IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.06.2024 CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.No.23311 of 2021 and WMP.Nos.24583 of 2021 & 27974 of 2023 K.P.R.Cargo Movers Represented by its Proprietor, P.Karthikeyan

02/20, Nannian Street, Walltax Road, Park Town, Chennai 600 003 ...Petitioner Vs.

Union of India, Ministry of Railways, Railway Board(Southern Railway), Represented by Senior Divisional Commercial Manager, Chennai Division, Southern Railway, Chennai 600 003 ... Respondent PRAYER: Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records of the respondent in M/c.206/SLR/12840/R1 and quash the order dated 16.10.2021 passed therein and further direct the respondent to consider the representation of the petitioner dated 19.05.2021, 08.06.2021, 26.07.2021, 16.08.2021, 02.09.2021 and 21.09.2021.

For Petitioner : Mr.S.N.Kirubanandam For Respondent : Mr.M.Vijay Anand, Additional Standing Counsel

ORDER

This writ petition has been filed challenging the order passed by the respondent dated 16.10.2021 thereby rejected the request made by the petitioner for withdrawal of the contract.

2. The petitioner is engaged in cargo handling services. The respondent had floated tender for train No.12840 compartment R1 to 4 tonnes parcel space from MGR Central to Howrah (MAS to HWH) for a period of five years with effect from 10.03.2020 to 09.03.2025. The said train runs on seven days in a week with leave of five days in a year. The total value of the contract for five years excluding GST is Rs.7,65,50,598/-. As per the terms and conditions of the contract, 60 days surrender notice is to be given to the respondent for rescinding the contract. According to the petitioner, due to covid 19 crisis, the petitioner could not able to continue the contract and as as such, request was made for withdrawal of the contract and also seeking refund of the security deposit amount which was deposited by the petitioner at the time of awarding contract. However, the said request was rejected by the order impugned in this writ petition on the ground that the scenarios which are mentioned in the contract are not applicable to the petitioner. Since as per the agreement, the contract shall be operated for atleast one year (10+2 months notice period) to withdraw from the contract or one has to forego securit deposit and close the contract.

3. The respondent filed counter and the learned counsel appearing for the respondent submitted that as per the contract, the petitioner ought to have completed a period of 10 months + 2 months notice period. However, the petitioner did not even complete one year period and as such, the request made by the petitioner for withdrawal of the contract cannot be considered without forfeiture of the security deposit. He further submitted that though the petitioner made request for withdrawal of the contract by its communication dated 28.01.2021, subsequently by its communication dated 10.03.2021, the petitioner made request to withdraw the notice dated 28.01.2021. Subsequently, the petitioner made request for cancellation for withdrawal of contract only on 19.05.2021. He further submitted that as per the agreement, there is an agreement clause No.27.0 which is an arbitration clause in the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or differences on any account or as to withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within a period of 120 days. Therefore, the writ petition is not maintainable.

4. Heard, the learned counsel appearing on either side.

5. On perusal of the records revealed that the petitioner made request on 28.01.2021 itself seeking withdrawal of the leasing contract of