TaxTMI 
TaxTMI 
2010 (1) TMI 427
X X X X Extracts X X X X
X X X X Extracts X X X X
....proposing to dispose of different materials including HMS contained in 30 containers by public auction on "As is where is" basis. In the auction notice neither the reserve price nor weight nor quantity was mentioned. 3. Pursuant to the auction notice petitioner paid the entry fee of Rs.250/- and also deposited a refundable security of Rs.20,000/- for participating in the auction. The dates of inspection of material at ICD, Tughlakabad were fixed on 10th, 13th and 14th June, 2005. 4. The petitioner contended that during the course of auction while inviting bids for the lots numbered at serial numbers 39 and 59 it was declared orally by the officials of the respondent no.2 that lot number 39 contained 4 containers and lot No.59 contained one container having approximately 19 tones of HMS scrap per container. Assertion of the petitioner is that relying on the representations and the details given by the respondent the petitioner formulated his bid and quoted an amount of Rs.15,10,000/- for lot no.39 and Rs.34,000/- for lot no.59. The bid of the petitioner was accepted and on acceptance of his bid petitioner tendered the advance of 30% amounting to Rs.4,55,000/-. 5. According to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e custom authorities to know about the valuation of the goods put up for auction under RTI Act vide application dated 20.4.2006. However, the information was not provided as the date of auction was wrongly mentioned as 30.5.2005. Even custom authorities refused to divulge any information and by letter dated 6.5.2006 respondents again called the petitioner to take delivery of the goods and by another letter dated 8.5.2006 the respondents again demanded the petitioner to take the goods which were auctioned on "as is where is" basis. The petitioner thereafter served legal notice. The assertion of the petitioner is that he is losing Rs.5,000/- per day on account of ground rent and payment to the transporters besides brokerage and huge amount of capital invested in the goods. The action of the respondents is challenged inter alia on the grounds that the action of the respondents should be transparent in public offices and the respondents are liable to render information regarding the valuation of the goods. The respondent has knowingly and willfully given much inflated projection of the quantity of goods and deliberately failed to specify the quantity in the relevant auction notice whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons which were read and understood by the petitioner. Petitioner had paid full balance payment of Rs.2,47,160/- inclusive of sales tax against lot No.59 without payment of applicable late payment surcharge and the ground rent and no demand was made against lot no.39. An amount of Rs.7,74,472/- was deposited by the petitioner on 17.2.2006 towards lot no.39 and the balance amount was paid on 18.2.2006 and an amount of Rs.2,20,814/- paid towards ground rent and surcharge. 10. The allegation of the petitioner that the weight of the goods was orally disclosed at the time of auction was refuted by the respondent contending that no weight or quantity was disclosed nor any claim in that regard could be entertained. The respondent contended that they were entitled to fix the terms and conditions of the auction under section 64 of the Sale of Goods Act which were fixed and the auction was held on those terms and conditions only. The goods for auctioned on '"as is where is basis". Neither the reserve price was fixed nor the weight was disclosed. The bids were submitted by the petitioner after inspecting the goods and bid of the petitioner was accepted leading to a concluded contract between....
X X X X Extracts X X X X
X X X X Extracts X X X X
....port of pleas and contentions on behalf of the respondent. 13. The learned counsel for the parties were heard at length and writ petition, reply and the documents and the judgments relied on by the parties have been perused. It may not be necessary to refer to all the precedents relied on by the parties as the ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases as was held by the Supreme Court in Rafiq VS State, 1980 SCC (Crl.) 946. The ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Supreme Court in Bharat Petrol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y external aid. In fact no detailed disputed questions of facts were involved. 15. In State of Bihar Vs. Jain Plastic and Chemicals Ltd, (2002) 1 SCC 216, the Apex Court had held in para 7 as under: 7. In our view, it is apparent that the order passed by the High Court is, on the face of it, illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs. 16. From the above it is apparent that normally if a writ involves serious dispu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the goods left will involve complicated question of fact and the material requires thorough proof on factual aspects and in the circumstances the High Court ought not to have entertained the writ petition. The Apex Court was of the view that whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of the dispute and if the dispute cannot be resolved without going into the factual controversy the High Court should not entertain the writ petition. The question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on the facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised. The Apex Court had also referred to the case of Radha Krishna Aggarwal (Supra) holding that where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and in exercise of executive power of the State, no writ order should be issued under Article 226 to compel ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by a committee consisting of a representative of the custodian, Government approved valuers and a representative of the customs for working out the reserve prices of the consignment to be auctioned. 20. The Assistant Commissioner on the receipt of the list of such goods which have not been cleared for more than 45 days has to scrutinize the list and withdraw certain categories of goods for the proposes of sales. Reliance has been placed by the petitioner on the board's circular No.7/2004-CUS dated 28.1.2004 which prescribes the procedure for disposal of uncleared/unclaimed cargo landed upto 31st March, 2003. The said circular was further extended for disposal of the goods upto 30th April, 2004 by circular No.35/2004-CUS dated 20th May, 2004. By such circular the time was extended from 30th April, 2004 to 31st December, 2004. 21. According to the petitioner the root cause of the problem is compulsion by Concor, respondent No.2 to lift the containers despite the quantity of scrap being 40 to 50% less than the projected/representative weight. Assertion of the petitioner is that the respondent No.2 knew and ought to have known the weight of the scrap in the containers as the proced....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tice itself. One of the plea for adjudication in the circumstances will be that if the respondent had disclosed the weight of the goods in other tender notices, were they liable to disclose even in this case of the petitioner also where tenders were filed by the petitioner. What would be the ramification of not disclosing the weight in the facts and circumstances would also require adjudication which will depend on various disputed question of facts. The petitioner has also allegedly raised a presumption that in case the weight was not disclosed by the respondent, then it is to be presumed that it was known to the respondent and the plea of the petitioner that the weight was orally communicated to the petitioner should be accepted. This plea of the petitioner is countered by the respondents by specifically contending that the auction on June 15, 2005 was conducted by SMG B.T. Pvt. Ltd and in the circumstances the plea of the petitioner that the officials of the respondents had disclosed the weight of containers orally to the petitioner is not justified and is factually incorrect. In the circumstances only during trial of these disputed facts an inference can be drawn whether the we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....losed and later on the weight was found to be less, it will not be justifiable and appropriate to cancel the contract or to award damages to the petitioner against the respondent and absolve petitioner completely of his liability under the agreement, especially in view of the plea taken by the respondent that in the letter of 7th April, 2006 it was stated that the goods are half in containers and half loaded in truck but the quantity of goods found in the containers was not given and it was only later on the plea was raised that goods were less than what was disclosed orally. It has been categorically pleaded that the plea of the weight of the goods being less was not taken contemporaneously. The version of the respondent is also being justified that the goods were received by the shipping line on the basis of weight disclosed by the shipper and not the weight given after actual weighing and in the circumstances there is a possibility of goods being short shipped by the exporter. The respondents have also contended that out of 113 containers auctioned on June 15, 2005 out of which 30 were for HMS, the shortage is complained only in case of petitioner and by no one else. In the circ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence to find out the intention of the parties. Under Section 92 of the Evidence Act where a written instrument appears to contain the whole terms of the contract then the parties to the contract are not entitled to lead oral evidence to ascertain the terms of the contract. 28. It is now well established that to qualify for an order or decree which concludes one or another issue, the averments and the pleas should be unconditional and unambiguous. Such admissions cannot be and should not be allowed to be inferential admission as it may be possible to have different inferences and the Court should not deduce an admission as a result of interpretive exercise. The substantial plea of the petitioner is based on the submission relying on the circulars and other facts pleaded that the weight ought to have been disclosed by the respondent and in fact the weight of the containers was disclosed by its officials orally. This plea has been consistently denied by the respondent by contending that weight was not disclosed in the tender notice nor it was obligatory on the respondent to declare the weight of the goods to be auctioned as per Section 48 of the Customs Act. The dispute on the basis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner & Ors.: [1975] 3 SCR 254 at p. 266(AIR 1975 SC 1121 at p. 1126) wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. The High Court could not have converted writ petition into a suit for recovery of damages and that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.(para 10 page 747) 32. Similarly, in Orissa Agro Industries Corporation Ltd v. Bharti Industries, (2005) 12 SCC 725 it was held that no writ, order can be issued under Article 226 to compel the authorities to provide a remedy for breach of contract. In the instant case the disputes related to the disputed questions of fact and were not dealt with in the writ petition. In State of Haryana & Ors v. Lal Chand and Ors, AIR 1984 SC 1326 it was held that persons who offer their bids at an auction to vent country liquor with full knowledge of the terms and conditions attached thereto, cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids by a pe....