- (1.) Challenge in this appeal is to the judgment rendered by a Division bench of the Orissa High Court directing the appellant-Corporation to pay to the respondent No. 1 a sum of Rs. 8.5 lakhs within a period of three months from the date of order with default stipulation that in case of non-payment the amount shall carry interest @ 12% p. a. after three months. The writ petition filed by respondent No. 1 was accordingly allowed.
(2.) Background facts as projected by the writ petitioner in a nutshell are as follows: appellant-Corporation for disposal of its unserviceable machineries/equipments and other scrap materials called for successive tenders on three different dates, but because of low offers cancelled them and the respondent no. 1 writ petitioner on all these occasions was a tenderer. On the last occasion the writ petitioner offered price of Rs. 4,950/- per metrictonn dowever, ultimately on negotiation his offer of a lump sum of Rs. 55,00,000/- for the entire lot described in the schedules of the list of articles was accepted. It was stipulated that the entire lifting should be completed by 30. 11.1993. The writ petitioner besides the deposit of Rs. 2,75,000/- being the earnest money was required to deposit Rs. 11,00,000/ - as first instalment being 1/5th of the total price offered by him, which he undisputedly deposited by bank draft dated 27.9.1993. After depositing the amount, according to the writ petitioner when he went to take delivery of the materials he was disappointed to see that many valuable and/or important parts from the truck and jeep etc. were missing. In respect of some other materials, it was found to have been shifted to the Central Store. Further, though item Nos. 16, 17 and 18 of the schedule 9 were to be delivered pursuant to delivery order, they were not available at the store at Kalahandi. So far as item No. 32 which related to a 'trekker' the same was found to have been seized by the Bhawanipatna police in connection with some theft case. Instead of facilitating lifting of the materials, for which the money was paid, the officials of the Corporation asked the writ petitioner to deposit the second instalment of Rs. 11,00,000/- for taking delivery of the second lot of materials and it was given out by them that question of consideration of release of the vehicle (sl. 32) would be considered only after the second instalment amount was deposited. Surprisingly enough without any response to the various letters of the writ petitioner about such deficiencies sent on different dates, the Corporation by letter dated 2.3.1994 directed the writ petitioner to deposit the balance price amounting to Rs. 40,16,000/- within a period of fifteen days. The writ petitioner by his letter dated 27.4.1994 gave details of articles which were found missing and also stated that although he had deposited Rs. 14,84,000/- which included earnest money, it could take delivery of goods only worth Rs. 3,75,000/-, since rest of the materials could not be lifted because of inaction of the functionaries of the Corporation. As no positive response was received, writ petition was filed.
(3.) The appellant-Corporation filed a counter-affidavit taking the stand that writ petitioner's claim was merely a money claim arising out of alleged breach of contract and, therefore, the writ petition was not maintainable, since an alternative remedy in the civil court is available. It was further stated that the writ petitioner had taken delivery of materials worth about rupees 14.9 lakhs. The allegations of missing or removal of important valuable parts from the truck and jeep were specifically denied. It was stated that there was no negligence or laches on the part of the Corporation. On the other hand, it was the inaction and ill motive on the part of the writ petitioner who wanted to lift the valuable items out of schedule 1 to 20 of the list of articles. After considering the rival stands the High Court came to a conclusion that since there were disputed facts those cannot be adjudicated in a writ petition. It was noted by the High Court that after hearing the learned counsel for the parties it was noticed that a lot of statements were made by the writ petitioner which were disputed by the opposite party-Corporation. The main dispute revolved round the value of articles lifted by the writ petitioner. After having concluded that the disputed facts cannot be adjudicated in a writ petition, the High Court came to apparently contradictory conclusions/findings. Some of them are quoted below:"however, we feel that the stipulation under the contract that the materials which admittedly stood at such distant places be lifted within a short period is difficult one to be fulfilled, even the party makes his best effort for the same to lift the same. Availability of stock at such distant places is itself a factor to create bottleneck in many ways to get them lifted from their respective places. Be that as it may, from the allegation and counter allegation of the parties the mercantile cordiality is broken and it will be difficult to joint the thread even if we direct. Therefore, we feel it appropriate to consider the petitioner's prayer for the refund of his amount which will be rather a just relief the petitioner may be entitled to get in equity. ";