Decided on July 12,2022



T.AMARNATH GOUD,J. - (1.)Initially a petition was filed under article 226 of the Constitution of India for issuing of writ in the nature of certiorari quashing the letter No. G.12/NERFR/MOVT/DC/Agt/Part/09/14597 dtd. 22/12/2015 issued by the respondent No. 2 relating to fixation of purported demurrage charge in compliance to judgment and order dtd. 27/2/2015 passed in WP(C) 79 of 2010. The petitioner has also urged to issue writ in the nature of mandamus directing the respondents to refund an amount of Rs.32,47,763.00 deducted from the bills of the petitioner in connection with Order of appointment vide No. Cont/9/NEFR/TC/CHNG-AGT/2008 dtd. 17/11/2008 to the petitioner with interest.
(2.)Thereafter, by the judgment and order dtd. 27/4/2021, this high court dismissed the writ petition being WP(C) 111 of 2017 stating as follows:-
25. In these circumstances, this court is of the view that the respondents cannot further proceed for any recovery in terms of the final order dtd. 22/12/2015 [Annexure-8 to the writ petition] as they have failed to produce any evidence in their Money Suit (Counter-claim). For absence of evidence, the said counter-claim has been dismissed. It has been stated even the petitioner has instituted the suit for release of the security deposit with other compensation. Since the entire dispute is, was in the session of the civil court/appellate court, the petitioner ought not have approached this court for directing the respondents to release the security deposit. The release of security deposit including the deducted sum of Rs.32,47,763.00 relating to the Contract No. Cont.9/NEFR/TC/CHNG-AGT/2008 dtd. 17/11/2008 is the subject matter of M.S. 27 of 2010 as found by this court, on scrutiny and hence, the writ petition is not maintainable by the petitioner. This court have studied the judgment dtd. 11/5/2016 wherein it has been observed by the Civil Judge, Senior Division, Court No. 1 that the plaintiff is entitled to recover security deposit, but not the compensation as sought for. For absence of evidence, the counter-claim has been dismissed. If the writ petition is maintainable, but for the decision in the Money Suit 27 of 2010, the present writ petition is bound to be dismissed and accordingly the same is dismissed. However, this is not the confirmation of the judgment dtd. 11/5/2016 delivered in Money Suit 27 of 2010, confirmation can be done by the appellate court only. The said suit was filed as the defendants, the respondents herein, forfeited the security deposit of 54,000,00/- of the plaintiff. Even the petitioner has stated that the counter-claim of the respondents was for recovery of the compensation on account of loss and risk including the demurrage charges. Even the respondents may not recover any further amount from the petitioner as their counterclaim has been dismissed by the court for absence of evidence. However, if any appeal has been filed by the respondents the decision of the Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala shall remain subject to the outcome of such appeal.

(3.)The petitioner after lapse of time approached this court by way of filing a review petition No. 38 of 2021 wherein it had been stated by the petitioner that the petitioner as the plaintiff did not seek any relief for refund of Rs.32,47,763.00, which amount was admittedly deducted as compensation for demurrage suffered by the FCI respondents. But this court was under the impression that such relief is covered by the judgment dtd. 26/2/2021 delivered in RFA No. 14 of 2016. Having perused the record, this court by the order dtd. 16/11/2021 passed in Review petition 38 of 2021 recalled the judgment dtd. 27/4/2021 delivered in WP(C) 111 of 2017.

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