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2022 DIGILAW 297 (TRI)

Namita Paul v. Food Corporation of India

2022-07-12

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Initially a petition was filed under article 226 of the Constitution of India for issuing of writ in the nature of certiorari quashing the letter No. G.12/NERFR/MOVT/DC/Agt/Part/09/14597 dated 22.12.2015 issued by the respondent No. 2 relating to fixation of purported demurrage charge in compliance to judgment and order dated 27.02.2015 passed in WP(C) 79 of 2010. The petitioner has also urged to issue writ in the nature of mandamus directing the respondents to refund an amount of Rs. 32,47,763 deducted from the bills of the petitioner in connection with Order of appointment vide No. Cont/9/NEFR/TC/CHNG-AGT/2008 dated 17.11.2008 to the petitioner with interest. 2. Thereafter, by the judgment and order dated 27.04.2021, this high court dismissed the writ petition being WP(C) 111 of 2017 stating as follows:- 25. In these circumstances, this court is of the view that the respondents cannot further proceed for any recovery in terms of the final order dated 22.12.2015 [Annexure-8 to the writ petition] as they have failed to produce any evidence in their Money Suit (Counter-claim). For absence of evidence, the said counter-claim has been dismissed. It has been stated even the petitioner has instituted the suit for release of the security deposit with other compensation. Since the entire dispute is, was in the session of the civil court/appellate court, the petitioner ought not have approached this court for directing the respondents to release the security deposit. The release of security deposit including the deducted sum of Rs. 32,47,763/- relating to the Contract No. Cont.9/NEFR/TC/CHNG-AGT/2008 dated 17.11.2008 is the subject matter of M.S. 27 of 2010 as found by this court, on scrutiny and hence, the writ petition is not maintainable by the petitioner. This court have studied the judgment dated 11.05.2016 wherein it has been observed by the Civil Judge, Senior Division, Court No. 1 that the plaintiff is entitled to recover security deposit, but not the compensation as sought for. For absence of evidence, the counter-claim has been dismissed. If the writ petition is maintainable, but for the decision in the Money Suit 27 of 2010, the present writ petition is bound to be dismissed and accordingly the same is dismissed. However, this is not the confirmation of the judgment dated 11.05.2016 delivered in Money Suit 27 of 2010, confirmation can be done by the appellate court only. If the writ petition is maintainable, but for the decision in the Money Suit 27 of 2010, the present writ petition is bound to be dismissed and accordingly the same is dismissed. However, this is not the confirmation of the judgment dated 11.05.2016 delivered in Money Suit 27 of 2010, confirmation can be done by the appellate court only. The said suit was filed as the defendants, the respondents herein, forfeited the security deposit of 54,000,00/- of the plaintiff. Even the petitioner has stated that the counter-claim of the respondents was for recovery of the compensation on account of loss and risk including the demurrage charges. Even the respondents may not recover any further amount from the petitioner as their counterclaim has been dismissed by the court for absence of evidence. However, if any appeal has been filed by the respondents the decision of the Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala shall remain subject to the outcome of such appeal. 3. The petitioner after lapse of time approached this court by way of filing a review petition No. 38 of 2021 wherein it had been stated by the petitioner that the petitioner as the plaintiff did not seek any relief for refund of Rs. 32,47,763/-, which amount was admittedly deducted as compensation for demurrage suffered by the FCI respondents. But this court was under the impression that such relief is covered by the judgment dated 26.02.2021 delivered in RFA No. 14 of 2016. Having perused the record, this court by the order dated 16.11.2021 passed in Review petition 38 of 2021 recalled the judgment dated 27.04.2021 delivered in WP(C) 111 of 2017. 4. It is stated by Mr. A. Bhowmik, learned counsel for the respondents that within six months from the passing of judgment and order dated 27.02.2015 delivered in WP(C)79 of 2010, the respondents have given notice dated 21.08.2015 to the petitioner giving details of demurrage charges and asked the petitioner to submit a representation, if any. According to the Mr. Bhowmik, counsel for the respondents, that notice has not been annexed with the writ petition in hand which amounts to suppression of facts. 5. It is further stated by Mr. Bhowmik, learned counsel for the FCI- respondents that after giving due opportunity to the petitioner for representation, the final order dated 22.12.2015 was passed. Mr. According to the Mr. Bhowmik, counsel for the respondents, that notice has not been annexed with the writ petition in hand which amounts to suppression of facts. 5. It is further stated by Mr. Bhowmik, learned counsel for the FCI- respondents that after giving due opportunity to the petitioner for representation, the final order dated 22.12.2015 was passed. Mr. Bhowmik, further submitted before this court that in the representation submitted by the petitioner, the petitioner has raised some disputed facts whereby the petitioner said he has supplied the trucks and the petitioner has attributed negligence to FCI. Therefore, the matter involves disputed question of facts and according to Mr. A Bhowmik, learned counsel for the FCI, negligence cannot be dealt in writ petition. Further, he prays for relegating the matter to Civil court since the matter comes under the purview of civil nature. 6. In reply, Mr. Raju Datta, counsel for the petitioner said that out of Rs. 90,64,910/- as the demurrage charges, the respondents have deducted Rs. 32,47,763/- and for the remaining amount the respondents filed a money suit. Subsequently that suit was dismissed for lack of evidence. 7. According to Mr. Datta, counsel for the petitioner the respondents failed to ascertain any loss suffered by FCI due the fault of the petitioner. In addition, Mr. Datta, counsel for the petitioner submitted that due to the failure on the part of the respondent with regard to ascertaining the loss, if any, done by the petitioner, the petitioner is entitled for deduction amount which has been recovered by FCI. Moreover, it is also submitted by Mr. Datta, counsel for the petitioner that the Annexure-A with the notice dated 21.08.2015 creates ambiguity as it does not speak clearly if the figures are referred to the petitioner or not. 8. Heard. 9. After perusing the records so placed before this court, this court is of the opinion that the impugned order dated 22.12.2015 is liable to be set aside. Moreover, this court remands back the matter to the respondents to pass a detailed speaking order in terms of WP(C)79 of 2010 explaining the amount which the petitioner is liable to pay to the respondents and at the same time the liability of the respondents towards the petitioner, if any. Moreover, this court remands back the matter to the respondents to pass a detailed speaking order in terms of WP(C)79 of 2010 explaining the amount which the petitioner is liable to pay to the respondents and at the same time the liability of the respondents towards the petitioner, if any. It is needless to say that the said order shall be passed within two months from the date of receipt of the copy of this order. 10. With the observation as indicated above, this writ petition stands disposed of.