Shelat, J. - (1.) This appeal by special leave is directed against the judgment and order of the High Court at Calcutta which upheld the judgment and order of the Single Judge of that High Court dismissing the writ petition filed by the appellant company.
(2.) The appellant company was at all material times carrying on the business of manufacturing barrels and for that purpose required steel sheets. By reason of the Essential Commodities Act, 1955, the Iron and Steel (Control) Order 1956 and divers orders passed by the Iron and Steel Controller the appellant company could get supplies of steel sheets only by obtaining release orders from the Controller on stockists and importers. The Controller would direct under such a release order an importer or a stockist to supply steel sheets to the appellant company at rates and on terms and conditions specified by him therein. By three such release orders, of October 28 and 29, 1960 the Controller directed the 6th respondent M/s. Aminchand Pyarelal and Co., to supply to the appellant company 3406.386 metric tons of steel sheets. Prior to these three orders certain other release orders had been issued on the 6th respondent and the appellant company had paid large amounts in respect of steel sheets supplied thereunder on the basis of pro forma invoices issued by the 6th respondent and their sister concerns. An amount of Rs. 7 lacs and odd said to be excess payment was claimed by the appellant company from the 6th respondent to recover which the appellant company had filed suits in August 1961 and January 1963 in the High Courts at Bombay and Calcutta. In pursuance of the said three release orders the 6th respondent sent its pro forma invoice but only for 2168 tons and odd stating that it had already delivered between November 1961 and February 1962, 1238 tons and odd in part satisfaction of the said release orders. In these invoices the 6th respondent claimed Rs. 975.55 per metric ton which was a higher rate than the one fixed by the Controller. The appellant company thereupon tendered the price at the rate fixed by the Controller also deducting therefrom the said excess of Rs. 7 lacs and odd. The 6th respondent declined to accept the same whereupon the appellant company apprised the Controller about the difference between them. By his order dated 1/2 May 1962 the Controller directed that the 6th respondent should charge the appellant company at the rate of Rs. 921 per metric ton and deduct the excess charges paid to it earlier. He also directed the 6th respondent to send to the appellant company revised pro forma invoice within three days. The order also stated that the appellant company should make arrangement for payment within three days of the receipt of the revised pro forma invoice and that if the transaction was not completed by May 12, 1962 due to any fault on the part of the appellant company he would consider the disposal of the said sheets in favour of some other party. The Controller sent a copy of this letter to the appellant company and in the note appended thereto informed the company that it should lift the materials before May 12, 1962. The 6th respondent thereafter sent its revised invoice at the rate directed by the Controller but without adjusting the said excess and insisting that 1238 tons and odd were already delivered and that only 2168 tons remained to be delivered. In the said invoice it also included the price of 1238 tons at Rs. 921 per metric ton. The appellant company tendered its Banker's slip at the rate of Rs. 921 per ton after deducting therefrom the said amount of Rs. 7 lacs and odd as excess payable to it by the 6th respondent. The 6th respondent refused to accept the said slip and instead sent on May 7, 1962 another invoice without adjusting the said excess thus, according to the appellant company, making it impossible for it to lift the steel sheets. The appellant company filed another suit in the High Court at Bombay inter alia for a mandatory injunction directing the 6th respondent to deliver the entire quantity of 3406 tons and odd at Rs. 921 after deducting from the price therefor the said excess of Rs. 7 lacs.
(3.) By his order dated 24/26 May 1962 addressed to the 6th respondent the Controller allotted 2168 and odd tons of the said steel sheets in favour of the 7th respondent cancelling the allotment in favour of the appellant company. Appended to the said order was a note of the Controller addressed to the appellant company which ran as follows: "Due to their non-lifting of Drum sheet 18G for 2168.25 M/T against .......(the said three release orders), they are advised to note that the same quantity of allotment against the laid R/Os has been treated as cancelled, matter is treated as closed finally." Against this order of cancellation the appellant company filed a writ petition in the High Court at Calcutta. It came up for hearing on September 14, 1962 before Banerjee T. when the parties took a consent order. The said consent order provided inter and that the Controller shall himself "hear" the parties and ascertain for himself which of them was at fault in making the said order of 1/2 May 1962 ineffective. It also provided that if the Controller were to find that the appellant company was not at fault but that the order could not be complied with by it because of any unreasonable stand taken by the 6th respondent he should reconsider his said order of cancellation of allotment. On the other hand if he were to find that the appellant company was at fault he need not change the said cancellation order.;