Ranjan Gogoi, J.
1. The challenge in the writ petition i.e. WP(C) No. 2631 of 2006 being in respect of actions pursuant to the order of the learned Single Judge impugned in the writ appeal i.e. W.A. No. 181 of 2008, both the cases were heard analogously and are being disposed of by this common order.
2.The facts in brief may be noticed at the outset.
The Metal and Scrap Trading Corporation Ltd. (MSTC), as the selling agent of the respondent Indian Oil Corporation Limited (Assam Oil Division), invited tenders for sale of materials as described in the schedule of items/rates enclosed as Annexure-1 to a tender notice, the closing/opening date of which was fixed on 3.8.2006. In so far as the present proceedings are concerned, of the various items offered for sale as mentioned in the Schedule of items/rates, the following would be relevant.
MATERIAL LIST CUM OFFER SHEETSl. No. LOT No. DESCRIPTION OF QUANTITY RATE (Excluding MATERIAL (APPROX.) taxes & duties)1 1 Scrap KTU Plant, (233.926 MT 1.000 LOTmechanical and Approx) Rs. Per lotelectrical In wordsitems etc. RsPer Lot
3.The tender notice incorporated certain terms and conditions of which the relevant clauses are extracted below:
2.2 The material quoted for may be inspected at the appropriate site(s)as indicated in the Schedule Rate(s) and the Tenderer should thoroughly satisfy themselves about the nature, condition, quantity and quality of the materials and working conditions. MSTC/Owners give no guarantee or warranty as to the condition of the material or its quality or its fitness for any specific purpose or use. It should be clearly understood that no claim/complaint about the quality, quantity and condition/fitness for use shall be entertained by MSTC/Owner.
3. QUALITY AND QUANTITY
3.1 The goods will be sold on 'As-is-where-is' and 'No Complaint' basis so far as the physical/chemical condition(s) of the same is/are concerned. The Tenderer(s) will, therefore, be deemed to have made themselves aware of the physical conditions, dimensions, size, weight, working conditions, chemical/ composition/ purity/ quality etc. by inspecting the material before submitting their tender and no complaint or claim in this regard, will be entertained by MSTC after submission of the Tender. The Owner/MSTC does not guarantee the chemical composition/ purity/ quality etc. of the materials and the composition/ purity etc. of the materials if indicated in the tender documents purely indicative and without any guarantee.
3.2 Tenderers may quote for all or any of the lots mentioned in the Schedule of Rates, but no quotation for part quantity of material in any particular lot will be accepted. Separate Earnest Money shall be payable for each of the lot quoted for.
3.3 Where the goods are sold on 'lot' basis and not by unit 'weight/number' basis the entire material lying in the lot will have to be lifted by the buyer(s) so as to clear the entire lot. The quantity, if indicated against the respective lots, is purely indicative and MSTC/Owner shall not entertain any claim/complaint from the buyer(s) for any deficiency in quality/ quantity/size/dimension or for refund of the whole or any part of the purchase money or loss of profit or interest damages or otherwise.
3.4 Where the goods are sold by unit i.e. weight or number and not on the basis of 'lot', the quantity indicated in such cases against the respective lots are purely indicative which in actual may turn out to be more or less then the indicated quantity. In case of the actual quantity turning out to be less than the indicated quantity after due completion of the lifting by the buyer(s), the buyer(s) shall not be entitled to claim any damages, loss of interest or compensation or any other account, but shall be entitled to proportionate refund only.
3.5 Whether there are items of more than one classification of any form in any lot and the tenderer quoted in lump sum for the entire lot instead of quoting in units per item, then no refund of any kind shall be entertained by MSTC/Owners, if the quantity whatever mentioned in the tender turns out to be less at the time of delivery. However, if the quantity turns out to be more than the tendered quantity, then the delivery of materials shall be limited to tendered quantity only.
14. ARBITRATION
14.1'Any dispute/s or difference/s whatsoever arising between the parties viz., the Seller, the Tenderer/ Buyer and MSTC out of or relating to the construction, meaning, scope, operation or effect of this Tender/Contract or the validity or the breach thereof shall be settled by arbitration of a Sole Arbitrator to be appointed by the Head of Office, by whatever name called of the Seller. The Arbitrator so appointed shall not be a person who had dealt with the matter/s in dispute. The provisions of the Arbitration & Conciliation Act, 1996 and the Rules framed thereunder or any amendment thereto shall apply to such arbitral proceedings. The award passed by such Sole Arbitrator shall be final and binding on the parties. The venue of the arbitration shall be Kolkata. The costs and expenses of such arbitration shall be borne equally by the parties.Subject to the above, legal proceeding, if any, arising out of this Tender/Contract shall be triable only by appropriate Civil Court in Kolkata only, to the exclusion of all other courts.
4. The appellant in the writ appeal who is also the writ petitioner in WP(C) No. 2631/2008 submitted it's tender pursuant to the aforesaid tender notice. By a communication dated 7.10.2006 the appellant/writ petitioner was informed that the tender submitted by it has been accepted at the offered amount of Rs. 31,51,555.00. The amount quoted by the appellant/writ petitioner was, thereafter, paid in two installments i.e. on 19.1.2007 and 20.7.2007. On receipt of the said amounts sale orders were issued in favour of the appellant/writ petitioner by the Chief Materials Manager of the Indian Oil Corporation Ltd. (Assam Oil Division). The appellant/writ petitioner thereafter started lifting the scrap material in question. However, in the first week of August 2007 the respondent Corporation obstructed the appellant/writ petitioner from lifting any further quantity of scrap material. In the above situation, the appellant/writ petitioner addressed a letter dated 6.8.2007 to the MSTC seeking its intervention in the matter. On receipt of the said communication dated 6.8.2007 the Senior Manager of the MSTC by a communication dated 7.8.2007 informed the Materials Manager of the respondent Corporation that as the sale to the appellant was of all the materials included in Lot No. 01 and the sale had been made on lot basis further delivery should be given to the petitioner. This was reiterated by the MSTC in another letter dated 16.10.2007. At this stage, the respondent Corporation issued a notice of e- auction of scrap material including 207.0 MT and 12.0 MT of scrap material of the KTU plant which materials, according to the appellant/writ petitioner, was already sold to them pursuant to the earlier tender process. The aforesaid two quantities of scrap material were shown as Lot Nos. 74(a) and 74(b) in the fresh notice of e-auction. In these circumstances, the appellant/writ petitioner instituted a writ proceeding before this Court registered and numbered as WP(C) No. 6307/2007. In the said writ petition interim protection was granted to the appellant/writ petitioner by this Court by order dated 13.12.2007. When the writ petition was listed before the Bench on 9.1.2008, the respondent Corporation informed the Court that the impugned notice of e-auction stood withdrawn. Accordingly, the writ petition was closed by the Court as infructuous.
5. Notwithstanding the aforesaid developments, the appellant/writ petitioner was not allowed to remove any further quantity of scrap material. Instead, by a letter dated 16.1.2008 issued by the Chief Materials Manager of the respondent Corporation, the appellant/writ petitioner was informed that it had, till date, lifted a total quantity of 301.870 MT of scrap material against the stipulated quantity of 233.926 MT thereby lifting a quantity of 67.944 MT in excess. Consequently, the appellant/writ petitioner was asked to make payment for the aforesaid excess quantity by the letter dated 16.1.2008. The aforesaid letter dated 16.1.2008 was followed by another letter dated 17.1.2008. The appellant/writ petitioner was further informed that the tender in which the appellant/writ petitioner had participated was for disposal of 'scrap KTU and electrical items etc. 233.926 MT approx.' in one lot. As the appellant/writ petitioner had already lifted 301.870 MT against the stipulated quantity of 233.926 MT the sale against the tender is complete. In these circumstances, the appellant/writ petitioner was informed that the respondent/Corporation had advised MSTC to dispose of the balance quantity of scrap KTU Plant by a fresh process pursuant whereto the said balance quantity was included as Lot Nos. 74(a) and 74(b) in the e-auction notice. The appellant/writ petitioner was further informed that as the writ petition filed by it has been disposed of as infructuous the question of issuing any balance quantity does not arise. Against the decision contained in the aforesaid communications dated 16.1.2008 and 17.1.2008 WP(c) No. 335 of 2008 was instituted by the present appellant/writ petitioner. While the aforesaid writ petition i.e. WP(C) No. 335/2008 was pending the respondent Corporation issued another e-auction notice with closing and opening date on 28.3.2008, once again, including the balance quantity of the scrap material of the KTU plant as Lot Nos. 74(a) and 74(b). Against the aforesaid e-auction notice another writ petition i.e. WP(C) No. 1058/2008 was filed by the appellant/writ petitioner.
6. Both the writ petitions i.e. WP(C) 335/08 and 1058/08 were disposed of by a learned Single Judge of this Court on 21.5.2008 by leaving it open to the appellant/writ petitioner to take recourse to arbitration as contemplated by Clause 14 of the terms and conditions of the contract. In view of the aforesaid order passed the learned Single Judge hearing the two writ petitions had no occasion to deal with the merits of the rival contentions in the two writ petitions in question. It is against the aforesaid order dated 21.5.2008 that Writ Appeal No. 181/2008 has been filed by the appellant/writ petitioner.
7. While the aforesaid writ appeal was pending another e- auction notice fixing closing and opening date on 25.6.2008 has been issued wherein the same scrap material has been included, once again, against Lot Nos. 74(a) and 74(b). Aggrieved, WP(C No. 2631/2008 has been filed wherein by interim order dated 25.6.2008 this Court had directed the respondents not to give effect to the decision, if any, with regard to the auction of the aforesaid two Lots. It will be required to be noticed, at this stage, that the opening and closing date in terms of the aforesaid e-auction notice has expired while WP(C) No. 2631/2008 has continued to remain pending.
8. We have heard Sri N. Dutta, learned Senior Counsel for the appellant/writ petitioner and Sri G. N. Sahewalla, learned Counsel appearing for the respondent Corporation. None has appeared on behalf of the other respondents in the writ appeal as well as in the writ petition under consideration.
9. Sri Dutta, learned senior counsel for the appellant/writ petitioner has submitted by referring to clauses 3.1 to 3.5 of the terms and conditions of tender (on acceptance whereof terms and conditions of the contract) that where the goods are sold on lot basis and not by units the entire material lying in the lot is required to be lifted by the buyer. Referring to the relevant part of the schedule of items/rates (Annexure-1 to the original tender notice) Sri Dutta has submitted that the entire scrap material of the KTU plant had been offered in one Lot and the appellant/writ petitioner's offer being for the Lot the consequential sale to the appellant/writ petitioner was in respect of all the materials included in the said Lot. In this regard, Sri Dutta has pointed out that the quantity mentioned in the details contained in the Schedule to the tender notice i.e. 233.926 MT is approximate. Under the different sub- clauses of Clause 3 of the terms and conditions of contract not only there is an obligation on the part of the appellant/writ petitioner to lift the entire quantity available in the Lot sold to it; there is an enforceable right to lift all such materials which in the present case has been sought to be curtailed by the respondent Corporation. In this regard, Sri Dutta has also drawn the attention of the Court to the letters dated 7.8.2007 and 16.10.2007 of the MSTC to the respondent Corporation wherein the aforesaid position has been clearly indicated by the MSTC. Sri Dutta has submitted that the offer of the appellant/writ petitioner pursuant to the tender notice being for the entire Lot, the acceptance thereof and payment of the entire amount resulting in the sale orders dated 19.1.2007 and 20.7.2007 has the effect of vesting all the materials of the KTU plant in the appellant/writ petitioner. In such circumstances, according to the learned Counsel, the demand raised by the respondent Corporation for the alleged excess quantity of 67.944 MT; the refusal of the respondent Corporation to allow the appellant/petitioner to lift the balance quantity and the subsequent e-auction notices including the said balance quantity as Lot Nos. 74(a) and 74(b) are wholly illegal and unauthorized.
10. Sri Dutta, learned Counsel for the appellant/writ petitioner, has further submitted that in the present case though there is an arbitration Clause (clause 14) requiring the parties to settle their disputes or differences by a process of arbitration, the only point at dispute between the parties is with regard to the interpretation of the various sub-clauses of Clause 3 of the terms and conditions of the contract. Sri Dutta has further submitted that there is no dispute between the parties on any of the facts relevant to the case. In such a situation, according to Sri Dutta, notwithstanding Clause 14 of the terms and conditions of contrct, it will be open for the Court to finally adjudicate the controversy between the parties by an appropriate interpretation of the different sub- clauses of Clause 3 of the terms of the contract. Sri Dutta has referred to a judgment of the Apex Court in the case of ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Limited and Ors. reported in : (2004)3SCC553 , to contend that a construction/ interpretation of the terms of a contract in an appropriate case can be made by the writ Court. Sri Dutta has also referred to another judgment of the Apex Court in Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. reported in : AIR2003SC2120 , wherein the Apex Court has laid down that the High Court under Article 226 can finally resolve a dispute arising out of a contract notwithstanding the existence of an arbitration clause in the contract between the parties.
11. In reply, Sri Sahewalla, learned Counsel for the respondent Corporation has urged that the present writ petition being for enforcement of contractual rights of the appellant/writ petitioner arising out of a non-statutory contract the same will not be maintainable. Sri Sahewalla has further urged that in view of the arbitration clause contained in the contract between the parties the resort to the writ remedy by the appellant/writ petitioner is not appropriate. In this regard Sri Sahewalla has referred to a judgment of the Apex Court in State of Gujrat and Ors. v. Maghji Pethraj Shah Charitable Trust and Ors. reported in : [1994]3SCR163 and another decision of the Apex Court in State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. reported in : AIR1996SC3515 . Sri Sahewalla has also referred to a decision of the Apex Court in Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors. reported in : AIR2000SC2573 , to contend that interpretation of a clause in a contract cannot be made the subject matter of a writ petition. Lastly, Sri Sahewalla has submitted that the decision of the Apex Court in ABL International Ltd. and another (supra) relied upon by the appellant/writ petitioner had been rendered in a situation where the contract between the parties did not have an arbitration clause as in the present case. In this regard Sri Sahewalla has specifically drawn the specific attention of the Court to paragraph 14 of the judgment in ABL International Ltd. and another (supra).
12. On merits Sri Sahewalla, learned Counsel for the respondent Corporation, has submitted that in the present case goods of different classifications having been included in the lot in question, it is the provisions contained in Clause 3.5 which will apply thereby authorizing the respondent Corporation to effect delivery of materials to the extent of the tendered quantity only. In this regard, Sri Sahewalla has pointed out that under the head 'description of materials' mentioned in the Schedule of items/rates an approximate quantity of 233.926 MTs was contemplated for sale in the Lot in question which quantity has already been lifted by the appellant/writ petitioner. Therefore, according to Sri Sahewalla, the appellant/writ petitioner is liable to pay for the excess quantity removed by it and the Respondent Corporation is authorized to put the balance quantity of the scrap materials of the KTU plant to further auction.
13. The rival submissions advanced on behalf of the contesting parties would require the Court to determine two principal questions that have arisen in the cases under consideration. The first is with regard to the maintainability of the writ petition. Closely connected is the further question - whether in view of the arbitration clause contained in the contract agreement between the parties the aggrieved party should be left with the option of availing the remedy of arbitration in accordance with the provision of Arbitration and Conciliation Act, 1996. The second issue that confronts the Court is whether the appellant/writ petitioner having submitted its tender for the scrap KTU plant which was offered for sale in one lot is entitled to remove the entire quantity of scrap which appears to be far in excess of the approximate quantity mentioned in the tender notice as 233.926 MTs. Naturally, the first issue has to be first answered by the Court and depending on the conclusion that the Court may reach the necessity of determination of the second issue will arise.
14. The maintainability of the writ petition has been challenged on behalf of the respondent Corporation on the ground that disputes arising out of a commercial contract and interpretation of clauses thereof cannot be adjudicated in a writ petition. In this regard reliance has been placed on the decisions of the Apex Court in State of Gujrat and Ors. v. Meghji Pethraj Shah Charitable Trust and Ors.(supra) and State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. (supra).
15. The question of maintainability of a writ petition on the ground that the dispute arises under a private commercial contract defies a ready answer. In fact the very precedents cited at the Bar makes it clear that for violation of a contract ordinarily (emphasis is ours) a writ petition is not the normal remedy. The position has been elaborately explained in the subsequent decision of the Apex Court in ABL International Ltd. and another (supra) in the following manner:
23.It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent.
27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality or a State arising out a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.
16. It is, therefore, our considered view that it is not an absolute proposition of law that a writ petition raising a dispute under a contract or seeking to enforce a right under a contract would not be per se maintainable. The question of maintainability of such a writ petition must be decided in the context of the facts of each case by taking into account the extent of demonstrated arbitrariness on the part of the State and the efficaciousness and effectiveness of the available alternative remedy.
17. However, the maintainability of a writ petition in the face of an arbitration clause in the contract agreement between the parties would stand on a different footing. An arbitration clause between the parties is an expression of the intention of the parties to resolve their differences by a process of arbitration in the event such differences arise. When the parties themselves have agreed to a means of resolution of their differences it would be wholly incorrect for one of the parties to such agreement to act in breach of it and to take recourse to the writ remedy under Article 226. The above is the foundation of the decision in State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. (supra). In fact, in ABL International Ltd. and another (supra) on which reliance has been placed on behalf of the appellant/ petitioner, the view expressed in State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. (supra) was approved and in paragraph 14 of the judgment it was made clear that the departure made by the Apex Court to interpret the terms of contract was on the ground that there was no arbitration clause in the contract in question. Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. (supra) is certainly not an authority for the proposition that an arbitration clause ought to be ignored in the event a challenge is made against an order of cancellation of a contract. The view expressed by the Supreme Court in that case that the dispute raised by means of a writ petition should have been entertained by the High Court, notwithstanding the arbitration clause, was in the special facts of the case i.e. that the cancellation of the contract was made on a non-existent ground. In the said case the dealership of the appellant before the Apex Court in petroleum products was initially suspended and subsequently cancelled. Both the aforesaid actions were based on a test report of a sample of kerosene oil taken from the premises of the appellant. The initial suspension order was challenged before the appellate authority which took the view that the test report of the sample was not acceptable as the same was prepared in violation of Government instructions with regard to analysis of a sample. As the test report was found to be unacceptable by the appellate authority while dealing with the order of suspension of the contract/licence, the Apex Court took the view that the said test report was not in existence so as to enable the State Government to rely on it to cancel the appellant's contract/licence. It is in these facts that the Apex Court took the view that the High Court was not justified in requiring the appellant to take recourse to the process of arbitration as visualized by the arbitration clause in the contract between the parties.
18. In the present case, Clause 14 of the contract between the parties clearly visualizes a resolution of the disputes/ differences that may arise between the parties by a process of arbitration under the Arbitration and Conciliation Act, 1996. A valiant attempt has been made on behalf of the appellant/ writ petitioner to show that the present is the case where no dispute on the core facts is discernible and the only question to be determined is one of interpretation of Clause 3 of the contract between the parties. We do not agree with the aforesaid contention advanced as our acceptance of the same would require us to speculate on the nature of objections and counter objections that the parties may be raised if the matter is to be referred to arbitration. Though it is possible for us to visualize some of such objections and counter objections, propriety and judicial discipline would require us to refrain from placing the same on record. However, our aforesaid perception in the matter would be sufficient to disincline us to resolve the dispute between the parties in exercise of our jurisdiction under Article 226.
19. A contention has been raised by the learned senior counsel for the appellant/writ petitioner that if this Court is inclined to send the matter to arbitration and we are now inclined to do so, the arbitrator should be appointed by the Court. We are afraid we cannot do so. The process of appointment of arbitrator/arbitrators is laid down in the arbitration clause between the parties and the provisions of the Arbitration and Conciliation Act, 1996 which must be allowed to govern the matter.
20. Learned Counsel for the appellant/ writ petitioner had further submitted that in the event the matter is to be sent for arbitration orders should be passed by the Court to maintain status quo of the property i.e. balance quantity of scrap materials in Lot No. 1. Section 9 of the Arbitration and Conciliation Act, 1996 empowers the Court defined in Section 2(e) to pass appropriate interim orders at any time before or during the arbitral proceedings or even after the making of the award. We are, therefore, of the view that it would not be appropriate for us to go into the said aspect of the matter and instead leave the same for determination by the competent court if an approach is made to it. However, having regard to the facts and circumstances of the case we direct the respondent Corporation not to auction or sell the aforesaid balance quantity of scrap materials from the KTU plant for a period of three months from today within which time the appellant/writ petitioner may approach the competent court by means of an appropriate application.
21. Consequently and in the light of the foregoing discussions the writ appeal as well as the writ petition i.e. WP(c) No. 2631/2008 shall stand disposed of.