D.M. ENTERPRISES Vs. COAL INDIA LTD.

JUDGEMENT

(1.) THE subject -matter of challenge in the instant application under Article 226 of the Constitution of India is a telex message which is Annex. '2' to the petition whereby supplies of coal by road to the Petitioner was kept in abeyance till further advice.

(2.) THE matter was very hotly contested by the parties and numerous decisions were cited at the Bar although the subject -matter of the points in issue does not necessitate the discussion of the plethora of cases cited at the Bar.

(3.) THE short facts leading to the case are as follow: Pursuant to an advertisement made by Coal India Ltd. in the year 1986 for installation of a stockyard at Barasat, 24 -Parganas (North), the Petitioners were ultimately appointed as the transport contractors -cum -dump operators for Coal India Ltd. in respect of the stockyard at Barasat, 24 -Parganas (North) (hereinafter referred to as the stockyard) on and from January 1, 1987. A formal contract was entered into between the parties and Clause 16 of the terms and conditions of the said formal contract provides that any dispute or difference arising out of or in any way touching or concerning the contract shall be referred to the sole arbitrator to be nominated by the Chief of Marketing, Coal India Ltd., Calcutta. In terms of the said contract, the Petitioner No. 1 was required to transport coal from Raniganj Colliery to its Barasat stockyard both by road and by Rail, and the Petitioner No. 1 was to keep custody of the stock at the stockyard as also to load coal to the individual customers as per directions of the Regional Sales Manager of the Respondent No. 1. The coal stock at the stockyard however remained the absolute property of the Respondent No. 1 at all material times. It may further be mentioned that the tender documents culminating in the contract, inter alia, provided that the Respondent No. 1 reserved the right of cancel/terminate, reduce the period of contract by giving two months' notice without assigning reasons whatsoever and at its absolute discretion. In the tender document the Respondent No. 1 further reserved the right to recover amounts from the tenderer towards any shortage of coal/coke as may be found at the time to termination/cancellation and/or expiry of the tenure of the contract and for ascertaining such shortage the Respondent No. 1 could take measurement of the stock at the stockyard upon giving intimation to the tenderer in advance. It was further stated in the tender documents that the tender papers were not decisive to cover all aspects/related factors/related loss regulating the work and tenderer must ascertain those himself before submission of the tender. It was further provided in the tender documents that during transit the coal/coke both by Rail or by road would continue to be the property of the Respondent No. 1 and any shortage in such transit would be the responsibility of the tenderer and the same would be recovered from the tenderer's bill etc. It would further appear both from the tender document and the contract that the Respondent No. 1 did not guarantee or assure the tenderer of any minimum movement to the stockyard or any minimum volume of sale from the stockyard and the tenderer shall have no claim for compensation in the regard.