I.P. MUKERJI, J.

In or around 1998 Kolkata Port Trust decided to build a fully mechanised multipurpose berth (No. 4A) at Haldia Dock Complex. It did not propose to build and operate it itself, but wanted to entrust it with a contractor. It invited tenders to build, manage and maintain it.

On 17th September, 1999 Haldia Dock Complex, on behalf of the Kolkata Port Trust, issued a letter of intent to International Seaports (India) Pvt. Ltd. to construct and maintain a multipurpose Berth 4A in Haldia.

On 28th January, 2002 International Seaports (India) Pvt. Limited and the respondent entered into an agreement. International Seaports would be responsible for berth construction and operation at Haldia Dock Complex. It would handle the cargo of coking coal of the respondent at the port. This would involve loading and unloading the cargo, transferring it to the stockyard, removing it from the stockyard and loading it on to wagons /rakes. On 14th May, 2002, a formal agreement was drawn up between International Seaports (India) Pvt. Limited and the Board of Trustees for the Port of Kolkata. On 17th June, 2002 this organisation assigned with the consent of Kolkata Port Trust, their rights and obligations under the said agreement dated 17th September, 1999 read with the agreement dated 14th May, 2002 to International Seaports (Haldia) Private Limited the petitioner. By an agreement dated 6th August, 2003 the rights and liabilities of International Seaports (India) Pvt. Ltd. in their agreement with the respondent dated 28th January, 2002 was also assigned in favour of the petitioner. On 7th August, 2003 the respondent accepted it.

The respondent was importing coking coal in bulk at Haldia Dock Complex. Inside the dock area, there was a railway network to carry the cargo after it was unloaded. From the shore the cargo would be carried to the stockyard. Thereafter it would be loaded onto railway wagons rakes and despatched to its destination.

Certain terms and conditions of the agreement dated 28th January, 2002 are very important. The same are set out below:

4.11. Despatch Instructions---SAIL shall furnish 7 days prior to the commencement of the month, rake movement plan. The movement plan shall not exceed six rakes in two days subject to a maximum of 4 rakes on any one day.

4.12. Wagon Indents-SAIL shall prepare the wagon indents/forwarding notes and hand it over to ISPL for submission to Railways. However the wagon procurement would be the responsibility of SAIL.

4.13. Freight Payment: Arrangements for payment of railway freight in respect of despatches to the respective steel plants on freight pre-paid basis shall be carried out by SAIL. ISPL shall not be responsible for any delay on this account.

5.14. Loading of wagons: Subject to clauses 4.11 and 4.12 ISPL shall load 6 rakes every two days and maximum 4 rakes per day. ISPL shall ensure that wagons are cleaned of all foreign materials before commencement of loading of the wagons. ISPL shall complete the loading of wagons within the free time permissible and as per the carrying capacity of the wagons. ISPL shall ensure that all wagon doors are closed and secured with wooden plugs appropriately. ISPL shall ensure trimming of the wagons and also lime spraying before the wagons are drawn out. ISPL shall be responsible for any demurrage due to delay in loading the wagons for reasons directly attributable to ISPL.

5.16 Weighment of Rakes----ISPL shall ensure that every wagon is weighed and weighment particulars are recorded and furnished to SAIL. In the unlikely event that the in motion weighment system is not functioning, volumetric measurement shall be carried out by an independent surveyor to establish the weight of the cargo. This volumetric measurement shall be subject to a maximum of 5% of the total quantity in a quarter i.e. in motion weigh bridge down time will not exceed 5% of the volume handled beyond which receipts shall be jointly surveyed at plant site to arrive at the quantity