TMI Blog2010 (1) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ently refund of a sum of Rs.19,17,760/- alongwith interest and Rs.2,20,814/- along with interest on account of penalty and ground rent charges till 31st March, 2006 and another amount of Rs.2,70,000/- paid by petitioner to the transporters whose trucks are lying at the bonded area since 3rd April, 2006. 2. Brief facts to comprehend the controversies are that the petitioner is in the business of trading in metal scrap in the name of M/s. Adil Tin Scrap Store, 462, Shahzada Bagh, Inderlok, Delhi-110035. On 30.5.2005, respondent No.2 had published the auction notice dated 15.6.2005 (1/2005-2006) in the leading newspapers proposing to dispose of different materials including HMS contained in 30 containers by public auction on "As is where is" basis. In the auction notice neither the reserve price nor weight nor quantity was mentioned. 3. Pursuant to the auction notice petitioner paid the entry fee of Rs.250/- and also deposited a refundable security of Rs.20,000/- for participating in the auction. The dates of inspection of material at ICD, Tughlakabad were fixed on 10th, 13th and 14th June, 2005. 4. The petitioner contended that during the course of auction while inviting bids ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission to stuff back the goods into the containers to avoid the truck retention charges and other incidental cost until the settlement of the dispute which request was summarily rejected and the petitioner was directed to take the delivery of the goods. 7. Contention of the petitioner is that he has reasons to believe that the approximate weight of scrap (HMS) in five containers at the time of arrival at the inland container depot was approximately 19 metric tones which was reflected in the respective bills of lading and also the Import General Manifest. The petitioner does not have these documents and so he approached the custom authorities to know about the valuation of the goods put up for auction under RTI Act vide application dated 20.4.2006. However, the information was not provided as the date of auction was wrongly mentioned as 30.5.2005. Even custom authorities refused to divulge any information and by letter dated 6.5.2006 respondents again called the petitioner to take delivery of the goods and by another letter dated 8.5.2006 the respondents again demanded the petitioner to take the goods which were auctioned on "as is where is" basis. The petitioner thereafter serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiver of late payment and ground rent charges as the market of HMS was decreasing day by day. Considering the request of the petitioner the respondent waived 65% against due TSC and allowed full waiver of late payment of 2% monthly surcharge. The respondent No.2 was categorical that for none of the items, the reserve price was mentioned nor the weight nor the quantities were mentioned, as the goods were to be auctioned on "As is where is basis". The petitioner after inspecting the goods on 14.6.2005 had also circulated that he had read and understood the terms and conditions of sale through auction which was held as per terms and conditions which were read and understood by the petitioner. Petitioner had paid full balance payment of Rs.2,47,160/- inclusive of sales tax against lot No.59 without payment of applicable late payment surcharge and the ground rent and no demand was made against lot no.39. An amount of Rs.7,74,472/- was deposited by the petitioner on 17.2.2006 towards lot no.39 and the balance amount was paid on 18.2.2006 and an amount of Rs.2,20,814/- paid towards ground rent and surcharge. 10. The allegation of the petitioner that the weight of the goods was orally d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab v. Dial Chand Gian Chand and Company. AIR 1983 SC 743; State of Haryana and Ors. v. Lal Chand and Ors. AIR 1984 SC 1326; Assistant Excise Commissioner and Ors. v. Issac Peter and Ors. (1994) 4 SCC 104; Tata Cellular v. Union of India. (1994) 6 SCC 651; Consolidated Coffee Ltd. v. Coffee Board, Bangalore. AIR 1980 SC 1468; Hari Shanker Vs Dy.EE T Commissioner, AIR 1975 SC 1121, T.N Electricity Board Vs N Raju Reddiar, AIR 1966 SC 2025;State of Haryana Vs Lal Chand, AIR 1984 SC 1326; Steel Authority of India Ltd. Vs National Union Water Front Workers, (2001) 7 SCC 63 and Asst. Excise Commissioner Vs Issac Peter, (1994) 4 SCC 125 in support of pleas and contentions on behalf of the respondent. 13. The learned counsel for the parties were heard at length and writ petition, reply and the documents and the judgments relied on by the parties have been perused. It may not be necessary to refer to all the precedents relied on by the parties as the ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases as was held by the Supreme Court in Rafiq VS State, 1980 SCC (Crl.) 946. The ratio of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a Civil suit. Relying on Gunwant Kaur's Case, (1969) 3 SCC 769 it was held that if the facts required, oral evidence can be taken and consequently in an appropriate case the writ Court will have jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. However in ABL International Ltd (supra) the point involved was the interpretation of contract without any external aid. In fact no detailed disputed questions of facts were involved. 15. In State of Bihar Vs. Jain Plastic and Chemicals Ltd, (2002) 1 SCC 216, the Apex Court had held in para 7 as under: 7. In our view, it is apparent that the order passed by the High Court is, on the face of it, illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State." 17. Relying on (2005) 12 SCC 725, Orissa Agro Industries Corporation Ltd Vs. Bharat Industries and Others the learned counsel for the respondents, Mr. Joshi challenged the efficacy of a writ jurisdiction, as the writ petition involves disputed questions of fact. In the said case the dispute was about the valuation of articles left by the petitioner and it was held that the valuation of the goods left will involve complicated question of fact and the material requires thorough proof on factual aspects and in the circumstances the High Court ought not to have entertained the writ petition. The Apex Court was of the view that whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of the dispute and if the dispute cannot be resolved without going into the factual controversy the High Court should not entertain the writ petition. The question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) are disposed of by the Customs Department through the disposal units of the department and it is their responsibility. However, the goods in category (b) are disposed of by the custodian who has to make a list of the imported goods which lay uncleared/unclaimed for more than 45 days and then has to send the list of such goods to the customs on monthly basis. Relying on the circulars of the customs it was contended that the list which is sent of the uncleared imported goods should contain complete particulars such as airways bill number, description of goods, weight, name of the consignee/consignor etc and the valuation of the goods should be done by a committee consisting of a representative of the custodian, Government approved valuers and a representative of the customs for working out the reserve prices of the consignment to be auctioned. 20. The Assistant Commissioner on the receipt of the list of such goods which have not been cleared for more than 45 days has to scrutinize the list and withdraw certain categories of goods for the proposes of sales. Reliance has been placed by the petitioner on the board's circular No.7/2004-CUS dated 28.1.2004 which prescribes the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, it has been emphatically contended on behalf of the learned counsel for the petitioner that the respondent No.2 could not be unaware of the quantify of goods as indicated in IGM nor respondent No.2 could allow the goods to be pilfered from its custody and before working out the reserve price the weight ought to have been taken into consideration by respondent No.2. 23. The plea of the respondent that the weight was not disclosed and was not required to be disclosed is countered by the petitioner by relying on some other tender notice documents where the respondents did disclose the weight of the material to be auctioned at the time of the tender notice itself. One of the plea for adjudication in the circumstances will be that if the respondent had disclosed the weight of the goods in other tender notices, were they liable to disclose even in this case of the petitioner also where tenders were filed by the petitioner. What would be the ramification of not disclosing the weight in the facts and circumstances would also require adjudication which will depend on various disputed question of facts. The petitioner has also allegedly raised a presumption that in case the weight was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IGM, then why the auction be not quashed, are such disputes which cannot be adjudicated without recording cogent evidence in respect of pleas and counter pleas. Though there is no presumption in favor of the petitioner and against the respondent as has been drawn by the petitioner, however even such presumption as are sought to be drawn by the petitioner, cannot be conclusive. The presumption as has been sought to be drawn by the petitioner shall be rebuttable and the respondent shall be entitled to rebut the same. On the basis of the probability that in the circumstances the version propounded by the petitioner should be believed that the weight was disclosed and later on the weight was found to be less, it will not be justifiable and appropriate to cancel the contract or to award damages to the petitioner against the respondent and absolve petitioner completely of his liability under the agreement, especially in view of the plea taken by the respondent that in the letter of 7th April, 2006 it was stated that the goods are half in containers and half loaded in truck but the quantity of goods found in the containers was not given and it was only later on the plea was raised that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table and it is not the mere interpretation of a policy or circulars of customs or of contract without any external aid. 27. The petitioner is not only seeking interpretation of the contract but is also invoking variation of the terms of the contract which is resisted by the respondent invoking Sections 91 and 92 of the Evidence Act. The respondent has relied on Tamil Nadu Electricity Board v. N. Raju Reddiar, AIR 1996 SC 2025 holding that once a contract is reduced to writing, by operation of Section 91 of the Evidence Act, it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where a written instrument appears to contain the whole terms of the contract then the parties to the contract are not entitled to lead oral evidence to ascertain the terms of the contract. 28. It is now well established that to qualify for an order or decree which concludes one or another issue, the averments and the pleas should be unconditional and unambiguous. Such admissions cannot be and should not be allowed to be inferential admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impeaching contractual obligations. 22 The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. 31. In AIR 1983 SC 743, State of Punjab v. Dayal Gian Chander in para 9 the Supreme Court had held as under:- 9. The High Court also did not appreciate that writ petition was filed by a licensee who participated in the auction with wide eyes open and on untenable plea wanted to wriggle out of the bargain. In this connection, one can advantageously refer to decision of the Constitution Bench of this Court in Har Shankar Ors. etc. v. The Dy. Excise Taxation Commissioner Ors.: [1975] 3 SCR 254 at p. 266(AIR 1975 SC 1121 at p. 1126) wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. The High Court could not have converted writ petition into a suit for recovery of damages and that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.(para 10 page 747) 32. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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