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2014 Supreme(Gau) 709
IN THE HIGH COURT OF GAUHATI
Hrishikesh Roy, J.
Rana Construction & Engineers Pvt. Ltd. and Ors. - Appellants
Vs.
Union of India and Ors. - Respondents
W.P.(C) Nos. 3498, 3682, 4437, 4438, 4656, 4709, 4661 of 2010, 5672 and 5673 of 2012
Decided On: 26.09.2014
For Appellant/Petitioner/Plaintiff:B. Chakraborty and T.R. Sarma, Advocates
For Respondents/Defendant:K.P. Pathak, Senior Advocate, P.K. Roy, SC, U. Rajbongshi and J. Huda, Advocates
Headnote:
Indian Contract Act, 1872 - Section 56 - Business of transportation of food grains - Appointment of carriage contractors for transporting food grains - Load restriction - Tender process - Two petitioners in WP(C) and WP(C) are represented by learned advocate and petitioner in WP(C) is represented by Counsel - Respondent Food Corporation of India (FCI) and their officials are represented by Senior Counsel Mr. K.P. Pathak who is assisted by Standing Counsel Mr. P.K. Roy. Mr. U. Rajbongshi, learned Asstt. Advocate General appears for Transport Department, Government of Assam - Learned Central Government Counsel Ms. J. Huda appears for Union of India - Held, This Court in Rana Construction & Engineers Pvt. Ltd. Vs. Union of India reported in 2011 (5) GLT 629 held that failure to provide trucks in pursuance of contract would constitute refusal to discharge contractual obligation and on that ground, declined to grant relief to contractor - This decision supports the FCIs contention as petitioner in that case was on similar footing and their plea of impossibility of performance was indirectly rejected by this Court – Records court must note that this Court in similar cases refused relief to several transporters under FCI - Here since acceptance was communicated while offer was valid, Court is not dealing with unconcluded contracts - In situations where acceptance is communicated without reservation to open offers, parties are obliged to fulfill their contractual obligations and when they fail, they must face consequences – Petitions dismissed.
Hrishikesh Roy, J.
1. Heard Mr. N. Dutta, the learned Senior Counsel appearing for the petitioners in the WP(C) 3682/2010, WP(C) 5672/2012, WP(C) 5673/2012, WP(C) 4437/2010 and WP(C) 4438/2010. Mr. A.M. Buzarbaruah, the learned Senior Counsel argues for the petitioners in the WP(C) 3498/2010. The two petitioners in the WP(C) 4656/2010 and WP(C) 4709/2010 are represented by the learned advocate Mr. M. Dutta and the petitioner in the WP(C) No. 4661/2010 is represented by Mr. B. Chakraborty, the learned Counsel. The respondent Food Corporation of India (FCI) and their officials are represented by the Senior Counsel Mr. K.P. Pathak who is assisted by the Standing Counsel Mr. P.K. Roy. Mr. U. Rajbongshi, the learned Asstt. Advocate General appears for the Transport Department, Government of Assam. The learned Central Government Counsel Ms. J. Huda appears for the Union of India.
RELEVANT FACTS
The petitioners are in the business of transportation of food grains under the FCI and these cases are related to the tender process for appointment of carriage contractors for transporting food grains from the FCI depots on different routes in the North East region. Tender notices were issued on 14.12.2009, 28.4.2010 and 17.2.2010 for the individual routes by the General Manager (R) of the FCI, inviting bids from contractors with 2 years minimum experience in handling food grains. As experienced contractors, the petitioners participated in the 2 bid system tender process and after their technical bids were found responsive, their price bids were opened on different dates i.e. 22.1.2010, 8.6.2010 and 9.4.2010 for the concerned NITs. The FCI authorities then started negotiation for rate reduction with the responsive tenderers. In the meantime, the petitioners learnt of the strict enforcement of truck load restriction of 9 MT for each truck.
2. Earlier the trucks were overloaded with upto 21 MT of food grains and the rates quoted by the carriage contractors was on the assumption that each truck would carry an average load of 20/21 MT each. But when the permitted gross weight prescribed under Section 58 and 113 of the Motor Vehicles Act came to be strictly enforced in Assam and many overloaded trucks were fined at the check gates, for the subsisting contracts the transporters didn't place enough trucks to match the indents issued by the FCI authorities. Accordingly the Area Manager of the FCI through his FAX dated 7.6.2010 informed those defaulting contractors that if sufficient trucks are not provided, the FCI will levy penal charges from the contractors. In this communication, the Area Manager requested the higher-ups in the FCI to seek exemption for the FCI vehicles from the restrictive load barriers so that the transporters can carry the food grains to their destination without disruption of service. Then the Executive Director (NE) of the FCI through his letter dated 8.6.2010 sought special exemption for loading food grains above 9 MT in the FCI trucks as per the prevalent practice prior to 10.5.2010.
3. At that stage, one of the tenderer Salehul Gafoor who is the petitioner in the WP(C) 4438/2010 wrote to the FCI that the rate quoted by him was on the basis that the transporter will be carrying 18 to 20 MT load per vehicle but since the permitted load is restricted to only 9 MT, the tenderer may be allowed to revise his rate or else his earnest money be returned to him. Similar letter was also written on the same date i.e. 9.7.2010 by the tenderer Mitradev Chetry who has filed the WP(C) 4437/2010.
4. Then on 17.6.2010, three tenderers namely M/s. Rana Constructions & Engineers Pvt. Ltd., M/s. S.D. Enterprise and M/s. Saikia Trade and Transport Co. jointly approached the High Court by filing the WP(C) 3498/2010 where they sought special exemption to carry load above 9 MT in their trucks. But when this case was moved on 18.6.2010, the FCI Counsel produced the FCI's FAX order dated 17.6.2010, whereby it was communicated that the tender proc
