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2025 DIGILAW 669 (GAU)

Rungta Projects Ltd. v. Coal India Ltd.

2025-04-24

N.UNNI KRISHNAN NAIR, VIJAY BISHNOI

body2025
JUDGMENT & ORDER : N. Unni Krishnan Nair, J. Heard Mr. M. Z. Ahmed, learned senior counsel, along with Ms. B. Dutta, learned senior counsel, assisted by Mr. A. M. Dutta, learned counsel, appearing on behalf of the appellants in WA No. 321/2018 and WA No. 338/2018, and for the respondents in WA No. 287/2022; as well as Mr. Pandey Neeraj Rai, learned counsel, along with Mr. A. Goyal, Mr. A. Choudhury, and Mr. D. Rathi, learned counsels, appearing on behalf of the appellant in WA No. 287/2022, and for the sole respondent in WA No. 321/2018 and WA No.338/2018. 2. The above-noted writ appeals have been preferred by the appellants, herein, presenting a challenge to the common Judgment & Order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013, and WP(c)5585/2015. The appellant in WA No. 287/2022, has presented an additional challenge to the order, dated 19.06.2019, passed by the learned Single Judge dismissing Review Petition No. 88/2019, thereby, rejecting the prayer of the appellant, therein, for grant of interest with regard to the dues receivable by it. 3. The facts leading to the institution of the above-noted writ appeals, is briefly noticed, as under: 3.1 WRIT APPEAL NO. 338/2018: The appellants, herein, had on 28.03.2008, issued a Notice Inviting Tender(NIT), for production of carbonaceous shale(CL) and removal of hard shale(HL) in accordance with the requirement of safety regulations and transportation of coal to the railway siding as per the schedule with regard to 4(four) locations i.e. Tirap(East), Tirap(West), Tikak(East) and Tikak OCM. The sole respondent in WA No. 338/2018, in pursuance of the said Notice Inviting Tender(NIT), submitted its bid for all the 4(four) locations for the works involved. The bid of the sole respondent being found to be suitable; the appellants, herein, proceeded to award the contracts for the work, in question, for the above-noted 4(four) locations to the sole respondent. The dispute arising in the present proceeding, pertains to the contract awarded to the sole respondent, herein, in relation to Tikak(East) and Tirap(West) locations. Accordingly, the facts pertaining to the said locations are being noticed. The appellants, herein, had issued work orders, dated 18.08.2008, in respect of Tikak(East) and Tirap(West) locations to the sole respondent for the work, in question, and the work involved, was to be completed within a period of 3(three) years w.e.f. 11.07.2008. Accordingly, the facts pertaining to the said locations are being noticed. The appellants, herein, had issued work orders, dated 18.08.2008, in respect of Tikak(East) and Tirap(West) locations to the sole respondent for the work, in question, and the work involved, was to be completed within a period of 3(three) years w.e.f. 11.07.2008. The contract value for Tikak(East) location was fixed at Rs. 7353.42 lakhs while the contract value for Tirap(West) location was fixed at Rs. 6663.24 lakhs. The sole respondent could not complete the work involved with regard to Tikak(East) and Tirap(West) locations within the period of 3(three) years as allotted which had come to an end on 10.07.2011. The sole respondent had made a request for grant of extension of time for completion of the work involved with regard to the said 2(two) locations vide communication, dated 08.07.2011, without imposition of liquidated damages and/or penalty. The appellants, herein, had required the sole respondent to accept the extension of period of time for completion of the work with certain conditions which was declined by the sole respondent. Thereafter, the sole respondent had stopped the work and had also removed the machineries utilized for the work, in question, at the said 2(two) locations. The sole respondent, thereafter, had approached the appellants, herein, for closure of the contracts involved for the said 2(two) locations viz. Tikak(East) and Tirap(West) and for making arrangements for carrying-out the final measurements and for clearing its outstanding dues. During the pendency of the applications preferred by the sole respondent; the appellants, herein, proceeded to issue a communication, dated 12.06.2013, with the Heading “Settlement of dues” and therein, by highlighting that the sole respondent was unable to complete the production in Tikak(East) and Tirap(West) locations and there being a huge shortfall; the pending dues of the sole respondent, was withheld. Accordingly, by invoking the provisions of Clause 6.2 of the Notice Inviting Tender(NIT), which pertains to the consequence required to be suffered by the Contractor on failure to achieve the targetted projection by imposition of liquidated damages to the maximum of 10% of the contract value; the appellants, herein, proceeded to impose a liquidated damage to the tune of Rs. 1247.48 lakhs upon the sole respondent, herein, and also withheld an amount of Rs. 978.34 lakhs due to it. The sole respondent was required to deposit the balance amount of Rs. 1247.48 lakhs upon the sole respondent, herein, and also withheld an amount of Rs. 978.34 lakhs due to it. The sole respondent was required to deposit the balance amount of Rs. 269.14 lakhs to meet up the said liquidated damages so imposed with regard to the default on his part pertaining to the Tikak(East) and Tirap(West) locations. Being aggrieved, the sole respondent had approached the writ Court by way of instituting a writ petition being WP(c)6867/2013. 3.2 WRIT APPEAL NO. 321/2018: The appellants, herein, had floated a Notice Inviting Tender(NIT) on 22.08.2011, for production of carbonaceous shale(CL) and removal of hard shale(HL) in accordance with the safety regulations and transportation of coal to the railway siding as per the schedule in Tirap(East) location. The sole respondent being found to be most suitable, was awarded the contract for the work involved at Tirap(East) location by the appellants, herein. The letter of acceptance was issued to the sole respondent by the appellants, herein, and the same was to be effective w.e.f. 01.01.2012, for a period of 3(three) years till 31.12.2014. The work involved not having been completed; the sole respondent, vide communication, dated 28.08.2014, approached the appellants requesting for extension of the period of the contract without levy of liquidated damages. The appellants, herein, vide communication, dated 22.12.2014, allowed extension of time of the contract, for 6(six) months, upto 30.06.2015, to the sole respondent, herein. However, vide communication, dated 21.05.2015, the appellants, herein, by highlighting the default found on the part of the sole respondent in carrying-out the work, in question; proceeded to issue a communication, dated 26.06.2015, terminating the contract with immediate effect by invoking the provisions of Clause 6.2.2, 6.2.3 and 10(a), 10(b) and 10(c) of Section 4(conditions of contract) of the General terms and conditions of the Notice Inviting Tender (NIT). The said communication, dated 26.06.2015, was followed by a further communication, dated 02/03.09.2015, imposing upon the sole respondent, herein, liquidated damages at the rate of 10% of the contract value along with forfeiture of the security deposit submitted by the sole respondent in cash as well as in the form of bank guarantee. In total, the penalty so imposed upon the sole respondent, works out to Rs. 17,04,33,361.45. After making provision for security deposit so made by the sole respondent; it was required to furnish the balance amount of Rs. 10,79,81,803.50 forthwith. In total, the penalty so imposed upon the sole respondent, works out to Rs. 17,04,33,361.45. After making provision for security deposit so made by the sole respondent; it was required to furnish the balance amount of Rs. 10,79,81,803.50 forthwith. Being aggrieved, the sole respondent had approached the writ Court by way of instituting a writ petition being WP(c)5585/2015. 3.3 The writ petitions being WP(c)6867/2013 and WP(c)5585/2015, were taken up for consideration by the learned Single Judge and the said writ petitions were disposed of vide common judgment & order, dated 19.07.2018, interfering with the notices issued to the sole respondent, herein, dated 12.06.2013, 26.06.2015, and 03.09.2015. The learned Single Judge proceeded to require the appellants, herein, to release to the sole respondent, herein, its dues after making necessary deductions therefrom against the quantum of coal covered by the contract which remained un- extracted and/or un-transported to the siding. The learned Single Judge, however, held that the imposition of liquidated damages with forfeiture of security deposit and bank guarantee, was not justified. 3.4 WRIT APPEAL NO. 287/2022: The sole respondent, herein, in WA No. 321/2018, and WA No.338/2018, who was the petitioner in WP(c)6867/ 2013 and WP(c)5585/2015, being aggrieved by the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013, had instituted a review petition being Review Pet. No. 88/2019, praying for authorization of interest with regard to the dues receivable by it. The said review petition was taken up for consideration by the learned Single Judge and on such consideration, was dismissed vide order, dated 19.06.2019, by holding that the writ Court having directed the Coal India Ltd. to settle the outstanding dues of the sole respondent after making necessary adjustments without mentioning about interest from which it was implicit that the writ Court had not acceded to the prayer of the sole respondent for a direction to pay interest. 3.5 Being aggrieved by the said judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015; the Coal India Ltd., as appellants, herein, have assailed the same by way of instituting the writ appeals being WA No. 321/2018 and WA No. 338/2018. 3.5 Being aggrieved by the said judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015; the Coal India Ltd., as appellants, herein, have assailed the same by way of instituting the writ appeals being WA No. 321/2018 and WA No. 338/2018. 3.6 The sole respondent in WA No. 321/2018, and WA No. 338/2018, has instituted a writ appeal being WA No. 287/2022, being aggrieved by the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015, as well as being aggrieved by the order, dated 19.06.2019, passed by the learned Single Judge in Review Petition No. 88/2019[in WP(c)6867/2013]. 4. The challenge being to the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015, in the above-noted writ appeals; the operative portion, thereof, being relevant, is extracted hereinbelow: “ (24) Before proceeding further it would be apposite to extract the notice dated 12.6.2013 impugned in WP(C) No.6867/2013, which is reproduced hereunder: “ Sub: Settlement of dues. Dear Sir, This refers to your letter No.RPL/NEC-CIL/12-13 dated 23/02/13 addressed to Director(Tech.), CIL, Kolkata, with regard to the above. You have been awarded production of carbonaceous shale and removal of hard shale in four patches of NEC, Tirap East, Tirap West, Tikak OCM and Tikak East vide Work Order Nos.NEC/GM/08/09/109 dated 18.08.2008, NEC/GM/08/09/110 dated 18.08.2008, NEC/GM/08/09/111 dated 18.08.2008, NEC/GM/08/09/112 dated 18.08.2008 respectively, out of which target production of Tikak OCM and Tirap East was achieved by you and there was a huge shortfall of production in Tikak East and Tirap West. The reason of withholding your payment from the bill of four patches is as under: There was a huge shortfall of production of Tikak East and Tirap West as enclosed in Annexure A&B resulting which payment of last and final bill amounting to Rs 76.63 lakhs relating to Tikak East and Tirap West was withheld by NEC management with a view to set off the liquidate damages @ 10% on contract value, payable by you on shortfall of production of Tikak East and Tirap West. The payment of Rs 53 lakhs relating to lead bill of Tikak is pending for approval of CIL, Kolkata. The payment of Rs 53 lakhs relating to lead bill of Tikak is pending for approval of CIL, Kolkata. A sum of Rs 591.45 lakhs and Rs 257.26 lakhs deducted towards security deposit and retention money from the bill of four patches, is kept with us for adjustment of liquidate damages payable by you for non fulfillment of production target.(Annexure – C). Recovery made from your running bill of ongoing contract could not be refunded for huge shortfall of production at Tikak East and Tirap West. The diesel escalation bill for drilling job could not be paid, since the NIT is silent with regard to calculation of diesel escalation of drilling job. (Annexure – D). Since we are guided by NIT, the diesel escalation bill was paid as terms of the NIT. (Annexure-D). Payment of other claim is not understood by us. You are requested to mention specifically non payment of your claim. As per Clause 6.2 of the NIT, failure to achieve targeted production results liquidate damages to the maximum of 10% of contract value. It is noticed that you have failed to achieve target production in both Tikak East and Tirap West, resulting which, liquidated damages to the tune of Rs 1247.48 is payable by you against our total withheld amount of Rs 978.34 lakh. You are requested to deposit balance amount of Rs 269.14 lakh immediately as per NIT”. (25) A perusal of this notice would reveal that as per the assessment of the respondents there was a huge shortfall in production in the Tikak East and Tirap West collieries for which the balance amount of contractual dues amounting to Rs 978.34 lakh was withheld. In addition to this, the security deposit and the retention money were also forfeited. Invoking clause 6.2 of the NIT it was stated that liquidated damages for the shortfall in production was assessed at Rs 1247.48 lakh and after adjusting the contractual dues withheld, the amount payable by the petitioner stood at Rs 269.14 lakh. (26) On identical lines the termination notice dated 26.6.2015 was issued by the respondents, which is the subject-matter of challenge in WP(C) No.5585/2015. As per this notice, though extension was granted to the petitioner up to 30.6.2015, the progress of work up to the date of termination, that is 26.6.2015, was at 97.11 per cent. (26) On identical lines the termination notice dated 26.6.2015 was issued by the respondents, which is the subject-matter of challenge in WP(C) No.5585/2015. As per this notice, though extension was granted to the petitioner up to 30.6.2015, the progress of work up to the date of termination, that is 26.6.2015, was at 97.11 per cent. It was stated that 100 per cent completion could not be achieved by the petitioner due to non-deployment of adequate man and machinery which resulted in great loss to the respondents. Therefore, clause 6.2 of the NIT was invoked to terminate the contract following which the notice dated 3.9.2015 was issued as per which the security deposit and the bank guarantee of petitioner stood forfeited and after adjusting the same with the liquidated damages assessed by the respondents a figure of Rs 10,79,81,803.50 was arrived at by the respondents to be paid by the petitioner. (27) Before proceeding further it would be apposite to extract clauses 6.2 and 6.3 of the NIT, which are reproduced hereunder: “ 6.2 If the contractors fails to maintain the required progress in terms of the agreed time and progress chart or to complete the work and clear the site on or before the contract or extended date of completion, he shall without prejudice to any other right or remedy available under the law to the company on account of such breach, pay as compensation/Liquidated Damaged @ half percent (1/2%) of the contract price per week of delay. The aggregate of such compensation/compensations shall not exceed 10(ten) percent of the total value as shown in the contract. This will also apply to items or group of items for which separate period of completion has been specified. The amount of compensation may be adjusted or setoff against any sum payable to the contractor under this or any other contract with the company. 6.3 In the event of such termination of the contract as described in clauses 6.2.2 or 6.2.3 or both, the company, shall be entitled to recover L.D. up to ten percent(10%) of the contract value and forfeit the security deposit made by the contractor besides getting the work completed by other means at the risk and cost of the contractor”. 6.3 In the event of such termination of the contract as described in clauses 6.2.2 or 6.2.3 or both, the company, shall be entitled to recover L.D. up to ten percent(10%) of the contract value and forfeit the security deposit made by the contractor besides getting the work completed by other means at the risk and cost of the contractor”. (28) A careful examination of the clause 6.2 of the NIT would reveal that if the contractor fails to maintain the required progress in terms of the agreed timeline or fails to complete the work and clear the site on or before expiry of the contract period or the extended date of completion, he shall, without prejudice to any other right or remedy available under the law to the company on account of such breach, pay compensation/liquidated damages at the rate of ½ per cent of the contract price per week of delay though the aggregate of such compensation shall not exceed 10 per cent of the total value shown in the contract. The amount of compensation may be adjusted or set off against any sum payable to the contractor either under the contract in question or under any other contract with the company. Clause 6.2 can be invoked in a situation where the contractor fails to maintain the required progress as per the timeline or fails to complete the work and clear the site on or before expiry of the contract. (29) In the first case, out of the four collieries petitioner had extracted the required amount from two collieries, Tirap East and Tikak OCM. Insofar Tikak East and Tirap West are concerned the notice dated 12.6.2013 is silent on the quantity that had remained un- extracted and embedded in the earth. The contract was terminated on the date of expiry of the contract. To that extent there was no delay by the petitioner in continuing with the contract work beyond expiry of the contract period in which case compensation/ liquidated damages at the rate of ½ per cent of the contract price per week of delay would be attracted. Therefore, invoking clause 6.2 by respondents appears to be questionable. (30) Similar is the position in the second case. Therefore, invoking clause 6.2 by respondents appears to be questionable. (30) Similar is the position in the second case. Here, before expiry of the extended period on 30.6.2015 the contract was terminated on 26.6.2015 when the percentage of achievement by the petitioner as per assessment of the respondents themselves was at 97.11. The letter dated 26.6.2015 also does not disclose whether respondents had considered the explanation of the petitioner submitted on 4.6.2015. There was no continuation of work beyond the contract period so to attract liquidated damages at the rate of ½ per cent of the contract price per week of delay. Therefore, here also invocation of clause 6.2 appears to be questionable. If that be so, calculation of liquidated damages as per clause 6.3 of the NIT conveyed to the petitioner vide notice dated 3.9.2015 would also not be justified. (31) Section 73 of the Contract Act, 1872 provides for compensation for loss or damage caused by breach of contract. In sum and substance this provision says that when a contract has been broken the party who suffers by such breach is entitled to receive from the party who has broken the contract compensation for any loss or damage caused to him thereby. As per the second part of Section 73, such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. (32) Section 74 of the Contract Act, 1872 deals with compensation for breach of contract where penalty is stipulated for. When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named, or, as the case may be, the penalty stipulated for. (33) Sections 73 and 74 of the Contract Act, 1872 have been the subject-matter of several landmark decisions of the Supreme Court, one of the earliest being in the case of Fateh Chand vs. Balkishan Dass, AIR 1963 SC 1405 . (33) Sections 73 and 74 of the Contract Act, 1872 have been the subject-matter of several landmark decisions of the Supreme Court, one of the earliest being in the case of Fateh Chand vs. Balkishan Dass, AIR 1963 SC 1405 . Supreme Court, referring to Section 74 of the Contract Act, 1872, held that the measure of damages in case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. While reiterating that compensation has to be reasonable which has to be awarded or determined according to settled principles, Supreme Court held that award of compensation cannot be justified when in consequence of the breach no legal injury at all had resulted because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things or which the parties knew when they made the contract to be likely to result from the breach. (34) This position was reiterated in Maula Bux vs. Union of India, 1969(2) SCC 554 . It was emphasized that where loss in terms of the money can be determined the party claiming compensation must prove the loss suffered by him. (35) In JG Engineers Private Limited vs. Union of India, (2011) 5 SCC 758 , Supreme Court went one step ahead and held that the question whether the other party to the contract had committed breach of contract cannot be decided by the party alleging breach. A contract cannot provide that one party will be the arbiter to decide whether he committed breach or the other party committed breach. This question can only be decided by an adjudicatory forum. (36) This court while issuing notice in the second case had taken note of the decision rendered by the Supreme Court in Gorkha Security Services vs. Govt.(NCT of Delhi), (2014) 9 SCC 105 on the point that termination of contract cannot be done without complying with the principles of natural justice. Paragraph 22 of Gorkha Security Services(supra) is extracted hereunder: “ 22. The High Court has simply stated that the purpose of show cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. Paragraph 22 of Gorkha Security Services(supra) is extracted hereunder: “ 22. The High Court has simply stated that the purpose of show cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order to fulfill the requirements of principles of natural justice, a show cause notice should meet the following two requirements viz: i) The material/grounds to be stated which according to the department necessitates an action; ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit. We may hasten to add that even if it is not specifically mentioned in the show- cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement”. (37) Supreme Court in Kailash Nath Associates vs. Delhi Development Authority, (2015) 4 SCC 136, surveyed the entire legal position pertaining to the specific provisions of Sections 73 and 74 of the Contract Act, 1872 and summed up the law on compensation for breach of contract u/s 74 as under: “ On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:- 43.1 Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. 43.2. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. 43.2. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. 43.3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. 43.4. The section applies whether a person is a plaintiff or a defendant in a suit. 43.5. The sum spoken of may already be paid or be payable in future. 43.6. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 43.7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application”. (38) As for invocation of Section 74 as held by the Supreme Court in Kailash Nath(supra) damage or loss caused to one of the parties to the contract is a sine qua non for applicability of this Section. Insofar the present case is concerned, all that happened is that certain quantity of coal has remained embedded in the earth which could not be extricated by the petitioner or certain quantity of coal could not be transported to the siding from the colliery. This quantity of coal has remained in the custody of the respondents. Therefore it would not be correct to say that for the inability of the petitioner, for whatever reason, to complete the extraction or the transportation within the contractual period or the extended contractual period, loss or damage was suffered by the respondents and the same in any case was not quantified. Therefore it would not be correct to say that for the inability of the petitioner, for whatever reason, to complete the extraction or the transportation within the contractual period or the extended contractual period, loss or damage was suffered by the respondents and the same in any case was not quantified. Therefore, to my mind, not only invocation of clause 6.2 of the NIT was not justified, invocation of Section 74 of the Contract Act, 1872 was also not justified. Of course, respondents would be entitled to make necessary deduction from the bills submitted by the petitioner for the quantum of coal covered by the contract and which has remained un- extracted or un-transported to the siding but imposition of liquidated damages with forfeiture of security deposit and bank guarantee certainly is not justified. (39) In consequence, the notices dated 12.6.2013, 26.6.2015 and 3.9.2015 are set aside. (40) Respondents are directed to settle the outstanding dues of the petitioner after making necessary adjustment as discussed above within a period of eight weeks from the date of receiving a certified copy of this order.” 5. Assailing the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015, Mr. Ahmed, learned senior counsel, appearing for the appellants, herein, in WA No. 321/2018 and WA No. 338/2018, has submitted that the Notice Inviting Tender(NIT), in question, having provided for a liquidated damage in the provisions of Clause 6.2.2; 6.2.3 and 6.3; the sole respondent, herein, having admittedly failed to complete the work involved in the contracts awarded to it and involved in the writ petitions, in question; no error was committed by the appellants, herein, in imposing the liquidated damages upon the sole respondent along with forfeiture of its security deposit. 6. Mr. Ahmed, learned senior counsel, has further submitted that the learned Single Judge while passing the impugned judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/2015, had not appreciated the fact that the sole respondent had failed to deploy the required no. of machineries in the locations involved which had resulted in shortfall in production. 6. Mr. Ahmed, learned senior counsel, has further submitted that the learned Single Judge while passing the impugned judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/2015, had not appreciated the fact that the sole respondent had failed to deploy the required no. of machineries in the locations involved which had resulted in shortfall in production. It was further submitted by the learned senior counsel that the learned Single Judge vide the judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/2015; had failed to appreciate the fact that the appellants, herein, had been issuing communications to the sole respondent to deploy adequate machineries as per the commitment made so as to avoid shortfall of production. 7. Mr. Ahmed, learned senior counsel, has further submitted that given the nature of the dispute arising before the learned Single Judge; the writ Court ought not to have entered into the issue and the sole respondent was required to have been directed to approach the civil Court of competent jurisdiction for redressal of his grievances pertaining to the breach of the contract if so existing. The learned senior counsel has also submitted that the sole respondent ought to have taken recourse to the provisions for arbitration incorporated in the contract and accordingly, the conclusions reached by the learned Single Judge in the matter vide judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/2015, would mandate an interference from this Court. 8. Mr. Ahmed, learned senior counsel, has further submitted that the sole respondent had not challenged the provisions of Clause 6.4 of the Notice Inviting Tender(NIT), and the said clause being in force; the action on the part of the appellants, herein, in imposing liquidated damages in terms of the provisions of Clause 6.2, was valid and in accordance with the terms and conditions of the contract, in question. The learned senior counsel has also submitted that the contract, in question, having provided for the course of action required to be followed by the appellants, herein, in the case of a default on the part of the sole respondent(contractor); the imposition of the penalty in the form of liquidated damages as well as forfeiture of the security deposit, would not have called for an interference by the learned Single Judge. In the above premises, Mr. In the above premises, Mr. Ahmed, learned senior counsel, has, accordingly, submitted that the impugned judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015, would mandate an interference by this Court. 9. Per contra, Mr. Rai, learned counsel for the sole respondent, in WA No. 321/2018 and WA No. 338/2018, has submitted that the learned Single Judge vide the judgment & order, dated 19.07.2018, passed in WP(c)6867/2013 and WP(c)5585/2015, had rightly interfered with the impugned notices, dated 12.06.2013, 26.06.2015, and 03.09.2015, in-as- much as, it was neither permissible in the existing facts and circumstances of the matter, for the appellants, herein, to invoke the provisions of Clause 6.2 of the Notice Inviting Tender(NIT), nor, to invoke the provisions of Section 74 of the Indian Contract Act, 1872. The learned counsel has further submitted that the learned Single Judge after having concluded that the notices, in question, were not sustainable; failed to direct the Coal India Ltd. to release the outstanding dues to the sole respondent by authorizing to it, due interest for the delay occasioning in releasing such dues. 10. Mr. Rai, learned counsel, has submitted that the interference made by the learned Single Judge with the notices impugned in the above-noted writ petitions as well as the conclusions reached by the learned Single Judge that the provisions of Clause 6.2 of the Notice Inviting Tender (NIT), and the provisions of Section 74 of the Indian Contract Act, 1872, would have no application in the matter; the learned Single Judge ought to have directed the Coal India Ltd. to release the dues of the sole respondent by imposing interest for the delay occasioning in releasing such dues. 11. Mr. Rai, learned counsel, has further submitted that the sole respondent, herein, being aggrieved with the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015, to the extent of the learned Single Judge not authorizing to it, interest for the delay occasioning in releasing of its dues by the Coal India Ltd., had instituted a review petition being Review Petition No. 88/2019 in WP(c)6867/2013. However, the learned counsel has submitted that the learned Single Judge without examining the contentions raised therein, in the review petition in its proper perspective, proceeded vide order, dated 19.06.2018, to dismiss the said review petition, thereby, rejecting the prayer of the sole respondent for being authorizing interest for the delay occasioning in releasing of its dues by the Coal India Ltd. and accordingly, being aggrieved, the sole respondent in WA No. 321/2018 and WA No. 338/2018, had instituted WA No. 287/2022. 12. We have heard the learned counsels appearing for the parties and also perused the materials available on record. 13. For the sake of convenience, the parties to the proceedings involved, are referred to as per their placement in WA No. 338/2018. 14. It is an admitted position that the sole respondent in WA No. 321/2018 and WA No. 338/2018, had failed to complete the work involved in the contracts awarded to it during the currency of the contract and/or during the period of its extension. The contracts awarded to the sole respondent in the above-noted 2(two) writ appeals were terminated on its tenure coming to an end and/or before the completion of the period of extension granted to it. The learned Single Judge in the impugned judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/ 2015; had noticed the provisions of Clause 6.2 and 6.3 of the Notice Inviting Tender(NIT) and on noticing the same, had concluded that with regard to the contract awarded to the sole respondent insofar as Tikak(East) and Tirap(West) locations were concerned, the contract was terminated on the date of expiry of the same and accordingly, to that extent, there was no delay by the sole respondent in continuing with the contract work beyond the expiry of the contract period. Similar conclusions were also drawn by the learned Single Judge with regard to the contract involved in the proceedings of WP(c)5585/2015. Similar conclusions were also drawn by the learned Single Judge with regard to the contract involved in the proceedings of WP(c)5585/2015. The provisions of Clause 6.2 having mandated that in the event, the contractor fails to maintain the required progress in terms of the agreed time and progress chart, or, to complete the work and clear the site on or before the contract or extended date of completion, the contractor shall without prejudice to any other right, or, remedy available under the law to the company on account of such breach, pay as compensation/liquidated damage @ half percent[1/2 %] of the contract price per week of delay. It was, however, provided that the aggregate of such compensation shall not exceed 10(ten) percent of the total value as shown in the contract. 15. With regard to the Tikak(East) and Tirap(West) locations, the sole respondent having not continued with the contract after the initial tenure, thereof, had come to an end; the learned Single Judge had rightly held that the provisions of Clause 6.2 of the Notice Inviting Tender(NIT), by the appellants, herein, was not justified. Further, the imposition of the liquidated damages by invocation of Section 74 of the Indian Contract Act, 1872, by the appellants, herein, was also examined by the learned Single Judge and had, by relying on the decision of the Hon'ble Supreme Court rendered in the case of Kailash Nath Associates v. Delhi Development Authority , reported in (2015) 4 SCC 136 , proceeded to conclude that the damage or loss caused to one of the parties to the contract, is sine qua non for applicability of this section. The learned Single Judge, thereafter, proceeded to hold that in both the writ petitions, all that had happened was that certain quantity of coal has remained embedded in the earth which could not be extricated by the sole respondent, or, certain quantity of the coal could not be transported to the siding from the colliery. The learned Single Judge had further held that the quantity of the coal had remained in the custody of the appellants, herein. The learned Single Judge had further held that the quantity of the coal had remained in the custody of the appellants, herein. The learned Single Judge basing on the said conclusions, proceeded to hold that it would not be correct to say that for the inability of the sole respondent, for whatever reason, to complete the extraction, or, transportation within the contractual period, or, the extended contractual period, loss or damage was suffered by the appellants, herein. Further, that the loss was not quantified. Accordingly, it was held that neither, invocation of Clause 6.2 of the Notice Inviting Tender(NIT), in question, nor, Section 74 of the Indian Contract Act, 1872, was justified. 16. Having perused the materials available on record, we do not find that the learned Single Judge had committed any error in concluding that the provisions of Clause 6.2 of the Notice Inviting Tender(NIT), as well as the provisions of Section 74 of the Indian Contract Act, 1872, was not applicable to the facts involved in the matters. 17. Having drawn the above conclusions, we also have to notice the clarifications given by the learned Single Judge in the impugned judgment & order, dated 19.07.2018, in WP(c)6867/2013 and WP(c)5585/2015, to the effect that the appellants, herein, would be entitled to make deductions from the bills submitted by the sole respondent, herein, for the quantum of the coal covered by the contract and which had remained un-extracted or un-transported to the railway siding. The learned Single Judge had recognized the right of the appellants, herein, to claim compensation of the un-extracted coal which was required to be extracted by the sole respondent in terms of the contracts awarded to it. However, it is to be noted that the amount of coal which had remained un-extracted, would be required to be first quantified by the appellants, herein, and thereafter, the value, thereof, would be permissible to be deducted from the dues receivable by the sole respondent. 18. In the present case, we find that the appellants, herein, had not carried-out the said exercise for determination of the quantum of coal which had remained un-extracted and/or un-transported to by the railway siding concerned, by the sole respondent, herein, out of the total coal required to be extracted by it in terms of the contracts awarded to it. 19. In the present case, we find that the appellants, herein, had not carried-out the said exercise for determination of the quantum of coal which had remained un-extracted and/or un-transported to by the railway siding concerned, by the sole respondent, herein, out of the total coal required to be extracted by it in terms of the contracts awarded to it. 19. Accordingly, in view of the above position, while not interfering with the judgment & order, dated 19.07.2018, passed by the learned Single Judge in WP(c)6867/2013 and WP(c)5585/2015; we hereby provide that the appellants, herein, in WA No. 321/2018 and WA No. 338/2018, shall proceed to quantify the coal which had remained un-extracted and/or un- transported to the railway siding by the sole respondent, herein, out of the coal required to be extracted by it in terms of the contracts awarded to it and on such quantification being made, the value, thereof, be determined. The value of the coal which had remained un-extracted or un-transported to the railway siding, on being so determined; it would be permissible to the appellants, herein, to recover the same from the dues receivable by the sole respondent. 20. The aforesaid exercise be carried-out by the appellants, herein, in WA No. 321/2018 and WA No. 338/2018, within a period of 8(eight) weeks from today and thereafter, release to the sole respondent, herein, the dues receivable by it. 21. Having drawn the above conclusions, we would now consider the grievance raised by the sole respondent, herein, as the appellant, in WA No. 287/2022. 22. The quantification of the coal which had remained un-extracted and/or un-transported to the railway siding, by the Coal India Ltd. not having been carried-out; it would not be permissible for authorizing to the sole respondent, herein, interest for the delay occasioning in releasing of its dues. We having already required the Coal India Ltd. to carry-out the exercise for determination of the quantity of the coal which had remained un-extracted and/or un-transported to the railway siding, within a period of 8(eight) weeks from today; we are of the considered view that without quantifying the loss sustained by the appellants, herein, in WA No. 321/2018 and WA No. 338/2018, it would not be permissible to authorize any interest to the appellant in WA No. 287/2022. Accordingly, the prayer made by the sole respondent, herein, as appellant, in WA No. 287/2022, would not merit an acceptance. 23. In view of the above conclusions drawn by us; the writ appeals being WA No. 321/2018 and WA No. 338/2018, stands disposed of while the writ appeal being WA No. 287/2022, stands dismissed. However, there shall be no order as to costs.