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Judgment
In view of the good grounds shown, the delay of about 72 days in preferring the appeal is condoned and the appeal is taken on board.
The only issue in the appeal is whether the two demand notices that were challenged by the writ petitioner-respondent in proceedings under Article 226 of the Constitution of India amounted to a claim in penalty and not one for compensation or damages. The judgment and order impugned dated October 26, 2022 set aside the demand notices for sums in excess of Rs.54 lakh and Rs.74 lakh only on the ground that the claims were in the nature of a penalty.
There does not appear to have been any exercise undertaken, in course of the adjudication of the writ petition, as to whether the entirety of the two demands could be said to be claims in penalty or parts thereof could have been claims on account of damages suffered for the writ petitioner failing to lift the annual contracted quantity.
It is submitted on behalf of the respondent herein that the entirety of the shortfall was subsequently sold by the appellant herein and, as such, there could have been no claim on such account otherwise than by way of penalty.
However, an adjudication on such aspect requires evidence to be received as to the rate at which the shortfall was sold, the time for which the shortfall had to be preserved for the respondent herein to lift the same and like issues.
Since the respondent seeks time, let the matter appear three weeks hence.
MC(WA) No. 5 of 2023 is disposed of.
List on April 20, 2023.