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2022 (4) TMI 1578
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....etitioner's security deposit of Rs. 23,02,661/- was forfeited and the petitioner was restrained from taking part in the tender of the North Eastern Railway for the next two years. The impugned letter referred to Scenario-3 of a letter dated 3rd December, 2020 which provides for termination of the contract between the Railways and the Leaseholder (petitioner). 2. The petitioner emerged as the successful bidder for a tender for lease of 23 tonnes parcel space and a Lease Agreement was executed between the petitioner and the Railways for a period from 17th January, 2020 to 16th January, 2025. The operation of the trains was suspended by the Railways by reason of the Covid-19 pandemic. The petitioner thereafter declined to accept the offe....
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....ounsel appearing for the respondent Railways submits that the facts of the present case do not give rise to a cause of action which would confer jurisdiction on this Court and that this Court should not interfere in the case of a determinable contract. Counsel relies on the clauses in the Agreement which entitle the respondent to forfeit the security deposit and that the contract was liable to be terminated since the petitioner (Leaseholder) failed to operate the contract continuously for 10 days without giving any notice. Counsel places emphasis on clause 23.2 of the Agreement under which the North Eastern Railway has right to terminate the contract as a punitive measure without giving any notice for breach of agreement. Counsel urges that....
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....use of action, wholly or in part, arises, to issue directions, orders or writs notwithstanding that the seat of the Government or authority is outside the territories. In Om Prakash Srivastava vs Union of India; (2006) 6 SCC 207, the Supreme Court held that in order to maintain a writ petition, a writ petitioner must establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat. This view was reiterated in Nawal Kishore Sharma vs Union of India; (2014) 9 SCC 329. 6. With regard to the objection taken as to the petitioner having an alterna....
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....cipating in any tender and suffering a termination by the act of the Railways, the issue of breach of the petitioner's fundamental rights is patently evident from the facts. The petitioner has also been blacklisted without being afforded an opportunity of being heard which is also a breach of principles of natural justice. The petitioner hence has a right to approach the Writ Court notwithstanding the arbitration clause in their Agreement. The arbitration clause (clause 26.4) is in any event, limited to dispute arising out of construction or operation of the contract and other matters stated therein and excluding the excepted matters referred to in clause 63 of the conditions. 7. In Oil and Natural Gas Commission vs Utpal Kumar Basu; (1994....
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.... 692 is only for the proposition of the severability of an arbitration clause from the underlined contract. Assistant Excise Commissioner vs Issac Peter; (1994) 4 SCC 104, has been cited for the proposition that the doctrine of fairness could not be invoked to amend, alter or vary the express terms of the contract between the parties. This decision is of no relevance since there is no attempt on the part of the petitioner to alter the terms of the Agreement. 8. With regard to the merits of the writ petition, it is evident that the respondent Railways has invoked clause 23.2 of the Agreement in terminating the contract. Clause 23.2 gives the right to the Railways "to terminate the contract/agreement for any reason whatsoever after serving o....
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.... under clause 23.1 of the Agreement to terminate the contract and sought refund of the security deposit. Clause 23.1 provides for the Leaseholder's right to terminate the Agreement after giving 60 days notice to the Railway administration after the Leaseholder has completed ten months (plus two months notice period) of the contract. The petitioner's right of termination is supported by clause 23.1. It is also relevant that the Lease Agreement executed between the parties was only in relation to a specific train name and number 13020/13019 for transportation of parcels from Kathgodam to Howrah and back. It does not provide for the petitioner plying any other train which the petitioner was compelled to do by the action of the respondent Railw....