Shiv Shankar Trade Link (P) Limited v. Bharat Coking Coal Limited
2020-01-31
SANJAY KUMAR DWIVEDI
body2020
DigiLaw.ai
ORDER : Heard Mr. Jitendra Kumar Pasari, learned counsel appearing for the petitioner and Mr. Anoop Kumar Mehta, learned counsel for the respondents. 2. The petitioner has preferred this writ petition for issuing a direction upon the respondents to show cause as to why they have withheld the amount of Earnest Money Deposit without any rhyme and reason and why they have deducted the Earnest Money Deposit from the value of un-lifted coal and further prayer is made to give a direction to the respondent BCCL to immediately and forthwith pay all the deducted Earnest Money Deposit (EMD) to the petitioner with interest at the rate of 18% on the same. It is further prayed that from the year 2011 to 2014 the petitioner has purchased coal from the respondent BCCL through E-Auction and after allotment of coal lifted as per the order of the respondent BCCL, but due to the expiry of delivery order and unavailability of the coal, the petitioner was not allowed to lift the entire quantity of the allotted coal from respondent BCCL. It is also prayed that since the amount of EMD was not returned to the petitioner, the petitioner has approached the respondents many a time for redressal of his grievance and made representation and respondent BCCL used to say that EMD will be returned and all of a sudden, the respondent BCCL has forfeited the EMD by way of invoking Clause 9.2 of terms and conditions and Spot of E-Auction Scheme, 2007. Aggrieved with the said action of the respondent BCCL petitioner has filed this writ petition. 3. Learned counsel for the respondent BCCL has submitted that BCCL has rightly invoked Clause 9.2 of terms and conditions of E-Auction Scheme, 2007 He further submits that in view of Clause 11.12 of the said scheme, the writ petition is fit to be dismissed, which is quoted herein below. Learned counsel for the respondent-BCCL has submitted that the BCCL has rightly invoked Clause 9.2 of terms and conditions of E-auction Scheme, 2007. He further submits that in view of Clause 11.12 of the said scheme, the writ petition is fit to be dismissed, which is quoted herein below:- “11.12.
Learned counsel for the respondent-BCCL has submitted that the BCCL has rightly invoked Clause 9.2 of terms and conditions of E-auction Scheme, 2007. He further submits that in view of Clause 11.12 of the said scheme, the writ petition is fit to be dismissed, which is quoted herein below:- “11.12. In the event of any dispute, Bidder/Buyer is necessarily required to represent in writing to the General Manager (Sales) of the concerned coal company, who would deal with the same in a period of one month from such representation. Thereafter, if required the matter be determined by the Director-In-Charge of Marketing of the concerned coal company. Any interpretation of any clause of this will be subject to clarification by CIL, which will be deemed as firm and final. All disputes arising out of this scheme, or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996. The arbitration shall be conducted at Calcutta at a place to be notified by CIL. The arbitrator shall be appointed by the Chairman and Managing Director, CIL upon written request in this behalf. The award rendered by the Arbitrator shall be final and binding on the parties. (The place of arbitration & nomination of arbitrator be varied appropriately in view of the Coal Company involved)" 4. Learned counsel for the respondent-BCCL submits that similar matter of EMD forfeiture namely, the case of “Giriraj Garj vs. BCCL” had been filed before the co-ordinate Bench of this Court for appointment of Arbitrator being Arbitration Application No. 11 of 2016 and same had been dismissed by the Hon'ble Court and after that the matter has been travelled up to the Hon'ble Supreme Court vide Civil Appeal No. 1695 of 2019 as reported in (2019) 5 SCC 192 where the dispute has been referred to an Arbitrator. Relevant Paragraph Nos. 6 to 7.4 of the said judgment is quoted herein below:- “6. In the instant case, the learned Single Judge in the impugned order has erroneously taken the view that an arbitration clause would not stand incorporated in the individual sale orders entered into by Respondent 2 Coal Company and the appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law, etc.
The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law, etc. issued from time to time by Coal India Limited or Bharat Coking Coal Ltd. etc. As a consequence, the arbitration clause (i.e. Clause 11, 12) in the 2007 Scheme would stand incorporated in the sale orders issued thereunder. 7. Clause 7 in the sale orders falls under the "single contract case" where the arbitration clause is contained in a standard form document i.e. the 2007 Scheme, to which there is a reference in the individual sale orders issued by Respondent 2 Coal Company. 7.1. The arbitration clause in the 2007 Scheme clearly states that: "All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996.” (emphasis supplied) Russell in his commentary on arbitration has interpreted these words as follows: "Disputes "in connection with", "in relation to", or "regarding" a contract. These words, which are frequently encountered and are to be given the same meaning, were at one time given a restricted interpretation, but are now well established as having a broad meaning... They may also be sufficient to catch disputes arising under another contract related to the contract containing the arbitration clause." (emphasis supplied) 7.2. In Renusagar Power Co. Ltd. v. General Electric Co. this Court observed that expression such as "arising out of", or "in respect of", or "in connection with", or "in relation to", the contract are of the widest amplitude, and content. In Doypack Systems(P) Ltd. v. Union of India this Court observed that expression such as - "pertaining to ", "in relation to" and "arising out of", are used in the expansive sense, and must be construed accordingly. 7.3. The words "in relation thereto" used in Clause 11.12 of the 2007 Scheme indicate that the clause would apply to all transactions which took place under the 2007 Scheme. This would include the sale transactions in the present case. 7.4 In view of the above discussion, the view taken by the learned Single Judge is rroneous, and is hereby set aside.
This would include the sale transactions in the present case. 7.4 In view of the above discussion, the view taken by the learned Single Judge is rroneous, and is hereby set aside. The appeal is allowed.” In view of the above clause 11.12 of the said scheme and aforesaid judgment, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition stands dismissed with liberty to the petitioner, if so advised, to invoke the arbitration clause for redressal of his grievance. Writ petition dismissed.