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Eta Engineering Private Limited vs Central Warehousing Corporation & Ors on 20 February, 2023

                          $~8.
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 5832/2013
                                 ETA ENGINEERING PRIVATE LIMITED             ..... Petitioner
                                                  Through: Ms. Diya Kapur, Mr. Raghav and
                                                           Mr. Aditya Ladha, Advocates.

                                                   versus

                                 CENTRAL WAREHOUSING CORPORATION
                                 & ORS.                                 ..... Respondents
                                             Through: Mr. Shaiwal Srivastava, Advocate for
                                                      R-1.
                                                      Ms Ishita Choudhry, Advocate for
                                                      R-2.

                                 CORAM:
                                 HON'BLE MR. JUSTICE GAURANG KANTH
                                                   ORDER

% 20.02.2023 The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. A Concession Agreement dated 12.03.2007 was entered into between the petitioner and the Railways pursuant to which the Railways hauled the petitioner‟s train on its network. In accordance with the terms of the Concession Agreement, the petitioner was to pay the Railways various charges, including haulage charges and shunting charges. A dispute arose between the petitioner and the Railways on the quantum of shunting charges. It was the petitioner‟s case that the total shunting charges payable for the period 2008 to June, 2013 was Rs.87,25,688/-, which stood paid. The Railways, however, demanded Rs. 1,16,98,615/- upto December, 2012. The Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:23.02.2023 16:56:26 petitioner invoked the Arbitration Clause under the Concession Agreement and the dispute was referred to arbitration before the Arbitral Tribunal comprising of Mr. Prakash Narain, Mr. Ranjan Kumar Jain and Mr. Sarvesh Chandra.

2. It is the case of the petitioner that the siding charges was one at Loni owned by respondent No.1 Central Warehousing Corporation. The Railways directly and through CWC was threatening to shut down the operation of the petitioner if the disputed shunting charges were not paid. Pending arbitration, the petitioner, at that stage, had filed the present Writ Petition, inter alia, asking for the following reliefs:-

"a) Pass an appropriate writ, order or direction quashing the notices dated 3.9.2013 and 5.9.2013 issued by Respondents No.1 & 2;

b) Pass an appropriate writ, order or direction directing the Respondents to calculate shunting charges in accordance with the Rate Circular No 14, (No TC-1/2008/214/1) dated 06.02.2009 read with the Railway Board letter no 2007/TC- I/302/1 Pt. E dated 23.06.2010 and the Railway Manual;

c) Pass an appropriate writ, order or direction directing the Respondents to calculate shunting charges from the time when the locomotive enters the siding i.e beyond the point of interchange till such time that it exits the siding when it crosses the point of inter change;

d) Pass an appropriate writ, order or direction directing the Respondents to levy shunting charges only when shunting activities take place and not when siding operations take place.

e) Pass an appropriate writ, order or direction directing the Respondents to undertake reconciliation exercises in order to determine the legitimate shunting charges payable in terms of Rate Circular No 14, (No TC-1/2008/214/1) dated 06.02.2009, the Railway Board letter no 2007/TC-1/302/1 Pt. E dated 23.06.2010 and its Railway Manual."

3. This Court, vide order dated 13.09.2013, granted the interim order in favour of the petitioner subject to the petitioner depositing 50 percent of the demand in question by way of an FDR in this Court. Petitioner had deposited the said amount. Arbitral Tribunal passed the final Award dated 17.05.2021 holding that the petitioner has correctly paid the shunting charges and the additional sum demanded by the Railways is not payable.

4. In view of the same, this Court is of the considered view that no purpose will be served by keeping the present petition pending. The present Writ Petition is, accordingly, dismissed as infructuous.

5. Registry is directed to release the amount deposited by the petitioner before this Court to the petitioner with interest accrued thereupon within a period of four weeks.

6. All the pending applications are also disposed of.

7. No orders as to costs.

GAURANG KANTH, J FEBRUARY 20, 2023 N3 W.P.(C) 5832/2013 Page 3 of 3 Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:23.02.2023 16:56:26