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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, J.
Bikash Kumar More S/o. Lt. Chiranjilal More – Appellant
Versus
The Food Corporation Of India And 3 Ors - Respondents
WP(C) 2126 of 2022
Decided on : 03-11-2022
Contract Work - Recover Amount - Petitioner had been appointed as transport contractor - Petitioner completed work - Authorities in FCI deemed it appropriate to recover an amount from petitioner as per (I.O.N.) – It appears that respondent FCI officials had made applicable views that may have been expressed by CAG with retrospective effect. Para 37
Finding of the Court:
It also has to be kept in mind that as per NIET rate PMT-PKM are required to be quoted by bidders for a distance of 78.185KMs, whether or not contract works actually requires travel of such distance, and, therefore, application of minds of bidders in quoting rates would be by keeping in mind that distance as per contract agreement would be 78.185 KMs - Any reduction of KM subsequent to contract being concluded would adversely affect rate that bidders may have quoted inasmuch as, had distance for which bill amount would be honored would have been indicated before contract was entered, bidders would have had opportunity to quote appropriate rate by taking note of volume and nature of work – Court is of view that impugned recovery made by respondent FCI pursuant to communication of Divisional Manager, as well as ION from contractors bill of petitioner is held to be arbitrary, unreasonable and unsustainable in law and accordingly same stand set aside - Amount that had already been recovered from petitioner contractor shall be refunded back to petitioner within a period of three months from date of receipt of a certified copy of this order.
Result: Petition allowed.
JUDGMENT :
Heard Mr. AC Borbora, learned senior counsel assisted by Ms. N Dey, learned counsel for the petitioner. Also heard Mr. PK Roy, learned standing counsel for the respondent FCI.
2. The petitioner participated in a tender process pursuant to the Notice Inviting E- Tender (for short, the NIET) dated 28.04.2015 for the work “Ex-Railway Siding JPR/JTTN/FCI FSD Cinnamara to Sibsagar Complex (FSD Jaganikotia and Sibsagar) via weighbridge (Distance 78.185 KMS).” The NIET provided that the rate should be quoted as per Metric Tonne (PMT) per Kilometer (PKM) as per MTF. It further provided that if the rate is quoted otherwise it shall be converted to per MT per KM taking distance as mentioned above.
3. Pursuant thereto, the petitioner was issued the appointment order dated 03.08.2015 which provided that the petitioner had been appointed as transport contractor Ex-Rly Siding JPR/JTTN/FSD Cinnamara to FCI FSD Sibsagar via weighbridge on Regular Basis for a period of 2(two) years, with immediate effect, at the quoted rate of Rs.7.11 PMT-PKM (Distance of 78.185 KMs), on terms & conditions as contained in the tender agreement. The petitioner accordingly completed the work, otherwise to the satisfaction of the respondent authorities, and the work was duly completed within the period of two years from the date of appointment order dated 03.08.2015. Subsequently, the authorities in the FCI deemed it appropriate to recover an amount of Rs.89,99,853/-from the petitioner as per the internal office note (I.O.N.) dated 13.12.2021. The said recovery of Rs.89,99,853/-was preceded by the communication dated 16.05.2020 from the Divisional Manager FCI/DO/Jorhat to the Assistant General Manager (Cont.) Food Corporation of India, Regional Office, Guwahati. The communication dated 16.05.2020 makes it discernible that the recovery sought to be made for the completed contract work by the petitioner was as per the observation made by the Controller and Auditor General (for short, the CAG). The I.O.N dated 13.12.2021 further provides that the recovery of Rs.89,99,853/-would be made in terms of the security deposits of Rs.20,15,500/-, Rs.20,15,500/-, Rs.22,21,930/-respectively which were available with the respondent FCI, as well as by withholding the bill amount of the petitioner in respect of another work of Ex-JTTN to FSD Cinnamara for the period of 02/2019 to 02/2021 which amounted to Rs.26,78,929/-. Accordingly the ION dated 13.12.2021 had provided that a further amount of Rs.67,994/-remains pending for recovery from the petitioner.
4. Being aggrieved this writ petition is instituted.
5. Mr. AC Borbora, learned senior counsel for the petitioner has raised the contention that the NIET dated 28.04.2015 made it abundantly clear that the contract amount of Rs.7.11 PMT/PKM was in respect of the distance specified in the NIET itself which is 78.185 KM. The learned senior counsel further refers to the order of appointment dated 03.08.2015 that the petitioner has been appointed as a transport contractor Ex-Rly Siding JPR/JTTN/FSD Cinnamara to FCI FSD Sibsagar via weighbridge on Regular Basis for a period of 2(two) years, with immediate effect at the quoted rate of Rs.7.11 PMT-PKM for a distance of 78.185 KMs. Accordingly, it is the submission of the learned senior counsel that the petitioner having duly completed his contract work is entitled to a bill amount at the rate of Rs.7.11 PMT-PKM for a distance of 7.11 PMT-PKM and no recovery or any deduction can be made from the contracted amount by taking any plea that the distance of 78.185 KMs can be reduced by referring to any circumstance.
6. Mr. PK Roy, learned senior counsel for the respondents in the FCI per contra raises the contention that the distance of 78.185 KM provided in the NIET dated 28.04.2015 as well as the letter of appointment dated 03.08.2015 also included the distance covered by the transport vehicle from the pickup point at Railway siding to the concerned weighbridge without carrying any food
‘Damage’ means money claimed or ordered to be paid to a person as a compensation for loss or injury that may be caused by other party.
Adopting a different view in matter in facts and circumstances of case would not be permissible in eye of law.
The issue price for recovery under the Model Tender Form cannot be interpreted as dependent on subsidized rates for specific schemes.
The main legal point established in the judgment is that the interpretation and implementation of a clause in a contract should be adjudicated by a civil court or arbitration, if provided under the c....
The main legal point established is that unless a contract specifies an agreed amount of damage, any amount claimed by the employer as demurrage does not automatically translate into a debt but remai....
The court ruled that claims for damages in breach of contract require proof of actual loss, which was not established by the plaintiffs, leading to dismissal of the appeal.
Contractor had not approached Grievance Redressal Committee and hence, Court, relegated contractor to invoke jurisdiction of Grievance Redressal Committee for ventilating its grievances.
Contracts must be honored based on verified terms and conditions; discrepancies in distances stated versus actual must be rectified to uphold contractual integrity.
The main legal point established is that in contractual matters, the court may intervene to prevent arbitrariness or favoritism by the government bodies, especially if the actions violate the equalit....
Recovery cannot be unilaterally initiated post-payment for works completed under contract; compliance with procedures outlined in contract agreements is essential.
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