractional amount, limited to 10% of the total coal value of 50 tonne, within the subsequent period of 3 (three) working days. In spite of this, if they fail to deposit full coal value of 50 tonne (minimum bid quantity), EMD for entire 50 tonne shall be forfeited." Clause 6.7 also authorizes BCCL to forfeit earnest money and the same is quoted below: "6.7 In case of Buyers who have booked their rail programme through BG, a notice for deposition of coal value by way of DD/Pay order, will be displayed on the notice board of the coal company, at least three working days in advance before the expected date of offer to the Railways for allotment. The Buyer will be accordingly required to deposit DD/Pay Order along with the debit advice to the tune of BG involved in the programme, within 48 hours of such notice. In the event of non-deposition of 100% coal value by the Bidder in terms of Clause-6.7 above, the consent given against rake programme will be withdrawn by the coal company and EMD as per e-Auction scheme will be forfeited." These clauses no doubt confer power on BCCL to forfeit the earnest money in certain situations but the case before us presents peculiarities, sight of which cannot be lost. 23. In ECR's counter to the counter affidavit of BCCL, it is inter alia pleaded as follows: "(e) It would thus be evident from the above that the loading performance of Gareria Pilot during the material period was extremely poor which was attributable to BCCL only. 23. In ECR's counter to the counter affidavit of BCCL, it is inter alia pleaded as follows: "(e) It would thus be evident from the above that the loading performance of Gareria Pilot during the material period was extremely poor which was attributable to BCCL only. The Railway had no role to play in that and the matter was duly intimated to BCCL by Railway requesting them to improve the loading performance for getting further allotment against the programme they had got sanctioned from the Director, Rail Movement, Railway Board, Kolkata. Copies of such correspondence are annexed hereto and marked with the letter 'R-3 and R-4'. (f) Inspite of receipt of such correspondence, BCCL did not improve the loading performance. (g) Thus due to the poor loading performance of BCCL, the sanctioned programme of the writ petitioners i.e. rake numbers BCCL/NC/34- 35/April 2009 lapsed for which the Railways cannot be held responsible in any manner 28.04.2009 from 15.05.2009 onwards when 11 rakes already allotted for loading during 29.04.2009 to 11.05.2009 were lying as arrear for loading by BCCL on account of poor loading performance and 12 rakes were pending for issuing allotment order by the Railways. The 11 allotted rakes lying as arrear for loading were loaded by BCCL during 17.05.2009 to 23.07.2009. Subsequently, 5 more rakes were allotted for loading during 15.05.2009 to 09.06.2009 which were loaded by BCCL during 30.07.2009 to 07.09.2009. The matter was duly intimated to BCCL by Railway vide letter No. CAM/Allotment/2009/22 dated 22.05.2009 in reply to their letter No.BCCL/SandM/PS/F-10/3616, dated 21.05.2009, the copies of which are enclosed herewith marked as annexure 'R-3' and 'R-4' respectively. But, the BCCL did not improve loading performance in spite of the request made by the Railway knowing that if loading performance will not be improved the Railway will not accept the offer for issuing allotment against the entire sanctioned programme within the date of validity for allotment and the sanctioned programme will be lapsed. Consequently, the sanctioned programmes of the petitioner i.e. rake Nos. BCCL/NC/33-34/April'2009 were not allotted within validity date" 24. The contents of ECR's affidavit no doubt place BCCL in an utterly disadvantaged and unenviable position. Usually counter affidavit is filed to deal with the writ petition by the respondent(s). A counter affidavit by a respondent to a counter affidavit of a co-respondent could be unusual but a writ court is not bound by technicalities. The contents of ECR's affidavit no doubt place BCCL in an utterly disadvantaged and unenviable position. Usually counter affidavit is filed to deal with the writ petition by the respondent(s). A counter affidavit by a respondent to a counter affidavit of a co-respondent could be unusual but a writ court is not bound by technicalities. If materials are placed before it by a respondent (against which no relief is sought for) which, in effect, demolishes the defence of the main contesting respondent, it would not be in the interest of justice to discard such counter affidavit. After all, it is not too frequent an occurrence that a zonal railway would squarely put the blame on a subsidiary of CIL. Howsoever vociferously Mr. Bose might contend that the counter affidavit of ECR should not be looked into, we have failed to find logic in his contention. Why would ECR support the case of the writ petitioner's How would it gain by blaming BCCL? Is it not too preposterous that a zonal railway would side with a private party without any reason whatsoever? We are inclined to the view that the role of ECR is quite significant in the sense that being a neutral party, it has provided inputs which might not have been available if the legal battle were confined only between the writ petitioners and BCCL. It is clear as crystal that BCCL is to be blamed for the situation in which it finds itself, having failed to load coal according to the pre-fixed programme and thereby failing to keep the promise that it had made to the company. The counter affidavit of ECR is a vital piece of document which facilitated a decision on merits by the learned Judge and we are ad idem with His Lordship that such affidavit has provided appropriate materials on consideration whereof a proper decision could be reached. We thus reject Mr. Bose's contention that the counter affidavit of ECR is not worthy of being looked into. 25. We have also failed to comprehend BCCL's attempt to cast aspersion on the deponent of the counter affidavit of ECR. The fact that he was 57 years old on the date of affirmation leads us to nowhere. What was suggested is that the deponent on the verge of his retirement, acting in collusion with the writ petitioners, had shifted the blame on BCCL. The fact that he was 57 years old on the date of affirmation leads us to nowhere. What was suggested is that the deponent on the verge of his retirement, acting in collusion with the writ petitioners, had shifted the blame on BCCL. We do not think, based on the materials before us, that the deponent was more inclined to make a fortune out of any deal to support the cause of the writ petitioners. We are sure that the submission made by Mr. Bose was more out of desperation apart from anything else and BCCL was not at all justified in casting aspersions on the integrity of the deponent. 26. It would now be worthwhile to look into some of the correspondence on record, exchanged by and between BCCL and the company as well as by and between BCCL and CIL. 27. In response to the company's request for release of EMD, BCCL wrote back on May 24, 2010 to the following effect: "Please refer to your letter dated 17.03.10 and 16.4.10 regarding non-refund of EMD against the lapsed rake at Gararia siding. In this connection, we have to inform you that the case has been referred to CIL because there is no guideline in E-Auction Scheme for refund of EMD when the offered rakes are not picked up by the Railways for allotment. You are aware that BCCL had offered the rake for allotment but the same could not be picked up by the Railways for allotment. Hence the responsibility lies with the consumer and the Railways. However, the case has been referred to CIL for obtaining guideline regarding refund of EMD in such cases. This is for your information and needful please." (underlining for emphasis by us) 28. As indicated in the said letter, the issue relating to forfeiture of earnest money in respect of e-auction rake (by rail mode) was indeed under consideration of CIL. However, the case has been referred to CIL for obtaining guideline regarding refund of EMD in such cases. This is for your information and needful please." (underlining for emphasis by us) 28. As indicated in the said letter, the issue relating to forfeiture of earnest money in respect of e-auction rake (by rail mode) was indeed under consideration of CIL. By a letter dated August 28, 2010, the Chief General Manager (S&M), CIL wrote to the Chairmen-cum-Managing Directors of the subsidiaries of CIL to the following effect: "Enclosed please find a copy of letter no BCCL/S&M/PS/F-EA/654 dated 18.1.2010 from Director (Tech) BCCL to Director (Tech) of your subsidiary companies seeking information as to whether EMDs submitted by the concerned bidders are forfeited or not at your end in cases where offers made by your company are not picked up by railway for allotment. BCCL is yet to get any information from your end to this effect till date and as a result BCCL is not being able to decide as to what action is to be taken in this regard. There are a few such cases in BCCL and EMDs are not being released as there is no specific guideline in the extant e auction scheme as to how such cases are to be dealt. Since concerned bidders have been regularly insisting for release of EMDs, this issue was deliberated in FDs meeting of BCCL when it was decided that opinion from other subsidiary companies be obtained so that a view can be taken. Since no information was received by BCCL from your end, the matter has been referred to CIL for issuance of specific guideline in such cases. As BCCL has noted that no specific guideline has been provided in the Scheme to this effect, CIL is of the view that since allotments were not made by Railways within validity period against offers made by BCCL for which bidders in no way are responsible, question of forfeiture of EMD should not arise. Thus in such cases EMDs need to be refunded. Since in the extant Scheme this issue has not been directly addressed, certain modification need to be made in this Spot E-Auction Scheme so as to bring about necessary clarity at the operating level both on the part of Coal Company concerned and the bidders. Thus in such cases EMDs need to be refunded. Since in the extant Scheme this issue has not been directly addressed, certain modification need to be made in this Spot E-Auction Scheme so as to bring about necessary clarity at the operating level both on the part of Coal Company concerned and the bidders. Before modification is made in the scheme, you are requested to let us know as to what action you have been taking in the past in the event such occasions arose and your views as to how such issue should be addressed so that necessary modification in this regard can be made in the scheme for the sake of clarity. The Matter may be treated on priority as BCCL/CIL have been getting repeated representation from the concerned bidders for refund of EMDs and matter is yet to be resolved." (underlining for emphasis by us) 29. This was followed by another letter dated December 30, 2010 of the Chief General Manager (S&M), CIL addressed to the Chief General Manager (S&M), BCCL which is quoted below: "Please refer to letter no. CMD:ES:F-3(B)/10/1103 dated the 08th/21st May 2010 from CMD, BCCL to Chairman, CIL seeking specific guidelines in case of lapsed rakes arising out of non-allotment by Railways. The issue of refund/forfeiture of EMD in the event of non-allotment of rakes by Railways within the validity period against offers made by the subsidiary companies in respect of sale of coal by e-Auction was discussed in detail in the CGM/GM(S&M)s' Co-ordination Meeting held on 01/10/2010. It was generally agreed that EMD in such eventuality where the rail programme gets lapsed due to non-allotment by Railways, should not be forfeited and the entire amount should qualify for refund. A proposal to this effect was put up for consideration and approval of competent authority, which has been duly approved by the competent authority. While necessary amendment in the provisions of the existing e-Auction Schemes is in the process of being incorporated, we would request you to take necessary action for refund of EMDs in respect of similar such cases which may have occurred in the past and where EMDs have not been refunded. This issues with the approval of the competent authority." (underlining for emphasis by us) 30. Despite the aforesaid advice of CIL, the Chairmen-cum-Managing Directors of the subsidiaries of CIL did not agree to refund of earnest money deposit. This issues with the approval of the competent authority." (underlining for emphasis by us) 30. Despite the aforesaid advice of CIL, the Chairmen-cum-Managing Directors of the subsidiaries of CIL did not agree to refund of earnest money deposit. It appears from a letter dated August 16, 2011 issued by the Chief General Manager, CIL that in a meeting held at the instance of BCCL on July 16, 2011, the matter was discussed and the following decisions were taken: "The proposal for refund of EMD against lapsed rake under e-Auction Scheme forwarded by BCCL was placed before CMDs. The CMDs, after detailed deliberation at length did not agree to refund the EMD. Hence, it was decided that the letter no. 805 dated 30/12/2010 issued by CGM (S&M) should be treated as withdrawn." In view thereof, instructions were issued by such letter dated August 16, 2011 to treat the letter dated December 30, 2010 as withdrawn and to take necessary action accordingly. 31. From the extracts of the correspondence referred to above, it seems to be clear that CIL was in favour of refund of EMD in favour of the company owing to absence of specific guideline in the scheme to the effect that earnest money could still be forfeited even though the railways fail to make allotments within the validity period of offers, and was of the clear view that the bidders in no way being responsible question of forfeiture of earnest money would not arise and the situation calls for a refund; but at the instance of BCCL a different stand had been taken in the meeting held on July 16, 2011 when refund of earnest money were refused without, however, recording any reason, far less cogent reason, in support of such refusal. 32. In our considered opinion, the decision to refuse ought to have been supported with reason. In the absence thereof, the decision stands vitiated because it records the ipse dixit of the subsidiaries on the face of a reasonable decision taken by CIL favourable to the buyers. It defies logic as to how CIL could succumb to the subsidiaries. 33. Be that as it may, it would be evident from the letter of BCCL dated May 24, 2010 that the rakes offered by BCCL for allotment "could not be picked up by the Railways for allotment". It defies logic as to how CIL could succumb to the subsidiaries. 33. Be that as it may, it would be evident from the letter of BCCL dated May 24, 2010 that the rakes offered by BCCL for allotment "could not be picked up by the Railways for allotment". This stand of BCCL has been contradicted by ECR in its counter affidavit. It is not for the writ court to examine which of the two versions is correct, but there can be no gainsaying that the company has become the victim of a tug of war between BCCL and ECR. We do not think that any disputed question of fact is involved which would require evidence to be led before a competent authority prior to giving a decision one way or the other on the company's claim. A fact does not become disputed merely because a party to a legal proceeding wishes to dispute such fact. There must be material placed before the Court to show that the case set up by a party ought not to be accepted bearing in mind the materials placed to contradict such case and the situation calls for leading of evidence to arrive at a definite conclusion. That is not the case here. 34. The position on facts would have entirely been different if BCCL or MJunction (acting on behalf of BCCL as service provider), as the case may be, had not accepted the sum of Rs. 1,36,02,000.00 on June 8, 2006. We are in agreement with Mr. Bandyopadhyay that acceptance of such sum is suggestive of a waiver on the part of the BCCL to insist on payment by the last date i.e. June 3, 2006. We further hold, relying on the observation of CIL recorded in its letter dated August 28, 2010 in response to a clarification sought for by BCCL, that the various clauses of the agreement extracted supra conferring authority on BCCL to forfeit earnest money has no application on facts and in the circumstances and that an arbitrary administrative decision resulted in a forfeiture which is unsustainable. 35. We, therefore, see no reason to interfere with the impugned judgment and order. The same is upheld and the appeal stands dismissed, without any order as to costs. 36. The amount of Rs. 35. We, therefore, see no reason to interfere with the impugned judgment and order. The same is upheld and the appeal stands dismissed, without any order as to costs. 36. The amount of Rs. 78,00,000/- plus interest @ 12% per annum secured by BCCL with the Registrar General of this Court in terms of the order dated March 8, 2017 of the coordinate Bench, together with accrued interest shall be released in favour of the company within a month of an approach being made in this behalf.