SOLAR INDUSTRIES (P) LTD. Vs. CENTRAL COALFIELDS LIMITED

JUDGEMENT

(1.) Petitioner is a Company incorporated under the Indian Companies Act, 1956. It has its registered office at Bokaro in the State of Jharkhand and its factory at Tendua, Dehh-on-Sone in the District-Rohtas (Bihar). It has challenged the order of the respondent Regional Manager of Central Coalfield Limited dated 30.4.2013, as contained in Annexure-12, by which the Fuel Supply Agreement (in short "the said Agreement") between the petitioner and the respondent Central Coalfield Limited (in short "C.C.L.") has been terminated by invoking the clause 15.1.5 of the said Agreement, and security deposit of petitioner in the form of bank guarantee has been directed to be forfeited in terms of clause 3.6 thereof. Prayer is also for quashing of the letter dated 30.5.2013, as contained in Annexure-13, by which the Senior Manager has written to the Branch Manager of the Allahabad Bank at Ranchi for encashment of the bank guarantee of the petitioner and remitting the amount in the account of the C.C.L., maintained in the State Bank of India. Consequent prayer is to direct the C.C.L. to release coal to the petitioner in terms of the said Agreement and to release the agreed quantity of coal to the unit of the petitioner with effect from February, 2012. On the mentioning of learned counsel for the petitioner, the matter was notified and was taken up at 2.15 pm on 1.8.2013. Interim orders were passed restraining invocation of the bank guarantee and the matter was adjourned for 5.8.2013. On 5.8.2013 orders were passed for the matter to be listed on 12.8.2013 at 2.15 pm and interim order was directed to continue. On 12.8.2013, learned counsel for the respondents raised some preliminary issues through a counter affidavit with regard to the maintainability of the writ application and prayed the matter to be fixed for 26.8.2013. The matter was thereafter taken up on 29.8.2013 on which date, on the joint prayer of learned counsels for the parties, the matter was adjourned for 9.9.2013. On 9.9.2013 learned counsel for the respondents requested the Court to hear the matter on the point of maintainability of the writ application first. Accordingly, matter was heard on the point of maintainability of the writ application.

(2.) Learned counsel for the respondents, opening his arguments, challenging the maintainability of the writ application, first submitted that, as per clause 18.4 of the Fuel Supply Agreement between the parties, vide Annexure-3, they had agreed that the High Court of Jharkhand shall have exclusive jurisdiction in all matters under the agreement. Hence, it was not open for the petitioner to challenge the termination of the said Agreement in this Court and to pray for mandamus to the respondents to resume supply of coal to its unit as per the fixed terms. He next submitted that the Headquarter of the petitioner-Company was within the jurisdiction of the Jharkhand High Court; the Fuel Supply Agreement had been entered into at a place within the jurisdiction of the same High Court; the Headquarter of the respondents was also within the same High Court and the impugned orders and letters had been issued by the authorities of the respondents from a place within the jurisdiction of the same High Court. Hence, remedy, if any, to the petitioner lay before the Jharkhand High Court and not before this Court. He next submitted that the petitioner has indulged into "forum shopping" inasmuch as it had indeed filed a writ application in the Jharkhand High Court against the same impugned orders/letters. However, when it could not get any interim orders there, it withdrew the writ application and thereafter- has filed this writ application in this Court for identical relief's. He submitted that the "forum shopping" has been deprecated by the Apex Court very strongly and which. has held it to be discouraged. In support of this submission, he has placed reliance on the judgments of the Apex Court in the case of Rajiv Bhatia v. Government of N.C.T. and Others, 1999 8 SCC 525 and the Division Bench judgment of the Madras High Court in the case of M/s. Bhanu Construction v. Andhra Bank, delivered on 7.10.2005 in W.P. Nos. 3386/2003, W.P. No. 18669/2003, W.P. No. 18670 and 18671 of 2003. He lastly submitted that the petitioner has been guilty of "suggestio falsi and suppressio veri" in its dealings in the matter before the Jharkhand High Court and this Court. He submitted that in the Jharkhand High Court I.A. No. 5345/13 was filed earlier, on the ground that inadvertently some error had occurred in the name of petitioner in the writ application. Therefore, permission was sought for to withdraw the same with liberty to file a fresh writ application with the original name. Accordingly, the writ application was dismissed as withdrawn by the learned Judge of the Jharkhand High Court on 29.7.2013, with the aforesaid liberty. Learned counsel for the respondents has produced a photocopy of the certified copy of the order-sheet of the said writ application of the petitioner. He submitted that, before 29.7.2013, petitioner had already taken steps for filing of this writ application in this Court, but this fact was completely suppressed from the Jharkhand High Court and an impression was created through the said I.A. that, with the correct name, a fresh writ application shall be filed in that court itself. But, instead of doing the same, the writ application has been filed in this Court.

(3.) Learned counsel for the petitioner tried to justify filing of this writ application in this Court, in spite of clause 18.4 of the said Agreement, as referred to by the learned counsel for the respondents, on the ground that petitioner was not having equal bargaining power. Hence, any agreement or concession, made by it in the said Agreement, cannot be a bar in exercise of extraordinary jurisdiction by this Court under Article 226 of the Constitution of India, if the claim of the petitioner otherwise merits consideration. In reply to the second objection, he referred to several documents, available on records as Annexure-4 onwards upto the impugned Annexure-12, to submit that the preliminary enquiry by the CBI on allegations of diversion and resale of the coal, inspection by vigilance team, its report, show cause notice and all other correspondences by the respondents with the petitioner, were in relation to its factory at Rohtas, within the jurisdiction of this Court. He also referred to clause 4.4 of the agreement to show that the respondents were under the agreement to supply coal directly to the factory site of the petitioner at Dehri-on-Sone. He also referred to one judgment of the learned Single Judge of this Court in the case of M/s. Bhawani Coke Industries Private Limited v. The Coal India Limited dated 29.6.2012 (C.W.J.C. No. 4578 of 2012) and submitted that the issue of jurisdiction in such matters has already been decided by this Court under identical situation. He also referred to judgments of the Apex Court in the case of L. Chandra Kumar v. Union of India & Ors., 1997 3 SCC 261; Om Prakash Srivastava v. Union of India & Anr., 2006 6 SCC 207; Rajendran Chingaraveju v. R.K. Mishra, Additional Commissioner of Income Tax & Ors., 2010 1 SCC 457. He submitted that the Apex Court has authoritatively laid down that location of registered office or isolated acts cannot be a determining factor to decide the issue of jurisdiction of a High Court under Article 226 of the Constitution of India and it is the "bundle of facts" giving rise to the cause of action which has to be taken into account to maintain a writ application in a particular High Court. He submitted that in fact the writ application filed before the Jharkhand High Court was a mistake and ill-advised. Hence, the same was withdrawn from there and this fresh writ application has been filed in this Court. He submitted that after the I.A. was filed for withdrawal of the writ application from Jharkhand High Court, under legal advice, a decision was taken to file this writ application in this Court, instead of filing fresh writ application in the Jharkhand High Court with the correct name of the petitioner. Hence, he submitted that the present writ application is maintainable in this Court and fit to be entertained on merits.