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Judgment
(a),"Claim Bill for extra lead involved in
carriage of loading from stockyard
of
Railway upto 15.04.2008.","Rs. 2,00,37,565/-",
(b),"Withheld money against forest
royalty","Rs. 3,67,655/-",
(c),"Withheld money deduction against
running account bill","Rs. 2,00,000/-",
(d),"Bill for work done, not yet
measured","Rs. 18,00,000/-",
(e),"Entire Security Deposit Amount (as
deducted from the bill of the
petitioner.","Rs. 80,00,000/-",
Total,,"Rs. 3,04,05,285/-",
,Lead,,
,Average,Maximum,Minimum
North Guide Bund,2.0,3.3,0.7
South Guide Bund,1.25,2.0,0.5
It is submitted on behalf of the UPSBCL that the work in question was awarded to the petitioner as sub-contractor on back to back basis, meaning",,,
thereby that the petitioner would be entitled for payment in respect of quantity of work accepted by the Railway. The petitioner raised a claim for,,,
extra lead contrary to the agreement and did not resume the work despite the respondents having extended the time for execution of work and as a,,,
result, the UPSBCL suffered considerable loss and finally terminated the agreement at the risk and cost of the petitioner. It is further stated that even",,,
after attachment of the security deposit of the petitioner,",,,
UPSBCL is entitled to recover roughly about Rs. 2.70 crores towards extra cost incurred in taking work from another agency and further amounts on,,,
other counts, in all aggregating to Rs. 3.83 crores. It is further submitted that the petitioner has merely sought to raise a money claim without any point",,,
of law being involved, which is thus beyond the purview of writ jurisdiction.",,,
Without prejudice, it is further submitted that even on merits, the petitioner has no claim in view of Clause 38 of the GCC according the which the",,,
distance was merely indicative and not to be used for the purposes of any measurement of lead. It was categorically stated that no claim whatsoever,,,
would be entertained for any change or inaccuracy in the distances mentioned. It is further submitted that the UPSBCL is not liable to make any,,,
payment to the petitioner in pursuance of the back to back agreement inasmuch as the claim was not admitted by the Railways and no payment had,,,
been received, as clarified in its letter dated 19.06.2008 (Annexure-6). More significantly it is pointed out that the petitioner has not brought a copy of",,,
the entire agreement dated 30.01.2006 on record as the Annexures thereto are not complete and which have been brought on record in the,,,
supplementary counter affidavit filed by the UPSBCL.,,,
It is pointed out that the form of ‘letter of application by the tenderer’ (at page 334) required the petitioner to certify that it had perused the,,,
tender documents and visited the sites and had satisfied itself as to the nature of work and site condition. Clause 11 of the Technical Specification and,,,
the Special Conditions of Contract (at page 357) clearly provided that the quoted rate for boulder would be of approved quality and specification,",,,
would include the cost of boulder, its transportation to the work site and stacking. Clause 64 of the GCC (at page 32) further stated that the contractor",,,
would not be entitled to make any claim under the cover of that contract, nor the UPSBCL would entertain and consider any sort of claim made by",,,
the contractor. Learned counsel for the UPSBCL also invites reference to the agreement form (Annexure-1), Clause 4 whereof adopts and deems",,,
certain documents to form and be construed as part of the agreement including the form of agreement, meaning thereby the main agreement entered",,,
into between the UPSBCL and the East Central Railway (for short “the ECRâ€). It is therefore, submitted that the petitioner is bound to abide by",,,
the decision of the ECR as the principal agreement and the agreement between the petitioner and the UPSBCL are both interlinked.,,,
I have heard the parties at length and have given my careful consideration of the materials on record. The petitioner has restricted his claim only,,,
with respect to payment for extra lead. From the various correspondences adverted to by the petitioner, a case is sought to be made out that as",,,
against the expected lead indicated in Clause 38 of the agreement, the actual lead was far in excess, which necessitated extra cost to be incurred by",,,
the petitioner. At first brush, the submission of the petitioner appears rather attractive. However, there is another facet of the matter which cannot be",,,
ignored. As pointed out on behalf of the respondents, a reading of the agreement as a whole presents a slightly different picture, particularly in view of",,,
the annexures to the agreement left out by the petitioner and later brought on record by the UPSBCL. The moot question is whether, even if the work",,,
involved extra lead, the petitioner could be heard to complain in that regard. There are ample provisions in the agreement itself to indicate that it was",,,
the duty of the petitioner to satisfy itself with respect to the nature of work and site condition at the threshold itself, as the quoted rate for boulder had",,,
to include the cost of transportation to the work site and stacking. More significantly, the petitioner had agreed that it would not be entitled to make",,,
any claim and that UPSBCL would not entertain and consider any claim made by the petitioner under the cover of the contract. Clause 4 of the,,,
agreement form adopted the principal agreement between the UPSBCL and the respondent-ECR. As such the petitioner cannot claim a right over,,,
and beyond what was found admissible by the respondent-ECR. In the present case, the petitioner’s claim was forwarded by UPSBCL to the",,,
ECR and the petitioner was informed by letter dated 06.11.2008 that the claim of the petitioner would be considered if the matter was resolved in its,,,
favour upon being processed through arbitration with the Railway. The petitioner cannot therefore claim an independent right to be paid for the extra,,,
lead regardless of the result of arbitration with Railway. Moreover, the UPSBCL in para 13 of its counter affidavit has made averments with respect",,,
to a counter claim for Rs. 3.83 crores against the petitioner by way of loss incurred by it by reason of default on the part of the petitioner, which may",,,
also require consideration.,,,
The petitioner has relied on Section 70 of the Indian Contract Act, 1872 in the alternative to submit that the conditions thereof having been fulfilled,",,,
UPSBCL was liable to make payment for the extra lead. Reliance has been placed on various decisions noted above. The submission of the petitioner,,,
appears appealing but only until a closer scrutiny is made. In my view, Section 70 of the Act, which appears under Chapter V “Certain Relations",,,
Resembling those created by Contract†cannot operate to supersede the specific terms agreed upon by the parties under a written contract.,,,
In the present case, the parties have specifically agreed that no claim under the cover of the contract would either be raised by the petitioner or",,,
entertained by the UPSBCL and hence Section 70 of the Act cannot be brought into play under such circumstances. The judgment of the Hon'ble,,,
Supreme Court in State of West Bengal vs. M/s B.K.Mondal and Son, AIR 1962 SC 779 relied upon by the petitioner also supports the above view. In",,,
that case, the application of Section 70 of the Act was being considered in the backdrop of an alternative submission that the contract in question was",,,
invalid. The Hon'ble Supreme Court observed in para 14 of the judgment as follows â€",,,
“14…….. Section 70 occurs in Chapter V which deals with certain relations resembling those created by contract. In other words, this chapter",,,
does not deal with the rights or liabilities accruing from the contract. It deals with the rights and liabilities accruing from relations which resemble those,,,
created by contract……â€,,,
The other decision in Engineer Co-operative Society Ltd. vs. A & N Administration and Others, AIR 2009 Calcutta 284 (supra) relied upon is also",,,
in the same vein to the effect that Section 70 of the Act comes into operation only in the absence of a contract. This is evident from the observations,,,
in para 2 of the judgment as follows â€",,,
“2. Section 70 in the statute book has been provided in case where there is no contract but something has been done by one party not intending to,,,
do so gratuitously and the other party has taken benefit without any demur and objection and obviously the party who has taken benefit is bound to,,,
compensate……….â€,,,
I need not delve into the issue of maintainability of the writ petition as urged by the UPSBCL. In the given facts and circumstances of the case,,,
and in view of the provisions contained in the agreement entered into between the parties, I am not inclined to interfere in the matter in exercise of",,,
powers of extraordinary writ jurisdiction. It will however be open to the petitioner to seek redressal of its grievances before any other forum as may,,,
be available to it in accordance with law.,,,
The writ petition stands dismissed.,,,