(1.) The petitioner emerged as a successful bidder in an e-auction held on November 30, 2018 by respondent no.2 for sale of 489.659 metric tons (MT) of scrap materials. Accordingly, a Delivery/Sale Release Order was issued in favour of the petitioner (Annexure P-2 at page 22 of the writ petition) which indicates that the total amount paid by the petitioner to the Railways was Rs.1,27,15,886/- (without GST). The petitioner was permitted, in terms of the tender as well as the Sale Release Order, to cut the scrap material in pieces to facilitate loading. Relying on several e-Way Bills and receipts of payments made to weighbridges, the petitioner claims that altogether 434.659 MT of such scrap materials, out of the total of 489.659 MT, was delivered to the petitioner by February 9, 2019. The petitioner places reliance on several Requisition and Issue Notes issued by the concerned officials of the Railways, all of which indicate that the scarp material was delivered in part. The last such Note was issued on January 15, 2019, which also indicates that the delivery was made in part.
(2.) Relying on a Joint Note issued by the Railways and signed by the representative of the petitioner, learned counsel for the petitioner argues that, admittedly, due to earth cutting and dumping of muddy soil of the construction work which was going on, bed plate, bearing plate, bottom flange plate, etc., lying on the river bed and muddy soil could not be recovered. It was also mentioned in the said Joint Note dated February 9, 2019 that after clearing the earth covered materials if found, fresh programme for witnessing the balance quantity after obtaining necessary approval of the competent authority may be done. The note ended with the sentence: "Undersigned are undisputedly agreed to the above fact."
(3.) Subsequently, the petitioner communicated to the respondent no.2 on March 19, 2019 therein for refund of the materials which could not be recovered from the site. It was indicated in the said communication that the materials which could not be recovered was approximately of 55 MT. There are subsequent communications by the petitioner to respondent no.2, reiterating such claim for delivery of due quantity, in the alternative for refund for such undelivered amount, at the earliest. The petitioner has been consistently claiming in several letters that the due materials amounted to 55 MT, which claim has been reiterated in the pleadings of the writ petition itself. The petitioner, thus, prays for a direction upon the respondents to deliver the balance 55MT of scrap materials, in the alternative to refund the sale value together with GST, TCS and interest.