RAJESH SHANKAR,J. - (1.) The present writ petition has been filed for quashing the communication dated 25.03.2017 and 31.03.2017 whereby the recovery of Rs. 1,90,35,675/- against the petitioner on account of Risk Purchase Differential Action relating to Purchase Order No. P38.0/P 126/91042 dated 19.02.2007 has been made. It has further been prayed for directing the respondents to forthwith release all the amount payable to the petitioner under the contracts entered between them.
(2.) The factual matrix of the case as stated in the writ petition is that pursuant to a Global Notice Inviting Tender dated 31.08.2015 issued by the respondent no. 2, the petitioner participated in the tender and was declared a successful bidder and consequently a Purchase Order dated 19.03.2016 bearing Ref. No. SAIL-SRU/HO/16-17/900-GR 96%/1110000092 for supply of 900 tons of 96% Natural Flaky Graphite for SRU, BRP was issued by the respondent no. 2 to the petitioner for supply of the concerned materials at the site location of SAIL Refractory Unit (Bhilai) (respondent no. 3). The petitioner supplied the complete quantity of 900 Tons of Materials to respondent no. 3 with the last supply made on or around 24.02.2017. The respondents paid the due amount to the petitioner from time to time as per the supply and the invoices raised by it. The respondents issued a Repeat Order dated 03.02.2017 bearing Ref. No. SAIL-SRU/HO/16-17/FG96/110000169 to the petitioner for supply of 105 MT of Graphite 96% to SAIL Refractory Unit, Ranchi Road, RRP (respondent no. 4). Since the petitioner had not initially submitted the Bank Guarantee for an amount of Rs. 22,67,181/- as security deposit in terms with the Purchase Order dated 19.03.2016, the bill of equal amount was withheld as security deposit. Subsequently, the petitioner submitted its Bank Guarantee of Rs. 2267181/- and prayed for release of its bill which was withheld in lieu of the security deposit. The respondent no. 3 intimated the petitioner vide email dated 25.03.2017 that as per the direction of the respondent no. 2, Rs. 1,90,35,675/- is recoverable from it and therefore the amount withheld against security deposit from its running bill will be released only after clearance from the respondent no. 2. The petitioner raised objection with regard to withholding of its running bill as security deposit and also for recovery of alleged dues. The purchase account department of the respondent no. 1 vide e-mail dated 31.03.2017 informed the petitioner that the recovery has been contemplated as per Risk Purchase Differential Action against the petitioner relating to Purchase Order No. P38.0/P126/91042 dated 19.02.2007.
(3.) Mr. M.S. Mittal, learned Senior Counsel appearing on behalf of the petitioner submits that the order of recovery has been passed without any notice to the petitioner and as such it vitiates due to violation of the principles of natural justice. It is further submitted that the Purchase Order against which an amount of Rs. 1,90,35,675/- has been demanded relates to the Purchase Order No. P38.0/P126/91042 dated 19.02.2007. Under 2007 Purchase Order, the petitioner was to supply 225 MT of Ferro Chrome Low Carbon to the respondents. As per the terms and condition of the Purchase Order, the inspection was to be carried out by the respondents before delivery. The respondents inspected 100 MT and out of which 90 MT was approved and the same was supplied. However, the rest material was not inspected by the respondents in spite of the inspection request of the petitioner. Thereafter, the respondents issued a letter dated 08.02.2008 under the 2007 Risk Purchase Order alleging that the respondents will purchase the balance materials from the alternative sources. The petitioner filed Misc. Case No. 1732 of 2008 before the City Civil Court, Calcutta in which stay was granted during the pendency of the said case. It is further submitted that though the arbitration clause exists in the agreement, yet it does not fetter the plenary power of this Court in writ jurisdiction. The learned Senior Counsel put reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Gangotri Enterprises Limited v. Union of India and Others reported in, (2016) 11 SCC 720 and submits that if a party commits breach of contract, the other party has the remedy to file a suit for damages, it however has no right to appropriate the amount of the party from other pending bills.;