Writ petition maintainable for asserting contractual rights against the State or its instrumentalities, Court can interfere in disputed questions of fact or monetary claims if there is an infraction of rights guaranteed in the Constitution

JUDGMENT :

Moushumi Bhattacharya, J.

1. The petitioner was engaged as a Handling and Transport (H & T) Contractor by the Central Warehousing Corporation (CWC), Jalpaiguri for two time-spans in 2011 – 2013 and 2013 – 2015. The petitioner was to unload food grains from Railway wagons and transport it to the godowns of CWC and unload the grains to the godowns. The Food Corporation of India (FCI) is the owner of the food grains. According to the terms and conditions of the Agreement executed between the petitioner and the CWC, the petitioner was to raise bills on CWC after performing the work and CWC was to make payment to the petitioner in accordance with the invoices.

2. The petitioner however was unable to unload food grains from Railway wagons due to various circumstances. The petitioner claims that the petitioner sought instructions from CWC on these occasions and that CWC informed the petitioner that the petitioner was to unload the food grains at whichever space was available and that no demurrage charges would be levied on the petitioner or deducted from the petitioner’s bills.

3. Learned counsel appearing for the petitioner submits that the CWC assured the petitioner all along that no amounts would be deducted from the petitioner’s bills. Counsel submits that the petitioner does not have any claims against the FCI since there was no contract between the petitioner and the FCI at any point of time.

4. Learned counsel appearing for the respondent nos. 4 – 7 and 9 / Central Warehousing Corporation submits that the petitioner was responsible for handling and transporting food grains of the depositor and hence the petitioner was providing such services to Food Corporation of India. Counsel submits that the CWC forwarded the H & T bills of the petitioner to FCI for payment and approximately Rs. 61 lacs is liable to be deducted from the petitioner’s bills as demurrage charges.

5. Counsel raises a preliminary objection of the writ petition being barred by limitation since the contract was operative from 2012 – 2015. It is also submitted that the petitioner waived its claims in the form of a “No Demand Certificate” being issued in favour of CWC after completion of the tenure of the Agreement. On the merits of the dispute, counsel submits that the FCI was responsible in utilising the space reserved by FCI at the Central Warehouse at Raninagar as well as for the delay in clearing out the existing stock for creating sufficient space for storing the food grains. Counsel disputes the investigation report prepared by the FCI on the ground of the said report being prepared by the Officials of the FCI.

6. FCI objects to the maintainability of the writ petition on the same grounds as that of CWC. Learned counsel appearing for FCI submits that the petitioner’s claims are not supported by documentary evidence and that FCI has already paid Rs. 43.35 lacs to the petitioner as opposed to the petitioner’s claim of Rs. 1.17 crores. Counsel submits that the writ petition involves disputed questions of fact and that there is no privity of contract between the petitioner and the FCI. Counsel also seeks to rely on the arbitration clause in the contract executed between the petitioner and the CWC.

7. The petitioner has prayed for a direction on the CWC and the FCI for releasing of the amount deducted from the petitioner’s handling and transportation bills on account of demurrage charges amounting to Rs. 1,46,67,382/-. It is undisputed that the petitioner, as the successful bidder to a e-tender floated by CWC, was appointed as a handling and transport contractor for two tenures commencing from 28.9.2011 and 28.9.2013. While the CWC says that the petitioner was providing H & T services to FCI as the Depositor of the CWC at the Central Warehouse at Raninagar, FCI disputes the claim of the petitioner on merits without denying its liability to the claim. FCI’s stand is in fact of FCI having made payment of a substantial amount to the petitioner in terms of the bil