A party cannot reopen a cause of action after withdrawing a previous petition without liberty, and delays attributable to the petitioner can bar claims.

ORDER :

This Writ Petition is filed for a direction to the respondent Nos.1 and 2 to pay a sum of Rs.28,39,926/- pursuant to the work done under contract No.S&C/13/2/3/86, dated 05.08.1986 to the petitioner.

2. The case of the petitioner is that the petitioner is a contractor for transporting of essential commodities from the Railways. While so, when the petitioner has duly executed the contract and a certificate was also issued on 28.03.1989 duly expressing that the petitioner has performed the contract without any default whatsoever and that no demurrage or wharfage charges were incurred due to the delay or negligence on the part of the contractor and when the calculation sheet is also annexed thereto, it can be seen as per the calculation sheet, a sum of Rs.5,09,641/- is deducted towards the demurrage or wharfage charges. These demurrage or wharfage charges, thereafter, were collected by the respondent Corporation from the Railways. The subsequent correspondences between the Railways and the respondent Corporation expressly reveal that atleast, a part of the amount i.e., Rs.2,08,760/- was actually received. Even the balance of the amount could have been received by the respondents, for which, the petitioner is not having any document.

3. Be that as it may, since some dispute arose between the partners of the petitioner firm, when they immediately approached the respondents, they issued a communication stating that only after the dispute between the partnership firm comes to an end, payments will be made. When the petitioner issued notice after the dispute came to an end, evasive replies that records are not available, are being made one way or the other. It is true that the petitioner had earlier filed Writ Petition with reference to the same subject matter in W.P.No.8213 of 2014, but, that was with a prayer to consider the representation. That was withdrawn. However, subsequently, part payment was made with reference to the security deposit. However, still the demurrage charges are not paid. Hence the Writ Petition.

4. The Writ Petition is resisted by the respondents by filing a counter- affidavit. It is the case of the respondents that the claim relates to the period 1987-1988 and there is huge delay and latches in filing the Writ Petition. In respect of the same cause of action, earlier, a Writ Petition is filed and the same was withdrawn without any liberty and therefore, the second Writ Petition is not maintainable.

5. The case of the respondents, on merits, is that the records are not available with reference to the impugned claim. Therefore, the respondents are not able to come to a conclusion one way or the other and when the liability is not admitted, the same cannot be ordered by way of the Writ Petition and the respondents have to file a suit establishing their claim and the limitation period is long over for filing the suit.

6. Heard Mr.C.Suraj, learned Counsel for the petitioner and Mr.D.Baskar, learned Counsel for the respondents.

7. The learned Counsel for the petitioner, taking this Court through the relevant records, would submit that from the certificate, dated 28.03.1989, it is clear that there was no fault on behalf of the petitioners. The subsequent legal notices as well as the individual letters clearly portray that the petitioner has been consistently making the demands. From the letter of the Railways, dated 15.07.1991, it would be clear that the Railways considered the aspect and has refunded portions of the demurrage and wharfage charges upto 70%, 90% for the relevant periods. The same is expressly acknowledged that atleast a sum of Rs.2,08,760/-, is already received by them. The subsequent correspondences, including the petitioner's letter addressed to Senior Regional Manager, dated 19.05.2009, is relied upon. The learned Counsel submits that the filing of the earlier Writ Petition cannot be a bar in view of the prayer that was made and further part payment is also made. When the respondents, being the a