Shri Nanhelal Sah vs Food Corporation of India & Ors

Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason to

entertain this writ petition.

The sum and substance of the matter is that the petitioner, who had been appointed as Transport Contractor for the respondent Food

Corporation of India for carrying out the transportation work from Railway siding Barpeta Road/CWC Sorbhog to FSD Tura (NEFR) via

Weighbridge for a period of two years under the work order dated 22.06.2016, has filed a title suit bearing No. 5 of 2017 in the Court of

Assistant to the Deputy Commissioner, Tura for being aggrieved of the Notice Inviting Tender [NIT] issued by the respondents on 02.06.2017 for

appointment of another contractor at his risk and cost. Along with the title suit, the petitioner also filed an application seeking temporary injunction

under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure with the prayer that the respondents be restrained from

appointing another contractor under the NIT in question. The learned Trial Court earlier granted an ad-interim injunction but ultimately rejected the

prayer for temporary injunction by its order dated 31.07.2017. Aggrieved, the petitioner preferred an appeal, being Misc. Civil Appeal No. 1 of

2017 that has been considered and dismissed by the learned Additional Deputy Commissioner (Judicial)/District Judge, Tura by the impugned

order dated 14.12.2017. The learned Appellate Court, after having examined the record, has endorsed the findings of the Trial Court while

observing as under:-

It is seen from the record that there are continuous shortfalls in the supply of foodgrains by the Appellant who cannot meet the demands of the

FCI for which the Respondents/FCI has no option but to invite another NIT during the subsistence of contract with the Appellant and even under

Clause XI Sub-clause (c) the Respondent can invite Tender while another contractor is still there and has the right as per the MTF to appoint

another contractor. TheLd. Trial Court has correctly observed that according to the said model tender form, there is a provision for summary

termination of the contract where the General Manager can at his own discretion, without terminating the contract is at liberty to engage other

labour/trucks etc at the risk and costs of the contractors who shall be liable to make good to the Corporation all additional charges, expenses,

costs or losses that the Corporation may incur or suffer hereby. The Ld. Trial Court has further observed that it would be best and in the interest of

the public to allow the Respondent/defendants to open the new tender without terminating the term of the appellant/plaintiff until his contract

agreement ends since the Appellant/plaintiff alone cannot meet the demands of the Corporation and the same if not met would cause great shortage

in the supply of foodgrains. Thus, it is seen that the Ld. Trial Court after taking into account the relevant facts has given its findings as per the

settled principle of law while considering the grant of injunction. This Court therefore finds that there is no prima-facie case.

Based on the above noted facts, this Court is of the opinion that the Ld. Trial Court has rightly concluded that there is nothing in the pleadings

to satisfy it that the Appellant will suffer irreparable injury and balance of convenience in his favour when the prima facie case is found wanting. In

absence of Prima Facie case the balance of convenience and irreparable loss and injury need not be discussed anymore. Thus this Court finds that

there is nothing to indicate that the Ld. Trial Court has exercised its discretion arbitrarily, or capriciously or perversely or ignored the settled

principles of law regulating grant or refusal of interlocutory order for injunction. The Appellate Court can always look into whatever evidence is

available on record to determine a case.

The observations foregoing appear to be in accord with the principles of law governing the case and the order impugned does not appear

suffering from any jurisdictional error so as to call for interference in the writ jurisdiction.

Learned counsel for the petitioner endeavoured to submit that even if the respondents appoint another/additional contractor for the work in

question, the same may not be at his risk and cost because he had been working for about one and a half year and thereby, a substantial part of the

term of his contract is already over. This Court would not be making any comment as regards this submission because the title suit filed by the

petitioner is pending before the Trial Court. The petitioner is otherwise free to take steps for adjudication of all other issues that exist or may arise

between the parties as regards this contract matter. The considerations herein are confined only to the question as to whether the petitioner is

entitled for a temporary injunction in the matter; and in this regard, as observed hereinabove, the subordinate Courts have proceeded on relevant

considerations and on the applicable principles. Hence, there is no case for interference.

Accordingly and with the observations foregoing, this petition stands dismissed summarily.