The issue price for recovery under the Model Tender Form cannot be interpreted as dependent on subsidized rates for specific schemes.

1. Controversy, shorn of all details is whether the Food Corporation of India (hereinafter referred to as FCI) can recover Rs. 4,72,98,414/- (Rs. Four Crores Seventy Two Lakhs, Ninety Eight Thousand, Four Hundred and Fourteen Only) from the petitioner (Road Transport Contractor), pursuant to order dated 14.10.2009, in terms of terms of Clause XXI(6) of the Model Tender Form (hereinafter referred to as 'MTF') (executed between the parties) on account of non - supply of 123 truckloads of material dispatched by it i.e. food grains, through the petitioner. Clause XXI(6) of the Model Tender Form is reproduced hereunder:

XXI. Duties and Responsibilities of the Contractors and their liability for losses etc. suffered by Corporation.

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6. 'The contractor shall be liable to make good the value of any shortage, wastage, loss or damage to the goods in transit at two times the issue rate, as applicable from time to time, for all food - grains and commodities other than sugar and three times the issue rates as applicable from time to time in respect of sugar when the General Manager (whose decision shall be final) besides that the difference between the weights taken at the despatching and receiving ends is negligible and is due to discrepancies between the scales gain on loss in moisture or other causes beyond the contractors control'.

2. Learned Counsel for the petitioner very fairly concedes that admittedly out of 352 trucks carrying food grains consigned by the FCI through the petitioner for supply in the valley for distribution through Public Distribution System, 123 truck loads of food - grains were never delivered by the petitioner to the FCI. Learned Counsel sought to explain the same by stating that although requirement as per terms and conditions agreed upon between the parties was for unloading of the consigned stocks from trucks in FCI godowns, instead, attempts were made by the petitioner's representatives to unload the stocks elsewhere i.e. CAPD godowns. However, 123 truckloads of foodgrains were never delivered leading to issuance of Show Cause Notice, Annexure - D dated 03.12.2009 calling upon the petitioner to explain within 15 days of the receipt of the notice as to why action as contemplated in terms of the MTF and the law governing the field be not taken for not delivering stock of food grains and sugar meant for TPDS beneficiaries.

3. Learned Counsel has referred to the petitioner's stand as noted by the FCI at page Nos. 41 and 42 of the paper book. The same is reproduced hereunder :

'Ch. Nagar Singh - Ch. Nagar Singh in his reply dated 12.12.2009 has explained that trucks dispatched to Kashmir valley from December 08 to August 20098 remained unreconciled due to various factors like Assembly elections, parliamentary elections and Shopian incidents when most part of Kashmir valley observed prolonged bandh and hartal situation. This was coupled with acute storage capacity constraint with FCI and non availability of matching financial arrangement by CAPD department. During this period working of Cl and CAPD department was hampered and either the trucks remained stranded for days together or acknowledgements were provided after the stocks were properly accounted for after prolonged period. Without considering these ground realities FCI issued unilateral orders for recovery of costs involved in 123 pending consignments. Whenever their representatives approached Area Manager for allowing acceptance of stocks involved in these 123 trucks the permission was refused on the ground that FCI Zonal Officer had instructed RO Jammu not to accept any stocks unloaded in CAPD godowns. The RTC is repeatedly approaching this office with the plea that he is even today prep