Sanjay Karol, Arindam Lodh, J. - (1.)These appeals arise out of common judgment rendered by the learned Single Judge in a bunch of writ petitions filed by the writ petitioners, respondents herein, seeking directing to the appellant herein, to forthwith release the security amount so deposited pursuant to various work orders issued in their favour.
(2.)Having heard learned counsel for the parties, we find no reason to interfere with the impugned judgment, more so, in the light of the decision taken by a coordinate Bench of this Court, in one such similar matter being WA 25 of 2016 titled as Food Corporation of India and Ors. v. Sri. Suvajit Paul wherein the court observed as under:
"Heard Mr. C. S. Sinha, the learned counsel for the Appellants-Corporation. Also heard Mr. A.K. Bhowmik, the learned senior counsel assisted by Ms. A. Banik, the learned counsel for the respondent.

These three writ appeals are directed against the judgment dtd. 4/12/2015 passed by the learned Single Judge in WP(C) No.504/2012. The appellants are principally aggrieved by the observation of the learned Single Judge in paragraph-8 of the judgment. While allowing the writ petition, it was observed therein that if the respondents had suffered for the failure and negligence on the part of the writ petitioner, they might recover by following the appropriate procedure as laid down in law as there was no clause for recovering the demurrage in the agreement under which the writ petitioner was operating the transportation of food grains etc.

Attacking this submission, the learned counsel for the appellants submits that this final order of the learned Single Judge has no basis inasmuch as Clause X(a) and Clause XII(a) of the agreement signed between the appellant Corporation and the writ petitioner stipulate deduction for demurrage/wharfages from the bills of the writ petitioner. According to the learned counsel for the appellant, the term "demurrage" comes within the sweep of the term "damages suffered or incurred by the corporation" and, as such, the action taken by the appellants for recovering the demurrage from the writ petitioner does not suffer from any infirmity calling for the interference of the learned Single Judge.

Opposing the submission of the learned counsel for the appellant-corporation, the learned senior counsel for the writ petitioner submits that in the past, in the agreement executed between the Corporation and the Contractor, the term "demurrage" used to be clearly incorporated therein and when the same term is expressly excluded in the new agreement form, such as the one herein, such term cannot be read into the agreement executed between the Corporation and the writ petitioner by a process of interpretation. The learned Senior Counsel, therefore, contends that there is absolutely no merit in this appeal, which is liable to be dismissed. Before proceeding further, we refer to Clause XII of the previous agreement by which transportation of food grains were contracted by the appellant-corporation with the contractor, and the same is reproduced herein below:

"XII LIABILITY OF CONTRACTORS FOR LOSSES, ETC., SUFFERED BY CORPORATION.

(a) The contractors shall be liable for all cost, damages, demurrages wharfages, for failure of wagons, registrations fees, charges and expenses suffered or incurred by the Corporation due to the contractors negligence and unworkmanlike performances of any services under this contract, or breach of any terms thereof or their failure to carry out the work with a view to avoid incurrence of demurrages, etc., and for all damages or losses occasioned to the Corporation or in particulars to any property or plant belonging to the Corporation due to any act whether negligence or otherwise of the Contractors themselves or other employees. The decision of the Sr. Regional Manager regarding such failure of the contractors and their liability for the losses, etc., suffered by Corporation shall be final and binding on the contractors."

In the new Clauses X and XII of the agreement which has been executed by the writ petitioner and the appellant Corporation, the term "demurrage" is plainly not there. The recovery of losses suffered by the Corporation for which deduction can be made is in respect of any damages, losses, charges, costs or expenses suffered or incurred by them, or any amount payable by the Contractor as Liquidated Damages as provided for in Clause XII above. Clause X of the agreement does not also speak of demurrage and is again confined to costs, damages, registration fees, charges and expenses suffered or incurred by the Corporation due to the Contractor's negligence and unworkmanlike performance of any services under this Contract, or breach of any terms of the Contract, or failure to carry out the work under the Contract, and for all damages or losses occasioned to the Corporation, or in particular to any property or plant belonging to the Corporation, due to any act, whether negligent or otherwise, of the Contractor or his employees.

In our opinion, when the new agreement executed by the appellant with the writ petitioner has clearly excluded the expression "demurrage" either in Clause XII (a) or Clause X (a) thereof, we do not see how this term can be read into it by a process of interpretation. In other words, this court cannot read into or imply the term or expression which has been deliberately obliterated in the said agreement. In the view that we have taken, we do not think that the learned Single Judge has committed any infirmity in making the impugned observation made in para 8 of the judgment.

For the reasons stated above, there is no merit in these appeals, which are hereby dismissed. The parties are, however, directed to bear their respective costs."

(3.)It appears that the writ appellant has paid demurrage to Railways, allegedly on account of various acts of misfeasance/malfeasance attributed to the writ petitioner. But then, as already stands discussed and held by this Court in Food Corporation of India and Ors. (supra) the writ appellant, at some point in time had amended the clause contained in the agreement, by virtue of which the work orders stood supplied, specifically excluding the expression "demurrage" therefrom. No deduction on this count was agreed upon by the parties.
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