TMI Blog2021 (4) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... aring the earth, if covered materials were found, a fresh programme for witnessing the balance quantity might be done with approval of the competent authority. Such Joint Note, being an admitted document, clearly indicates that the entire materials were not supplied to the petitioner - Also, no reliance can be placed on the internal communications annexed to the supplementary affidavit to the affidavit-in-opposition. What was the quantum of undelivered material to the petition? - HELD THAT:- Since the chart produced in court is contrary to the pleadings in the writ petition, the same cannot be taken as proof, even prima facie, with regard to the quantity of undelivered material. However, since the pleadings of the writ petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Aparna Banerjee ORDER The Court: 1. The petitioner emerged as a successful bidder in an e-auction held on November 30, 2018 by respondent no.2 for sale of 489.659 metric tons (MT) of scrap materials. Accordingly, a Delivery/Sale Release Order was issued in favour of the petitioner (Annexure P-2 at page 22 of the writ petition) which indicates that the total amount paid by the petitioner to the Railways was ₹ 1,27,15,886/- (without GST). The petitioner was permitted, in terms of the tender as well as the Sale Release Order, to cut the scrap material in pieces to facilitate loading. Relying on several e-Way Bills and receipts of payments made to weighbridges, the petitioner claims that altogether 434.659 MT of such scrap m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delivery of due quantity, in the alternative for refund for such undelivered amount, at the earliest. The petitioner has been consistently claiming in several letters that the due materials amounted to 55 MT, which claim has been reiterated in the pleadings of the writ petition itself. The petitioner, thus, prays for a direction upon the respondents to deliver the balance 55MT of scrap materials, in the alternative to refund the sale value together with GST, TCS and interest. 4. However, in a chart filed by learned counsel for the petitioner in court, a copy of which was handed over to learned counsel for the respondents, it was indicated that, as per the receipts issued by the weighbridges, the amount of goods delivered (without tax) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials were found, a fresh programme for witnessing the balance quantity might be done with approval of the competent authority. Such Joint Note, being an admitted document, clearly indicates that the entire materials were not supplied to the petitioner. In the absence of any document being produced by the Railway authorities to controvert the Requisition and Issue Notes produced by the petitioner, there is no option but to accept the petitioner's contention that 55 metric tons were still due from the respondents. 9. The documents annexed to the supplementary affidavit of the respondents, although relying on the Joint Note dated February 9, 2019, which itself indicates that the entire delivery was never made but some of the scrap m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. 12. As such, I find from the materials and pleadings on record that the respondents were liable to deliver 55 MT of scrap material to the petitioner as per the notice inviting tender as well as the Sale Release Order. 13. Multiplying the said quantity of scrap with the sale price per metric ton, as mentioned in the notice inviting tender, that is ₹ 25,666/-, the figure of ₹ 14,11,630/- is arrived at. 14. Since the Joint Note dated February 9, 2019 was the last document indicating that there was a joint effort by the parties to recover the balance scrap, which failed, the respondents are liable to pay interest at the rate of 6 per cent per annum from that date on the said principal dues to the petitioner. As f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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