KWALITY CATERERS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appeal impugns the order dated 25th November, 2011 of the learned Single Judge disposing of W.P.(C) No. 5041/2011 preferred by the appellant by relegating the appellant to the Courts at Kolkata, inter alia on the ground that it is more convenient for the Courts at Kolkata to deal with the controversy, than this Court. THE learned Single Judge in this regard has relied on Sterling Agro Industries Ltd. v. Union of India 181 (2011) DLT 658 where a five-Judge Bench of this Court has held that the Court may refuse to exercise jurisdiction under Article 226 if the jurisdiction is invoked in a malafide manner or if, depending upon the factual matrix, it is found that it is more convenient for some other Court to deal with the controversy. THE learned Single Judge for the said reason did not deal with the merits of the controversy. We also, as such have heard the counsel for the appellant only on the said aspect.

(2.) THE factual matrix is as follows. THE Indian Railways Catering and Tourism Corporation Limited (IRCTC) having its office within the jurisdiction of this Court, had in or about the year 2005 invited bids for operation and management of catering and on board services inter alia in respect of train no.s 8603-04 & 2817-18 known as Jharkhand Swarna Jayanti Kranti Express Train running between Delhi and Hatia (Ranchi, Jharkhand) Railway Station. THE appellant being the highest bidder was awarded the contract and an agreement dated 29th July, 2005 was executed at Delhi between the appellant and IRCTC. THE said contract inter alia provided for arbitration of disputes and provided for the jurisdiction of the Courts situated in the State of Delhi. THE said contract was for a period of five years, expiring in July, 2010.

(3.) IN view of the changed Policy and to provide for the interregnum, IRCTC vide its letter dated 22nd June, 2010 extended the term of the contract (supra) which was to expire on 28th July, 2010, till 2nd January, 2011. However, on 24th December, 2010 a Tripartite Agreement was signed at Kolkata between the South Eastern Railways, IRCTC and the appellant whereunder in accordance with the Catering Policy 2010, the contract (supra) which was earlier between the IRCTC and the appellant was assigned by IRCTC in favour of South Eastern Railways, Kolkata. The said Tripartite Agreement inter alia provided the terms and conditions as provided in the agreement dated 29th July, 2005 signed between M/s Kwality Caterers and IRCTC and extension letter dated 22nd June, 2010 shall form the basis of this agreement. However, the following amendments shall prevail over the earlier agreement. The amendments inter alia were that the power of termination of the contract was to be with the South Eastern Railways, the power of inspection and imposition of fines was also to be with the South Eastern Railways and the appellant was to pay all dues w.e.f. 24th December, 2010 to South Eastern Railways. By yet another amendment, the power of appointment of sole arbitrator which under the initial agreement (supra) was of IRCTC, was vested with the Chief Commercial Manager, South Eastern Railways.