Calcutta High Court
Premier Explosives Limited vs Coal India Limited & Ors on 4 August, 2008
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
C.S. No. 143 of 2007 G.A. No. 1988 of 2007 G.A. No. 2230 of 2007 G.A. No. 3851 of 2007 With C.C. No. 148 of 2007 G.A. No. 2025 of 2007 In the High Court at Calcutta Ordinary Original Civil Jurisdiction Premier Explosives Limited Vs. Coal India Limited & Ors.
Appearance Mr. Sabyasachi Chowdhury, Advocate Mr. Jishnu Chowdhury, Advocate Mr. R. Upadhyay, Advocate ...Plaintiff Mr. K. Mondal, Advocate ...Defendants Before :
The Hon'ble Justice Sanjib Banerjee Date : 4th August, 2008 The Court :- The plaintiff's complaint in the suit arises in the context of notices issued by the defendants alleging that the plaintiff had failed to meet the supply targets agreed to between the parties for the period 2006-2007. The defendants had issued notices that the defendants would purchase the quantity of explosives that the plaintiff failed to supply at the risk and costs of the plaintiff.
G.A. No. 1988 of 2007 is the plaintiff's principal interlocutory application in aid of the reliefs in the suit. Such application was made on June 25, 2007 and an order was obtained on the same day in terms of prayers (a), (b) and (c). Such order, in effect, restrained the defendants from purchasing the alleged shortfall in the plaintiff's supply of explosives and hold the plaintiff liable for the additional price and all expenses relating thereto. The order of June 25, 2007 also required the defendants to permit the plaintiff to take 2 part in the reverse auction bids that were to be held on June 26, 2007 for identifying the suppliers to supply explosives at the defendants' coal mines for the year 2007-2008.
The plaintiff alleges that notwithstanding the order of June 25, 2007, the plaintiff was not allowed to participate at the reverse auction bids on June 26, 2007. It was in such context that the plaintiff took out a second interlocutory application being G.A. No. 2230 of 2007 and instituted contempt proceedings being C.C. No. 148 of 2007. Some of the prayers made in G.A. No. 2230 of 2007 and in the contempt proceedings overlap. According to the plaintiff, upon prima facie satisfaction that an arguable case of breach had been made out against the defendants and/or their officials, some orders were passed on the basis of the additional prayers found in the contempt application though such prayers were also made in the plaintiff's second interlocutory application.
G.A. No. 3851 of 2007 is the defendants' application seeking vacating of the orders of June 25, 2007 and June 27, 2007.
G.A. No. 2025 of 2007 is a further application of the defendants filed in the contempt proceedings seeking dismissal of the contempt proceedings and/or vacating of the order of June 27, 2007 passed therein.
The defendants filed a petition for special leave to appeal from the order dated June 27, 2007. The interim order made on the contempt application was vacated by the Supreme Court by an order of August 13, 2007. Though detailed reasons do not appear from the Supreme Court order, it can be gauged that the Supreme Court may have been of the view that without a case of contempt first having been established or found, no orders of injunction could have been made on the contempt application.
The plaintiff contends that the orders that found place in the later prayers of the contempt petition were the same orders that 3 had been sought by way of an interlocutory application in the suit in GA No.2230 of 2007 and that in view of the orders passed in the contempt application, the orders sought on the plaintiff's second interlocutory application were not made.
It is, however, not necessary to go into all aspects of the matter save the contempt petition in view of the subsequent events. The reverse auction for the year 2007-08 was completed and it is more than likely that the period of supply covered by such period is also over. The plaintiff's grievance of being allegedly black-listed and not permitted to participate at the reverse auction for the year 2007- 08 becomes meaningless in the context.
But the plaintiff's prayer in the principal interlocutory application still remains. The plaintiff says that the order of injunction restraining the defendants from purchasing the additional material at the risk and costs of the plaintiff should be continued. The defendants Coal Company say that there is no question of any other risk purchase being made inasmuch as supplies for the subsequent years have already been effected and the notices issued by the defendants as to risk purchase have now become infructuous.
In such view of the matter and upon recording such submission made on behalf of the Coal Companies, no order need be made as to the risk purchase notice. As to the plaintiff's grievance on account of alleged black-listing, the plaintiff will not be regarded to have been black-listed without the plaintiff being given further notice and the plaintiff being permitted to represent the plaintiff's case and take appropriate action, if deemed necessary, upon receipt of the notice.
The plaintiff's first interlocutory application being GA No.1988 of 2007 is disposed of without any order as to costs.
The plaintiff's second interlocutory application being GA No.2230 of 2007, seeking further orders complaining of the defendants' 4 conduct on June 26, 2007, has become irrelevant after such substantial lapse of time. GA No.2230 of 2007 is disposed of without any order as to costs.
In view of the orders aforesaid, GA No.3851 of 2007 does not survive and is disposed of without any order. There will be no order as to costs.
In answer to the charge of contempt brought by the plaintiff, the defendants and/or the alleged contemnors say that the plaintiff was permitted to participate at the reverse auction on June 26, 2007 but the plaintiff did not otherwise have the qualifications to be considered as a suitable candidate on whom orders for supply of explosives for the year 2007-08 could be placed. The alleged contemnors say that the plaintiff had been assessed taking into account the plaintiff's previous performance, and in such assessment the plaintiff had obtained sixty-seven per cent marks against a qualifying floor limit of seventy-five per cent. The plaintiff alleges that in view of the orders in terms of prayers (a), (b) and (c) subsisting as at June 26, 2007, the excuse sought to be given by the alleged contemnors should not be accepted. The plaintiff says that the assessment of sixty-seven per cent was made by marks being deducted from the plaintiff on account of the plaintiff's alleged failure to meet the plaintiff's promised supply targets for the year 2006-07. The plaintiff says that the order of June 25, 2007 was passed upon this Court being, prima facie, satisfied that the plaintiff had offered to supply the target quantities of explosives and it was the defendants who had required the plaintiff not to effect further supply on the defendants asserting that the defendants had more than adequate supply of explosives stocked at their mines.
Notwithstanding it being apparent that the stand taken by the alleged contemnors may be questionable, for a Court to come to a definitive conclusion that its order had been violated, such violation 5 has to be shown to be deliberate and willful. The alleged contemnors say that they did not understand the order of June 25, 2007 to completely wash away all that they had held against the plaintiff in arriving at the plaintiff's assessment at the techno-commercial bid which preceded the reverse auction. It is an arguable and plausible explanation that cannot be totally brushed aside off hand. Since the petitioner has to establish a clear case of contempt, it does not appear from the facts that such a high case has been made out though the alleged contemnors' conduct leaves something to be desired.
In such circumstances, CC No.148 of 2007 is disposed of without any order and the rule, if issued, stands discharged, GA No.2025 of 2007, which is the defendants' dismissal and/or recalling application in the contempt proceedings does not survive upon the contempt proceedings being dropped.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) sg./bp.