Gauhati High Court
M/S. Ghar Construction And Anr vs North East Frontier Railway And 4 Ors on 22 April, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/15
GAHC010261622017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1494/2017
1:M/S. GHAR CONSTRUCTION and ANR.
M.G. PATH, CHRISTIAN BASTI, G.S. ROAD, GUWAHATI, DIST. KAMRUP M,
ASSAM, REP. BY ITS ATTORNEY SRI DILIP DAS, S/O. LT. PARSU RAM DAS,
R/O. PHULOGURI, P.O. MAZBAT, P.S. MAZBAT, BTAD, UDALGURI, ASSAM.
2: M/S SREE STEEL
HAVING ITS OFFICE CHAVIPOOL
GUWAHATI
DIST. KAMRUPM
ASSAM
REPRESENTED BY ITS PROPRIETOR SRI DINESH PRASAD SHAH
S/O. SRI CHARIBHUJ SHAH
R/O. CHAVIPOOL
GUWAHATI
DIST. KAMRUPM
ASSAM
VERSUS
1:NORTH EAST FRONTIER RAILWAY and 4 ORS.
MALIGAON, GHY., REP. BY ITS GENERAL MANAGER, N.F. RAILWAY HEAD
QUARTER, MALIGAON, GUWHATI-11.
2:THE CONTROLLER OF STORE
N.F. RAILWAY HEAD QUARTER
GUWAHATI-781011
KAMRUPM
ASSAM.
3:THE DEPUTY CHIEF MATERIAL MANAGER
N.F. RAILWAY
PANDU
Page No.# 2/15
GUWAHATI-12.
4:THE DIVISIONAL RAILWAY MANAGER W
RANGAPARA
N.F. RAILWAY.
5:THE SENIOR SECTION ENGINEER PWAY
N.F. RAILWAY
MAZBAT
BTAD
UDALGURI
ASSAM
Advocate for the Petitioner : MR.K K GOSWAMI
Advocate for the Respondent : DR.B N GOGOI
Linked Case : WP(C) 4010/2017
1:M/S. KUNDU ENTERPRISE and ANR.
REPRESENTED BY ITS PROPRIETOR SRI SANKAR KUNDU
S/O. SRI GOPAL KUNDU
TRIANGULAR COLONY
PANDU ANANDA NAGAR
GUWAHATI-12
DIST. KAMRUPM
ASSAM.
2: M/S GHAR CONSTRUCTION
M.G. PATH
CHRISTIAN BASTI
G.S. ROAD
GUWAHATI
DIST. KAMRUPM
ASSAM
REPRESENTED BY ITS ATTORNEY SRI BWSWN DAIMARI
S/O. SAMBER DAIMARI
R/O. RANGAPARA TOWN
DIST. SONITPUR
ASSAM.
VERSUS
Page No.# 3/15
1:NORTH EAST FRONTIER RAILWAY and 2 ORS.
MALIGAON
GUWAHATI
REPRESENTED BY ITS GENERAL MANAGER
N.F. RAILWAY HEAD QUARTER
MALIGAON
GUWAHATI-11.
2:THE CONTROLLER OF STORE
N.F. RAILWAY
HEAD QUARTER
GUWAHATI-781011
KAMRUPM
ASSAM.
3:THE DEPUTY CHIEF MATERIAL MANAGER
N.F. RAILWAY
PANDU
GUWAHATI-12.
Advocate for the Petitioner : MR.S Z RAHMAN
Advocate for the Respondent : MR. B SARMA
Linked Case : WP(C) 1520/2017
1:M/S. KUNDU ENTERPRISE and ANR.
REP. BY ITS PROPRIETOR SRI SANKAR KUNDU
S/O- SRI GOPAL KUNDU
TRIANGULAR COLONY
PANDU
ANANDA NAGAR
GHY- 12
DIST.- KAMRUP M
ASSAM.
2: M/S GHAR CONSTRUCTION
M.G. PATH
CHRISTIAN BASTI
G.S. ROAD
GUWAHATI
DIST.- KAMRUP M
ASSAM
REP. BY ITS ATTORNEY SRI BWSWN DAIMARI
S/O- SAMBER DAIMARI
R/O- RANGAPARA TOWN
DIST.- SONITPUR
Page No.# 4/15
ASSAM.
VERSUS
1:NORTH EAST FRONTIER RAILWAY and 4 ORS.
MALIGAON
GUWAHATI
REP. BY ITS GENERAL MANAGER
N.F. RAILWAY HEAD QUARTER
MALIGAON
GHY- 11.
2:THE CONTROLLER OF STORE
N.F. RAILWAY
HEAD QUARTER
GUWAHATI- 781011
KAMRUP M
ASSAM.
3:THE DY. CHIEF MATERIAL MANAGER
N.F. RAILWAY
PANDU
GUWAHATI- 12.
4:THE DY. CHIEF ENGINEER / CON / RPAN
N.F. RAILWAY
RANGAPARA.
5:THE SENIOR SECTION ENGINEER
PWAY / CON / RPAN
N.F. RAILWAY
RANGAPARA.
Advocate for the Petitioner : MR.B HAZARIKA
Advocate for the Respondent : SC
NF RLY
Linked Case : WP(C) 4107/2017
1:M/S. GHAR CONSTRUCTION and ANR.
M.G. PATH
CHRISTIAN BASTI
G.S. ROAD
GUWAHATI
DIST. KAMRUP M
ASSAM
REP. BY ITS ATTORNEY SRI DILIP DAS
Page No.# 5/15
S/O LATE PARSU RAM DAS
R/O PHULOGURI
PO-MAZBAT
PS-MAZBAT
BTAD
UDALGURI
ASSAM
2: M/S SREE STEEL
HAVING IST OFFICE CHAVIPOOL
GUWAHATI
DIST. KAMRUP M
ASSAM
REP. BY ITS PROPRIETOR SRI DINESH PRASAD SHAH
R/O CHAVIPOOL
GUWAHATI
DIST. KAMRUP M
ASSAM
VERSUS
1:NORTH EAST FRONTIER RAILWAY and 2 ORS.
MALIGAON
GUWAHATI
REP. BY ITS GENERAL MANAGER
N.F. RAILWAY HEAD QUARTER
MLIGAON
GUWAHATI-11
2:THE CONTROLLER OF STORE
N.F. RAILWAY
HEAD QUARTER
GUWAHATI-781011
KAMRUP M
ASSAM
3:THE DEPUTY CHIEF MATERIAL MANAGER
N.F. RAILWAY
PANDU
GUWAHATI-12
Advocate for the Petitioner : MR.K K GOSWAMI
Advocate for the Respondent : MR. B SARMA
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
Page No.# 6/15
JUDGMENT
Date : 22-04-2019 Heard Mr. A. Deb, the learned advocate for the petitioners. Also heard Mr. B. Sarma as well as Dr. B.N. Sarma, the learned Standing Counsel for the N.F. Railway i.e. all the respondents herein.
2) The issues raised in all these four writ petitions filed under Article 226 of the Constitution of India are common, as such, they are taken up together. M/s. Kundu Enterprise is the 1st petitioner in W.P.(C) No. 1520/2017 and W.P.(C) No. 4010/2017, and the 2 nd petitioner in the said writ petitions is M/s. Ghar Construction. The 1 st petitioner in W.P.(C) No. 1494/17 and W.P.(C) No. 4107/2017 is M/s. Ghar Construction, and the 2 nd petitioner in the said two writ petitions is M/s. Sree Steel.
3) By filing W.P.(C) No. 1520/17, the petitioners are seeking quashing of the impugned order dated 10.04.2015, by which the respondents had sought to cancel the sale of lot at the risk and cost of the petitioners on failure to take delivery of scrap materials within extended delivery period, and for a further direction to the respondents to deliver the auction purchased scrap stores without charging ground rent and in addition to pay interest at the rate of 24%. During the pendency of the writ petition, the respondents had cancelled the sale and, as such, the petitioners have filed W.P.(C) No. 4010/2017 to challenge the impugned order dated 14.12.2016/ 25.03.2017, by which the respondent authorities had cancelled the sale of lot with forfeiture of earnest money/ total sale value of lot mentioned therein.
4) By filing W.P.(C) No. 1494/17, the petitioners are seeking for quashing the impugned order dated 07.05.2015, by which the respondents had sought to cancel the sale of lot at the risk and cost of the petitioners on failure to take delivery of scrap materials within extended delivery period, and for a further direction to the respondents to deliver the auction purchased scrap stores without charging ground rent and in addition to pay interest at the rate of 24%. During the pendency of the writ petition, the respondents had cancelled the sale and, as such, the petitioners have filed W.P.(C) No. 4107/2017 to challenge the impugned Page No.# 7/15 order dated 14.12.2016/ 25.03.2017, by which the respondent authorities had cancelled the sale of lot with forfeiture of earnest money/ total sale value of lot mentioned therein.
5) All the petitioners are proprietary concerns engaged in sale and purchase of railway scrap and other materials. The N.F. Railway establishment holds auction sale of scrap and other waste materials from time to time, at various places. The sale and purchase is governed by "auction notice" as well as "General Conditions of Sale of Scrap Materials Through e-Auction". The petitioner No.1 in WP(C) No. 1520/2017 and WP(C) 4010/2017 was declared as highest bidder pertaining to Lot No. RPAN-C-R-Fitting-2014-01 at Rangapara, and that in the said two writ petitions, the petitioner No.2 was declared as the highest bidder pertaining to Lot No. RPAN-C-R-Fitting-2014-03 at Rangapara. The petitioner No.1 in WP(C) No. 1494/2017 and WP(C) 4107/2017 was declared as highest bidder pertaining to Lot No. MJBT-14-15-02-MJBT, located at Mazbat, and that in the said two writ petitions, the petitioner No.2 was declared as the highest bidder pertaining to Lot No. MJBT-14-15-GVR, located at GVR Station Yard.
6) In all the cases, the payment of the balance bid amount was paid belatedly with late fine and upon payment. As pr documents annexed to these writ petitions, the sale release orders were issued as under:-
Name Bid dated Release order Delivery date
Kundu Enterprise 20.11.2014 30.12.2014 08.01.2015
Ghar Construction 20.11.2014 30.12.2014 08.01.2015
Ghar Construction 20.11.2014 29.12.2014 08.01.2015
Ghar Construction 30.10.2014 09.12.2014 18.12.2014
Sree Steel 30.10.2014 22.11.2014 18.12.2014
7) Thereafter, the petitioners had requested for deferring the delivery date for
lifting the materials, as under:-
Name Bid sheet No. Release order Delivery date
and date date re-fixed on
Page No.# 8/15
Kundu Enterprise 22/14-15/0104 dtd. 30.12.2014 20, 23 and 26 Jan'15
20.11.2014
Ghar Construction 22/14-15/0106 dtd. 30.12.2014 20, 23 and 26 Jan'15 20.11.2014 Ghar Construction 22/14-15/0072 dtd. 09.12.2015 11.12.2014 to 30.10.2014 14.12.2014 Ghar Construction 22/14-15/0107 dtd. 20.11.2014 02.01.2015 to 20.11.2014 04.01.2015 Sree Steel 22/14-15/0073 dtd. 30.11.2014 24.11.2014 to 20.11.2014 26.11.2014
8) By yet another letter served on the Railway officials on 10.01.2015, M/s. Ghar Construction and M/s. Kundu Enterprise had again requested for extending the delivery date in respect of bid-sheet No. 22/14-15/0106 and bid sheet No. 22/14-15/0104. As per Annexure-4 series in W.P.(C)4107/17, the Senior Section Engineer (P.Way/NFR) had reported to Senior DEN/III/RNY vide letter dated 15.03.2015 that delivery of materials in respect of Bid Sheet No. 22/14-15/0107 dated 20.11.2014; SRO No. 22/14-15/0193 dated 29.12.2014 as he was on sick (HOD) and that HOD period was from 16.11.2014 to 14.03.2015 and, as such, the said official was requested to sanction delivery period to the purchaser without ground rent. Similar request were made in respect of Bid Sheet No. 22/14-15/0072 dated 30.10.2014; SRO No. 22/14-15/0188 dated 09.12.2014, and Bid Sheet No. 22/14-15/0073 dated 30.101.2014; SRO No. 22/14-15/0171 dated 22.11.2014. Thereafter, vide letter dated 10.04.2015, the Senior DEN/III/RNY, NF Railway requested the Dy. CMM/PMO, NF Railway for extension of scrap delivery period without ground rent against 8 (eight) bid sheets No. 22/14- 15/0070 to 22/14-15/0076 and 22/14-15/107. Accordingly, the Dy. CMM/ Pandu, issued separate Delivery Period Extension Letters, thereby extending the delivery period with ground rent as follows, viz., (i) Bid Sheet No. 22/14-15/0104 dated 20.11.2014 period extended from 16.04.2015 to 20.04.2015 (total 112 days delay), (ii) Bid Sheet No. 22/14-15/0106 dated 20.11.2014 period extended from 16.04.2015 to 20.04.2015 (total 112 days delay), (iii) Bid Sheet No. 22/14-15/0104 dated 20.11.2014 period extended from 16.04.2015 to 20.04.2015 (total 112 days delay) and (iv) Bid Sheet No. 22/14-15/0106 dated 20.11.2014 period extended from 16.04.2015 to 20.04.2015 (total 112 days delay).
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9) Thereafter, by separate letters dated 31.07.2015, the petitioners herein by assigning reasons projected that due to the Railway Department's delay in fixing delivery date in proper time, their capital was blocked since more than seven months and if they took delivery of the lot, they will make a huge loss. Therefore, expressing their lack of interest to take delivery of the scrap materials, the Dy. CMM/PNO was requested to cancel the sale of scrap against the respective bid sheets and refund the sale value. Thereafter, by letter dated 19.02.2016, the petitioners made a joint request to accord permission to leave the stores afresh against the bid sheets referred therein without imposing any rent, penalty and/ or any damages of any nature whatsoever. Having not received any response, the petitioners herein served letter dated 02.09.2016 to waive all the ground rent charges with a request to fix a delivery date. It is further projected that the WP(C) 1520/2017 was filed 08.03.2017 and the respondents had filed their affidavit-in-opposition on 30.05.2017. Similarly, WP(C) 1494/2017 was filed on 08.03.2017 and the respondents had filed their affidavit-in-opposition on 30.05.2017. However, along with affidavit-in-opposition filed in WP(C) 1494/2017, the respondents had annexed as Annexure-8 a letter No. 22/14-15/0072/0073/1017/1014/0106 dated 14.12.2016/25.03.2017 thereby cancelling the sale of lot with forfeiture of earnest money/ total sale value. Therefore, to challenge the said letter, the petitioners had filed WP(C) 4010/2017 and WP(C) 4107/2017.
10) Both the learned counsel for the respondents, while making their respective submissions on merit on the basis of stand taken in the affidavit- in- opposition filed by the respondents, have specifically pressed for referring the parties to arbitration by stating that Clause-17 of the General Condition of Sale by e- Auction provides for arbitration. Therefore, the said issue of arbitration has also been addressed herein after. It would be relevant to refer to the provisions of Section 8 of the Arbitration & Conciliation Act, 1996.
8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. [Subs. by Act No. 3 of 2016 w.e.f. 31-12-2015].
Page No.# 10/15
11) It would be relevant to quote paragraphs 8 to 10 of the case of West Bengal State Electricity Board Vs. Shanti Conductors Private Limited, (2003) 2 GLR 76: -
8. A bare reading of Section 8 shows that for enabling a Court to invoke the provisions of Section 8, the application seeking to get the dispute referred to arbitration must be filed before the written statement is submitted.
9. In the case at hand, the application under Section 8 was made by the defendants after the written statement stood submitted. Hence, this application was not maintainable. The fact that the existence of the arbitration clause was admitted in the plaint or asserted in the written statement is immaterial inasmuch as the Court, under Section 8, can refer for arbitration a dispute pending in a civil suit only when the party or parties concerned make application for getting the dispute referred to arbitration. If despite existence of arbitration clause, the parties choose to contest the suit, the powers under Section 8 cannot be invoked.
10. In the above view of the matter, the learned trial Court was, to my mind, fully justified in declining to get the matter referred to arbitration by its order, dated 11-11-2002, aforementioned. This impugned order, therefore, needs no interference.
12) In this case although the respondents had mentioned about the existence of arbitration clause in the General Conditions of Sale by e-Auction in their affidavit-in- opposition, which amounts to submission of the first statement on the substance of dispute. But, no application under Section 8 of the Arbitration and Conciliation Act, 1996 was filed and pressed in service. Therefore, it would deem that the respondents had chosen to contest this writ petition despite existence of arbitration clause in the General Conditions of Sales of Scrap Material through e-auction (Annexure-9 of the writ petition). It is no more res integra that in appropriate cases the writ court under Article 226 of the Constitution of India can interfere in the contractual matters if action of the State and its instrumentality is violative of equality clause enshrined in Article 14 of the Constitution of India or if actions of the respondents are accentuated with bias and malice. The aforesaid proposition finds expressions in decisions rendered in the case of ABL International & anr. Vs. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553, Noble Resources Ltd. Vs. State of Orissa & Anr., AIR 2007 SC 119: (2006) 10 SCC 236, Food Corpn. of India Vs. SEIL Ltd. & Anr., (2008) 3 SCC 340, and Karnataka State Forest Industries Corporation & Anr. Vs. Indian Rocks & Anr., (2009) 1 SCC Page No.# 11/15
150.
13) From the materials available on record, the following facts emerges, viz., (i) the petitioners were the highest bidder in the auction bids, (ii) the petitioners had deposited the earnest money, (iii) they had also deposited the balance bid money beyond the stipulated time, but with late fine, (iv) in W.P.(C) 1494/2017 and WP(C) 4107/2017, the concerned official of the railways had admitted that materials could not be delivered as the said concerned official who was to give delivery at Mazbat was ill from 16.11.2014 to 14.03.2015, for which the said concerned official had recommended for sanction of delivery period to the petitioners in WP(C) 1494/2017 and WP(C) 4107/2017 without ground rent. In WP(C) 1520/2017 and WP(C) 4010/2017, it is claimed by the petitioners that the custodian could not fix the delivery date due to bad law and order situation, Assam Bandh, Curfew, imposition of Section 144 Cr.P.C. and lifting programme of others without ground rent, (v) the petitioners in these writ petitions had sought for extension of time and for re-fixing the date of delivery of materials, (vi) thereafter, the Dy. CMM had extended the delivery period from 16.04.2015 to 29.04.2019 with ground rent.
14) The petitioners have stated in paragraph 9 of W.P.(C) 1520/2017 that the petitioners had made necessary application dated 10.02.2015 (Annexure-4 and 4A) before respondent No.4 for granting extension of delivery period as the custodian could not fix delivery date due to imposition of restrictions under Section 144 Cr.P.C., Curfew and Assam Bundh, etc. However, on a perusal of the affidavit- in- opposition of the respondents, the stand of the respondents in paragraph 9 thereof is that the statement is not verifiable and not supported by any documents. But, the respondents had not denied that it was falsely claimed that custodian could not fix delivery date due to imposition of restrictions under Section 144 Cr.P.C., Curfew and Assam Bundh, etc., for which ground rent was imposed. Moreover, even while issuing of D.P. Extension Letter dated 10.04.2015, the reasons assigned in petitioners' letters dated 10.02.2015 were not denied. It is seen that the General Conditions of Sales of scrap material through e-auction and the Special Conditions of Sale of scrap material through e-auction do not contain any clause stipulating the consequences which may follow in case Page No.# 12/15 the railways failed to deliver the auction materials in time.
15) The learned standing counsel for the Railways has referred to clause 7.3 and 11.0 of the Special Conditions of Sale to project that only 50 (fifty) days of free time is allowed for delivery reckoned from the date of acceptance of the bid and accordingly, it is submitted that in the present case the delivery period of auction scrap materials to the petitioners had crossed the fifty days benchmark, there was no infirmity on the part of the railway to levy ground rent at the prescribed rates in terms of clause 11.2 of the Special Conditions of Sale. However, from a perusal of clause 11.3 of the Special Condition of Sale, it appears that it is provided that if due to any default in any respect on the part of Railway Administration, the purchaser is unable to remove the goods or materials within the specified period, the Railway Administration shall extend the period of delivery, and in such event if the goods and materials are removed by purchaser within the extended period, he will not be liable to pay any ground rent or any other charges, and the Railway Administration will not be entitled to order the sale of the goods or materials or forfeit the bid money or the price, if any, paid by the purchaser. Therefore, this is not the case where Clause 11.6.5, as introduced by amendment in the Special Condition of Sale applies because the said clause provides that in case the purchaser of a lot defaults in depositing balance sale value for the sold lot within allowed period of 20 days from the date of auction, no delivery period extension beyond the free delivery period of 50 days shall be granted without ground on any reasons whatsoever because this is not a case where the petitioners had committed a default in paying balance sale value. Therefore, clause 11.6.5 does not come to the rescue of the respondents to justify their claim for ground rent. This is not a case where the petitioners did not lift the scrap materials, rather, the respondents had failed to deliver the same to the petitioners. The learned Standing Counsel for the railways had submitted that the petitioners had suggested unworkable dates for lifting of scrap materials at a short notice. This plea would also not hold water because there is no material on record by which the respondents had refused to deliver scrap materials on the dates suggested by the petitioners by assigning any terms or conditions of sale or for any other reasons and provided alternative dates on which the petitioners had failed to lift the scrap materials from the site.
Page No.# 13/15
16) Moreover, the petitioners had annexed a copy of judgment and order dated 20.12.2016 in WP(C) 5265/2015 and three connected cases (Annexure-10 of WP(C) 1520/2017) wherein under circumstances to this case, railways had levied ground rent although the railways could not deliver the scrap materails, this Court had allowed the writ petitions on the following terms:
"16. In view of the above discussions, the writ petitions are allowed. At this stage, Mr. Prasad submits that the application for fixing the fresh date of delivery has to be made before the jurisdictional Deputy Chief Engineer. In view of above, the petitioners individually will made fresh application before the jurisdictional Deputy Chief Engineer on or before 05.01.2017 indicating the date(s) on which they intend to take delivery of the material. It is made clear that from the date of application, the petitioner will have 20(twenty) days' time to take free delivery. Within a period of three days from the date of receipt of the applications, the authority will inform the petitioners regarding date of delivery, which necessarily has to be within 20 (twenty) days from the date of application."
17) In view of above referred judgment and order dated 20.12.2016 of this Court in WP(C) 5265/2015, this Court is of the considered opinion that to send the petitioners herein for arbitration would be unreasonable and/ or unconscionable when in similar matters, this Court had allowed the writ petitions as indicated above, moreso, when the respondents had not invoked the provisions of Section 8 of the Arbitration and Conciliation Act, 1996 for the purpose of referring the parties to arbitration.
18) In view of the above discussions, these writ petitions are allowed on terms as indicated below.
ORDER 19) The following reliefs are allowed:-
1. The impugned D.P. Extension Letters No. (i) 22/14-15/0107 dated 07.05.2015;
(ii) 22/14-15/0072 dated 07.05.2015; (iii) 22/14-15/0073 dated 07.05.2015; (iv) 22/14-15/0104 dated 10.04.2015; and (v) 22/14-15/0106 dated 10.04.2016, all Page No.# 14/15 issued by the Deputy Chief Materials Manager, Pandu (Dy.CMM/Pandu) are set aside and quashed.
2. The impugned letter/ order No. 22/14-15/0072/0073/0107/0104/0106 dated 14.12.2016/ 25.03.2017 issued by the Deputy Chief Materials Manager, General Stores Depot, Pandu (Dy.CMM/PNO) is set aside and quashed.
3. Resultantly, it is provided that the petitioners herein shall individually make a fresh application before the jurisdictional Deputy Chief Materials Manager, NF Railway on or before 02.05.2019, indicating the dates when they intend to take delivery of the materials for which their respective auction bids were allowed. In such applications, the petitioners shall provide their mobile phone numbers where message and/or whatsApp message can be sent and in addition, e-mail address should also be provided.
4. On receipt of such applications, the Deputy Chief Materials Manager, NF Railway shall inform the petitioners by mobile message or WhatsApp message as well as by e-mail about the respective dates when each particular lot of auctioned scrap materials can be lifted by the petitioners. Such delivery dates should be fixed by the railway administration by giving at least 8 (eight) days' clear time to the petitioners to mobilize their resources to lift the materials. It is also provided that if materials are lifted by the petitioners within the time allowed, the railway administration would not be able to impose any ground rent and/or penal charges on the petitioners. However, it is made clear that if the petitioners fail to lift the materials within the time allowed for any reasons whatsoever, it would be open to the railway administration to take such measures as may be permitted under the applicable (i) General Conditions of Sale of Scrap Materials through e- Auction, and
(ii) Special Conditions of Sale of Scrap Materials through e- Auction.
5. In the alternative to relief No. 4 above, if for some reasons, the Railway administration is unable to deliver the auctioned scrap materials to the petitioners, the concerned Railway Officials including the Deputy Chief Materials Manager, General Stores Depot, Pandu (Dy.CMM/GSD Pandu) shall refund the auction purchase money (including earnest money and late-fee) deposited by the petitioners within 15 (fifteen) days from the date of receipt of the applications to Page No.# 15/15 be submitted by the petitioners as indicated in relief (1) above.
6. The petitioners have not been able to refer to any clause contained in the General and Special Conditions of Sale of Scrap materials through e-Auction which would entitle the petitioners to 24% interest, as such, the said claim of the petitioners for pre-litigation and pendente lite interest is refused. However, if the respondents are inclined to refund the auction money, then on default of refunding the same in terms of relief No. (5) above, the respective petitioners shall be entitled to interest @ 7.5% per annum on and from the 16 th day of the date of receipt of application till such money is actually received by the petitioners.
20) These writ petitions are accordingly, disposed of in terms of the above observations and directions, leaving the parties to bear their own cost.
JUDGE Comparing Assistant