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 remains a claim, subject to adjudication.

JUDGMENT :

Heard Mr. A. C. Borbora, learned senior counsel assisted by Ms. N. Dey, learned counsel appearing for the writ petitioner. Also heard Mr. V. K. Singh, learned Standing Counsel, FCI appearing for the respondents.

2. The writ petitioner herein is a private limited company and is engaged in transportation business. The Food Corporation of India (FCI) had issued a Notice Inviting E-tender (NIT) dated 11.06.2021 inter-alia, for awarding the contract of “Handling and Transportation Contract Ex-Rly Siding Salchapra to FSD Badarpurghat via Weighbridge including handling at FSD Badarpurghat”. The petitioner had participated in the competitive bidding process and had emerged as the successful bidder. Consequently, by issuing the order dated 08.11.2021, the petitioner was appointed as the handling and transport contractor, Ex-Rly Siding Salchapra to FSD Badarpurghat, at the rates quoted in the tender document. As per the terms and conditions of appointment, the contract would come to an end on 20.11.2023. Although, the petitioner company was awarded the transportation contract from Ex-Rly siding Salchapra to FSD Badarpurghat, yet, the work of handling was awarded only at the Badarpur FSD meaning thereby that unloading of bags of food grains/sugar from the loaded trucks and stacking the foods inside the Food Storage Depot (FSD) only at Badarpur FSD was included within the scope of the contract. However, in so far as the handling of foodgrains at the Railway siding at Salchapra is concerned, the same was awarded to another handling contractor, viz., M/S Anup Trade and Transport (P) Ltd.

3. It is the pleaded case of the petitioner that as and when allotments of consignment was made to the petitioner at the Badarpur Railway Siding, it had executed the transportation work as well as the work of handling (unloading) at the FSD Badarpurghat without any default. Notwithstanding the same, “demurrage” has been deducted from the running bills of the petitioner which is apparent from the sanction order issued by the Manager Accounts. According to the writ petitioner, there is no clause in the contract permitting the authorities to deduct “demurrage” from the running bills of the petitioner since the petitioner company was not the handling contractor at the Ex-Railway Siding at Salchapra. It has also been alleged in the writ petition that the delay in unloading of wagons took place not on account of any default on the part of the writ petitioner but on account of negligence on the part of the FCI officials to open the wagon rakes within the “free time” notified by the Railway authorities and therefore, the writ petitioner cannot be held liable for “demurrage”, if any, charged by the Railway authorities upon the FCI.

4. The respondents have contested the petitioner’s case by contending that as per the terms and conditions of the contract agreement, the petitioner is liable to pay “demurrage” due to delay in loading the trucks beyond the “free time” notified by the N. F. Railway authorities. It has been contended that the officials of the FCI have always received the wagons on time, even if it is in odd hours, late in the evening and therefore, the allegation made in the writ petition are wholly unfounded.

5. It is apparent from the documents annexed to the writ petition that the Railway authorities had notified “free time” for unloading the wagons. Any loading/unloading taking place beyond the “free time” would invite “demurrage” levied at the rate of Rs.150/- per 8 wheeled wagon per hour or part of an hour for detention of wagons in excess of the permissible “free time” for loading or unloading. It is the admitted position of fact that the petitioner is not the handling contractor at the Railway siding inasmuch as M/S Anup Trade and Transport (P) Ltd. was the contractor appointed for handling at the Railway siding. As such, it is evident that there was no responsibility on the petitioner to unload the railway wagons. Notwithstanding the same, t