V.K.Gupta, J. - (1.) This Appeal is directed against an order dated 2nd November 1998 passed by a learned single Judge of this Court in C.A. No. 1715 of 1996 relating to and arising out of Matter No. 3815 of 1991 on an application filed by the appellant Sarogi Industrial Corporation for obtaining certain directions with regard to the extension of time for performance of a contract obtained by the Appellant from the Respondents. Brief facts loading to the filing of the Appeal may be stated as hereunder :
(2.) Steel Authority of India Limited (SAIL) owns and manages Durgapur Steel Plant (DSP) as one of its Units. Metal Scrap Trade Corporation Ltd. (MSTC) is also a Government concern wholly owned by the Government of India. SAIL appointed MSTC as its agents and in turn MSTC appointed M/s Subhadra Trading Company as its sub-agents to dig, recover, process and load iron scrap from the slag dumps of DSP at Durgapur. Some disputes and differences having occurred in the meanwhile between the said Subhadra Trading Company on the one hand and DSP, MSTC and SAIL on the other. On 29th December 1991 Subhadra Trading Company (STC for short) filed a writ application under Article 226 of the Constitution of India praying for certain reliefs and directions against the aforesaid parties. It is in this writ application filed by STC that on 23 April 1993 an order was passed by a learned single Judge of this Court for sale of the processed material lying at the slag dumps of DSP through Public auction. Accordingly on 6th July, 1993 an order also was passed by the learned single Judge directing that the quantification of the material be made within a fortnight. Special Officers were appointed for this purpose and they were directed to submit report regarding such quantification by 14th July, 1993. Quantification was made by the Special Officers and a report was submitted by them to this effect before the learned single Judge. On 22nd October 1993 a notice was published by the Special Officers in the Statesman to the effect that 28,000 M.T.s of processed iron scrap kept in the specified area in the plant of DSP would be sold by public auction by the Special Officers through M/s. India Auction Mart on 1st November 1993 at Calcutta Hosiery Trade Hall, Free School Street, Calcutta. Accordingly in this auction held on 1st November 1993 the appellant Sarogi Industrial Corporation was declared the highest bidder and the aforesaid 28,000 M.T. of processed iron scrap was sold to it on the basis of the terms and conditions governing the said sale. The appellant deposited a sum of Rs. 28 lakshs by way of security in accordance with the aforesaid terms and conditions of sale. The terms and conditions inter alia provided that the material value along with excise duty and taxes as applicable shall have to be deposited by the purchaser in equal instalments, each covering material value for 2800 M.T. and that first such instalment shall have to be deposited by 5th November 1993 and thereafter, after lifting the material already paid for. It was also provided, inter alia in the terms and conditions that the lifting of the materials by the purchaser was to be completed by 10th December 1993. It is basically this requirement in the terms and conditions of sale which perhaps forms the subject matter of the controversy in the present litigation. It is the case of the appellant that it commenced lifting of the material on 9th November, 1993 by depositing the first instalment and that on 18th November, the 2nd instalment was also paid for by the appellant. Third instalment was paid for by the appellant on 1st December 1993. On 4th December 1993, the appellants state that they wrote a letter to the Special Officers stating that the delivery of the entire remaining quantity of the specified 28000 M.T. was not likely to be completed within the date stipulated in the tems and conditions of sale and requested them accordingly to extend the time for delivery appropriately. It is the case of the appellants that based on the aforesaid payment of three instalments the appellants appear to have lifted 7719.278 M.T.s of the material between 9th November 1993 and 10th December 1993 as against the total payment made of Rs. 3,24,10,568 including the security deposit of Rs. 28 lakhs.
(3.) It appears that at that point of time the writ application filed by STC in which the learned single Judge had made the aforesaid sale order was still pending in the Court and accordingly the appellants appear to have filed an application in the aforesaid pending writ application for directions from the Court for extension of period for lifting of the materials beyond 10th December 1993. Even while the aforesaid application filed by the appellant in the aforesaid writ application of STC was pending, the same neither been disposed of nor any orders having been passed thereupon by the learned single Judge. The appellant filed a separate independent writ application, being Matter No. 4389 of 1993 in this Court for directions upon the Respondents therein to suitably extend the time for lifting of material beyond 10th December 1993. On 22 January 1996 this writ application of the appellants was dismissed by a learned single Judge of this Court (Shyamal Kumar Sen, J.) primarily and mainly on the ground that since serious disputed questions of fact and interpretation of clauses of the terms and conditions of the contract of sale were involved, it was not proper to interfere with the actions complained of by the writ petitioner-appellant and also because the issues involved in the writ application related to the enfocement of a contract. The learned single Judge while dismissing the writ application appeared to be of the view that the remedy of the appellant lay in filing a suit for specific performance. It was perhaps on the basis of such thinking that the learned single Judge granted liberty to the appellant to avail of other remedies. Feeling aggrieved, the appellant filed a Letters Patent Appeal under Clause 15 of the Letters Patent. Even though the Letters Patent Appeal, being Appeal No. 746 of 1996 was dismissed by the Division Bench vide Judgment dated 18th April 1996, the Division Bench was of the view that the writ application filed by the appellant was not maintainable on the ground that it was not open to the appellant to enforce certain orders earlier passed in a petition already pending in this Court and filed under Articls 226 of the Constitution. The following observations of the Division Bench with regard to the non maintainability of the writ application of the appellant are apposite. We quote : "However, after having heard the learned counsels for the parties, and after perusing the deicisions cited by them, we are of the view that the writ petition was not maintainable but not for the respons given by the learned single Judge, but on the grounds that by the filing the writ petition the writ petitioners appellants were seeking to enforce certain order passed in a previous preceeding under Article 226 of the Constitution, which in our view, is not permisible in law. As will appear from the materials on record, the contract in question was given to the appellants in the proceedings arising out of matter No. 3815 of 1991 and if any dispute has risen in that proceeding, the same should not have been questioned by a separate writ petition, since it is now well settled that relief under Article 226 of the Constitution is not available against any judicial order passed in a proceeding under Article 226 of the Constitution of India. The subsequent writ petition filed on behalf of the appellants and out of which this appeal arises, is in our view, not maintainable.";