Calcutta High Court (Appellete Side)
Ajay Agarwal vs State Of West Bengal & Anr on 20 April, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
20.04.2023
Sl. No.22.
D/L.
Mithun.
Ct.No.42.
CRR/4596/2022
Ajay Agarwal
Vs.
State of West Bengal & Anr.
Mr. Sabyasachi Banerjee, Adv.
Ms. Minal Palana, Adv.
Mr. Amitesh Ray, Adv.
...for the petitioner.
The petitioner is the Director of M/s. BLA Projects Pvt. Ltd. who
was entrusted by Annual Rate Contract dated 23 rd March, 2018 to
transport coal in RCR mode by using Chourasi Railway Siding to
Raghunathpur TPS unloading point.
It is alleged that on verification the complainant/opposite party
No.2 found that the said coal was contaminated as it was mixed with
mud, stone or other extraneous materials. On the basis of such
complaint dated 9th June, 2018, Raghunathpur Police Station Case No.82
of 2018 under Sections 409/420/506/34 of the Indian Penal Code was
registered against the petitioner.
Since there was an arbitration clause in the contract executed
between the DVC and M/s. BLA Projects Pvt. Ltd., M/s. BLA Projects Pvt.
Ltd. put the dispute for arrear settlement by way of arbitration. It is
found from the finding of the learned Arbitrator that the contract between
the parties did not define what would constitute contamination, but sure
enough provided in the contract clear guideline and procedure for testing
purity of coal, the acceptance of tolerance limit and, of course, for
penalizing the contractor for supplying inferior quality of coal in
2
appropriate circumstances. On evidence, it was found by the learned
Arbitrator that neither of the said provisions was restored to or at any
rate was made out with reference to any such regulating provisions.
Most significantly, the respondent accepted the coal so supplied on 1 st
and 2nd June, 2018, without reservation. Thus, the coal transported by the Company of the petitioner was actually used by the DVC Authority. When the said article was used, the learned Advocate for the petitioner has raised a question regarding efficacy and prospect of the present complaint on the basis of which Raghunathpur Police Station Case No.82 of 2018 was instituted.
The instant revision is admitted.
The petitioner is directed to serve notice upon the private opposite party under registered speed post with acknowledgment due and file affidavit of service within three weeks from the date of this order.
The State of West Bengal be served through the learned Public Prosecutor, High Court, Calcutta.
In the meantime, further proceeding in connection with G.R. Case No.314 of 2018 pending before the learned Additional Chief Judicial Magistrate, Raghunathpur be stayed till two weeks after Summer Vacation.
( Bibek Chaudhuri, J. )