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2. The petitioner is a Private Limited Company duly registered under WP.2443.13 the provisions of the Companies Act,1956. The petitioner is an authorized Distributor of respondent no.3-Company. Pursuant to the offer made by respondent no.3-SKF India Limited, Bombay and offer made by Industrial Bearing Services, the respondent no.1 had entered into a rate contract dated 11.12.1995 for supply of SKF imported bearings for a period of two years on the terms and conditions stated in the rate contract. It was agreed that the respondent no.1 shall place the order against the said rate contract and the petitioner and shall execute the same. It was further agreed that the respondent no.1 shall make payment against the bills that would be raised for the aforesaid supplies to the petitioner directly. Initially, rate contract was for a period of two years with effect from 11.12.1995 till 31.12.1997. The duration of the said rate contract was extended by respondent no.1 from time to time and the last extension was up to 31.12.2011. As per the rate contract, the petitioner has supplied imported bearings as per the orders placed by respondent no.1 from time to time and, accordingly, respondent no.1 has made payment to the petitioner in respect of the supplies made by the petitioner to the respondent no.1. According to the petitioner from 1995 till 2010 there was no dispute between the parties. However one Mr C.M.Shukla, then G.M. (MM) WCL Headquarters, by letter dated WP.2443.13 26.04.2011 addressed to Chief General Manager/ GMs of various areas under the respondent no.1, directed to withhold payment against the said rate contract to the petitioner. By letter dated 27.04.2011, Mr. Shukla, suspended the aforesaid rate contract with immediate effect. There was a lot of correspondence between the parties. The petitioner addressed various letters to the respondent no.1 for the alleged payment.

5. Mr.Bhangde submitted that the price fall clause was not acceptable to respondent no.3 and was acceptable to the petitioner only. For that reason, the respondent no.3 was made a party to the rate contract is that respondent no.1 can enter into a contract with manufacturer only and to ensure responsibility of respondent no.3 quality and genuinity of the supply made by the petitioner. He invited our attention to clause (7) of the Minutes of the Tender Committee meeting dated 15.11.1995, which reads thus, "7. Supply Point: All orders will be placed on M/s Industrial Bearing Services, Nagpur with a copy to M/s SKF Bearings India Ltd. Bombay and supply will be made by M/s Industrial Bearing Services, Nagpur. However, M/s SKF Bearings India Limited Bombay will be responsible for quality and genuinity of the supply made by their Recognised Importers/authorised Stockist and will be referred in case of any dispute."

19. There is certainly substance in the contentions of Mr. Dharmadhikari that there are several disputed questions of facts.

20. Mr.Dharmadhikari contended that the contract is between WCL and M/s SKF Bearings India Limited. Whatever arrangement is there it WP.2443.13 is between them. The respondent no.1 claims privity of contract with SKF/respondent no.3 and terms and conditions are not placed on record on which the petitioner was appointed by respondent no.3. Shri Dharmadhikari took us through the clauses of the rate contract. Clause 20 as regards penalty reads as under :

22. According to Mr.Dharmadhikari, the respondent no1. is entitled to recover the amount from the petitioner. It is submitted that the petitioner is the agent/dealer of respondent no.3-M/s SKF Bearings and the acts of principal i.e. Respondent no.3 will bind the petitioner. The respondent no.3 has filed Writ Petition No.1047/2011 on similar grounds against the respondent no.1, which was disposed of on 23.08.2011 by the principal seat of this Court. According to Mr. Dharmadhikari the petitioner cannot claim same relief once petition is withdrawn. The petitioner has to claim against respondent no.1. Mr. Dharmadhikari pointed out the letter dated 29.01.2011 addressed to General Manager (MM) WCL by SKF (respondent No.3) stating that WP.2443.13 "quotes published by them and the offers made to IOC were only to an "Invitation to Offer". It was further mentioned that when an offer is made by any prospective buyer in pursuance of an invitation to offer it is not obligatory on the part of seller making the invitation to offer to accept such offer from the buyer. Thus only in the event of the offer made by IOC being accepted by SKF and goods (identical to those sold to WCL) being supplied and sold in furtherance thereof, the WCL Rate contract can be said to be breached and not before it."