TMI Blog2007 (10) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the carrying charges should be paid to the second respondent, wherefor an appropriate receipt would be given. Such payment shall be without prejudice to the rights of the parties before the Arbitrator and shall be subject to any other or further order or direction that may be issued by the learned Arbitration in his Award. - Appeal (civil) 4877 of 2007 - - - Dated:- 12-10-2007 - S.B. Sinha H.S. Bedi , JJ. JUDGMENT: S.B. SINHA, J 1. Leave granted. 2. These appeals are directed against the judgment and order dated 15.12.2006 passed by a Division Bench of the Calcutta High Court in APO No. 291 of 2006, A.P.O.T. No. 401 to 406 of 2006 in WP Nos. 962, 966, 967, 969, 970, 971 972 of 2004 and A.P.O.T. No. 399 of 2006 in W.P. No. 1566 of 2004 and A.P.O.T. No. 400 of 2006 in W.P. No. 973 of 2004 respectively. Factual matrix being in narrow compass, we will notice the relevant facts. 3. First Appellant is owner of a jute mill. In exercise of power conferred upon it under Section 3 of the Essential Commodities Act, Government of India made an Order in the year 2000 known as Jute and Jute Textile Control Order, 2000. By reason o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) A writ of and / or order and / or direction in the nature of mandamus be issued commanding the respondents not to force the petitioners to compulsorily purchase raw jute from the respondent No. 1 for effecting supply of B-Twill gunny bags of 665 gms under the various production control orders. (c) A writ of and/or order and / or direction in the nature of mandamus be issued commanding the respondents to allocate and supply consignment of raw jute as per productivity norms of Jute Manufacturers Development Council for manufacture of B-Twill Jute bags of 665 gms. (d) A writ of and/or order and/or direction in the natureof mandamus be issued commanding the respondent no. 2 to desist from forcing the petitioners to supply B-Twill gunny bags at the lower of the price prevailing for the period/month as mentioned in the individual Production Control Orders and that prevailing for the period subsequent thereto in the event your petitioners are otherwise unable to supply B-Twill gunny bags within the period as mentioned in the individual purchase order. 8. Despite, making the aforementioned prayers, the appellant however, made an offer befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid clause. There is no dispute that within the same period delivery was not taken. Subsequently, by virtue of the interim order, they got delivery and also prayed for a fresh allotment on opening Letters of Credit. It is preposterous to suggest that the purchasers who are under obligation in terms of agreement to lift the goods within a specified period and for not taking delivery they are required to pay carrying cost and delayed surcharges, will not be required to pay such penalty unless defect is found in the Letters of Credit even though they lifted the goods beyond the stipulated time. If we accept the aforesaid proposition, the purchasers can avoid that clause by not taking delivery of goods or without opening any Letters of credit in favour of the appellant by contending that there was no defect in the Letters of Credit. We, thus, find that the learned Single judge erred in law in holding that the writ petitioners were under no obligation to pay the carrying cost and other charges mentioned in clause 5.0 of the agreement even if they do not lift the goods within the time stipulated therein or if they do not furnish any letters of Credit in favour of the appellant. We, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount through arbitration in terms of the agreement. The arbitration will adjust the amount that will be handed over to the appellant by the learned advocate for the writ petitioners by virtue of this order while assessing the 11. Mr. S. Bagaria, learned senior counsel appearing on behalf of the appellant submitted that although there may not be any dispute with the legal proposition that a suitor cannot take advantage of interim order passed in his favour, but it is also trite that the interim order must be given effect to in terms of the contractual obligations of the parties and, if in terms thereof, the appellant was not liable to pay the carrying cost, clause 5.0 of the sale agreement being not applicable, they cannot be fastened with the said liability. Strong reliance in this behalf has been placed on Central Bank of India Ltd., Amritsar Vs. The Hartford Fire Insurance Co. Ltd. [AIR 1965 SC 1288]. 12. Mr. Bikash Bhattacharyya, learned senior counsel appearing on behalf of the first respondent, on the other hand, would submit that the appellant had filed a writ petition on the premise that the statutory order is not applicable. Such a prayer having b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % for the remaining 8 months, November to June. The buyers shall clearly indicate the extent of the claims (in terms of percentage) on quality and condition. No joint inspection shall be arranged and no claim shall be entertained by the Corporation unless the buyers clearly indicate the extent of claim in the manner mentioned herein above and within the time specified in the bye-laws and rules of the EIL HE. In case of EX-GODOWN DELIVERY, the weight shall be determined at the point of delivery ex-godown based on weight recorded on lorry challan or the certificate of weighment signed by the authorized representative of the buyers and the Corporation. For this purpose the certificate to be given may be in the Form of Annexure-III. Based on the settlement of claim for quality, condition and weight if the buyers are found to be entitled to recover any amount from the Corporation, payment should be made within 15 days from the date of receipt of the debit note. 9.0 Arbitration : All disputes or differences whatsoever arising between the parties put of/or relating to the construction, meaning and operation or effect of this contract or the breach thereof shall be settled by arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench overturned the said decision. Construction of the agreement therefor fell for consideration of the High Court. Division Bench, as noticed hereinbefore, itself opined that the arbitration clause should be taken recourse to for the purpose of computation of the quantum of the carrying cost. The question of payment of carrying cost by the appellant in favour of the respondent would arise provided the same is payable. Payability of such carrying cost would, thus, depend upon construction of clause 2.0 read with clause 5.0 of the sale contract. 17. Respondent, no doubt, could have taken recourse to clause 16.0 of the agreement in terms whereof it could realize any amount which the Corporation might have to pay. Disputed fact was required to be gone into before a definite opinion could be arrived at as to whether in the facts and circumstances, the obligation to pay the carrying cost was applicable. 18. The power of judicial review vested in the superior courts undoubtedly has wide amplitude but the same should not be exercised when there exists an arbitration clause. The Division Bench of the High Court took recourse to the arbitration agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application (See Titagarh Paper Mills Ltd. v. Orissa SEB and Bisra Stone Lime Co. Ltd. v. Orissa SEB) 13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief. 21. Relying on some of the earlier decisions of this Court, this Court held: It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of the domestic forum created therefore, the writ petition may be held to be maintainable; but indisputably therefore such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service and E. Venkatakrishnathat the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act, 1963; but while entertaining a writ petition even in such a case, the court may not lose sight of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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