Ajay Kumar Tripathi, J. - (1.)PETITIONER is a Public Limited Company and is seeking quashing of certificate proceeding being Misc. Case No. 100 of 1997 -98 which is pending before the Certificate Officer, Munger, respondent no 3. The notice issued to the petitioner is contained in Annexure -1 and the demand as per the notice is for Rs. 3,69,600/ -. The background to the present dispute is that the Deputy Development Commissioner, Munger placed an order for supply of 2315 Metric tons of non -levy cement in terms of the letter no. 2692 dated 2.11.1989 as contained in Annexure -2 to the writ application. The cement in question was to be supplied through various local dealers of the Company and in lieu of the said supply order a sum of Rs. 28,68,285/ - by way of demand draft at the rate of Rs. 2315 Metric tons was made over to the company. Based on the communication contained in Annexure 2 steps were taken by the Company to supply cement and 1470 Metric tons of cement came to be supplied by 5.4.1999. Balance of the cement amount could not be supplied for certain reasons indicated in the writ application which included the fact that there was revision in the price of the cement due to the Union Budget which pushed up the cost of cement. Petitioner thereafter communicated with the respondents requesting price escalation for supply of balance 845 metric tons of cement and the same was accepted by the respondents as would be evident from Annexure -5. The balance 845 metric tons of cement could not be supplied in toto, therefore a sum of Rs. 8,80,000/ - was refunded by the Company to the respondents in the year, 1992. The matter came to rest thereafter till the petitioner suddenly received a notice dated 19.8.1997 contained in Annexure -1 from the Certificate Officer for a sum of Rs. 3,69,600/ -. This amount was supposed to be interest on the delayed refund of the money which the respondents were claiming from the petitioner. Petitioner was, therefore advised to challenge this notice since it is dubbed as patently illegal and beyond the ambit of Public Demand Act.
(2.)LEARNED counsel for the petitioner submits that the notice or the proceeding in question is not maintainable for claim of interest for the reason that not every demand can be called a Public Demand and its recovery can be made under the Bihar and Orissa Public Demands Recovery Act. A perusal of Annexure -2 (the subject matter of dispute) would show that it is an order to supply and no agreement of the kind was entered between the parties stating that non -supply of cement would be treated as a public demand in case of default. It was a clear case of offer and acceptance and if there was any breach for whatever reason the remedy lay in the common law and not under the special law of Public Demand. The second contention is that even according to the notice the claim is not of any principal amount because the Company had already refunded the balance money due to non -supply of the rest of the cement. The claim is with regard to interest which the respondents have calculated in their own way without any details as to how a sum of Rs. 3,69,600/ - has been reached. The third contention is that the order placed on the petitioner relates to November, 1989 but the certificate proceeding has been brought against the petitioner in the year, 1997 and therefore, a kind limitation had come into play. A counter affidavit has been filed on behalf of the respondent -State where the basic facts are not disputed but their stand is that since the petitioner had failed to supply the quantity of cement within the stipulated time and the balance amount which was refunded was after a passages of time of more than two years, the development work suffered and the interest of the Government therefore got jeopardized. In was in this background that a decision was taken to file the certificate case against the petitioner for the loss of interest due to delay in refunding the money due to non -supply of cement of the balance amount. On the question of legality of the proceeding it has been urged that the claim of interest against the petitioner would be a public demand after an amendment has been brought about and incorporated in Schedule -1 of the Public Demands Act in the year, 1993. Reliance has been placed on the new amendment which is Clause 8 -A as under: - -
8 -A. Any outstanding loans and advances payable to State Government or to a Department or official of the State Government by any body whatsoever.

(3.)ANOTHER objection which has been taken is that the petitioner has not exhausted the statutory remedy first by filing the objection before the Certificate Officer but has rushed to the Court against the notice itself.