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Judgment
Yogesh Chandra Gupta, J.
We have heard Sri Ranjit Saxena, learned counsel for the petitioner and Sri U.N. Sharma, learned Senior Counsel, assisted by Sri Chandan Sharma, Advocate, for the respondents No.1, 2, 4 and 7 and Sri Govind Saran, learned counsel appearing for 3, 5 and 9.
The grievance of the petitioner that as per the terms of the agreement dated 6th October 2008, it was provided that rates fixed in Clause 6.7 of the agreement were subject to the periodic revision on six months basis, it was to be proposed by the licensee and subject to approval by IRCTC. The petitioner sent a proposal on 12.3.2009 and further proposal was sent on 4.4.2009 and even thereafter Annexure Nos. 2 to 20 of the writ petition but no approval has been granted by IRCTC though it was the duty of IRCTC that once the proposal was submitted by the petitioner who was licensee, the order granting approval or disapproval was required to be passed by IRCTC.
Learned counsel for the petitioner has urged that as per the terms of the contract, the total amount payable by him was Rs.63,53,500/ plus 80,00,000/. The petitioner has paid a sum of Rs.1,35,00,000/ as stated in paragraph No.39 of the writ petition and the respondents are recovering an amount of Rs.34,69,104/ from the petitioner towards licence fee.
Sri U.N. Sharma, learned Senior Counsel for the respondents, has urged that proposal given by the petitioner on 3.3.2009 and 4.4.2009 were premature. It is true that the petitioner has made representation within six months period but these proposals became effective and worth consideration after six months period was completed and thereafter it should have been considered by IRCTC.
It is further urged that there is arbitration clause in the agreement, therefore, the petitioner should invoke the arbitration clause. Learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Harbanshlal Sahnia Vs. Indian Oil Corportion Ltd, (2003) 2 SCC 107, where the Hon''ble Apex Court has held that the alternative remedy of arbitration would not apply where the action of the respondents are not based on relevant and proper cause. We are of the opinion that Clause 6.7 has been violated by the respondents, therefore, the remedy of arbitration is not an appropriate remedy so far as the instant case.
Learned counsel for the respondents has further urged that as per Clause 7.3, since the petitioner did not deposit the entire licence amount, therefore, the agreement was liable to be terminated. For the fault of the respondents in complying with the provision of Clause 6.7, the respondents could not have terminated the agreement of the petitioner.
We dispose of this writ petition with the direction to respondent No.1 to take a final decision in the matter of petitioner with regard to revision of prices fixed of the items mentioned in Clause 6.7 of the agreement within a period of one month from the date a certified copy of this order is produced before respondent No.1.The respondent No.1 shall decide the question that whether the respondent No.1 is liable to pay compensation to the petitioner along with 20% interest for the period during which the respondent No.1 did not take decision in pursuance of the agreement entered into between the parties in Clause 6.7.
Till the matter of the petitioner is decided, the recovery proceedings against the petitioner initiated by the respondents shall be kept in abeyance.