Allowed

D.G. Raj Commercial Pvt. Ltd. v. the Union of India and 10 Ors.

Gauhati HC27 Apr 2022I.A.(Civil)/1222/2022

Case brief

AI extract

What is this about?

This order allowed an interim application seeking release of freight consignments. The Court held that the petitioner's security deposit remained intact with the Railways and directed the Railways to release four wagon portions of PCET immediately.

What did the court decide?

Direction to respondent Railways to release and allow unloading of consignment of 4 VPHs of PCET immediately.

D.G. Raj Commercial Pvt. Ltd. Vs the Union… — Contract and Commercial Disputes | Gauhati HC (2022)

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GAHC010073202022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil)/1222/2022 in

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WP(C)/2630/2022

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D.G. RAJ COMMERCIAL PVT. LTD. HAVING IT REGISTERED OFFICE AT- 8226 FIRST FLOOR STREET NO. 5 MULTANI DHANDA PAHAR GANJ DELHI- 110055 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE SHRI NITESH KUMAR AGED ABOUT 35 YEARS S/O- SHRI CHANDRESWAR PANDEY R/O HOUSE NO. 7 BYE LANE NO. 2 HATIGARH CHARIALI GUWAHATI DIST. KAMRUP(METROPOLITAN) ASSAM PIN- 781024.

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VERSUS

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THE UNION OF INDIA AND 10 ORS. REP. BY THE GENERAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM PIN- 781011.

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2:THE RAILWAY BOARD REP. BY THE SECRETARY MINISTRY OF RAILWAYS GOVERNMENT OF INDIA RAIL BHAWAN NEW DELHI-110001. 3:THE DIRECTOR OF FREIGHT MARKETING RAILWAY BOARD GOVERNMENT OF INDIA RAIL BHAWAN NEW DELHI- 110001. 4:THE GENERAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM PIN- 781011. 5:THE GENERAL MANAGER NORTH WESTERN RAILWAY NEAR JAWAHAR CIRCLE JAIPUR RAJASTHAN PIN- 302017. 6:THE PRINCIPAL CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM PIN- 781011. 7:THE CHIEF COMMERCIAL MANAGER FM NORTH WESTERN RAILWAY NEAR JAWAHAR CIRCLE JAIPUR RAJASTHAN PIN- 302017. 8:THE SENIOR DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY LUMDING DIVISION DISTRICT NAGAON ASSAM PIN- 782447. 9:THE SENIOR DIVISIONAL COMMERCIAL MANAGER NORTH WESTERN RAILWAY JAIPUR DIVISION POWER HOUSE ROAD JAIPUR RAJASTHAN

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PIN- 302001. 10:THE ASSISTANT COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY LUMDING DIVISION DISTRICT- NAGAON ASSAM PIN- 782447. 11:THE CHIEF PARCEL SUPERVISOR NORTHEAST FRONTIER RAILWAY NEW GUWAHATI B.G. PARCEL ASSAM PIN- 782021. -----------Advocate for : MR. P D NAIR Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 10 ORS.

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BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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27-04-2022

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Heard Mr. D Das, learned Senior counsel assisted by Mr. G Alom, learned counsel for the applicant/writ petitioner and Mr. B Chakraborty, learned CGC for the opposite parties/respondent Nos. 1 to 11.

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The applicant filed the connected WP(C) No. 2630/22 which is presently pending for adjudication.

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While issuing notice in the said WP(C) No. 2630/2022, this Court by order dated 08.04.2022 in the interim observed as follows-

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“In the event of any such amount of freight+DC+GST amounting to Rs. 27,45,927/- raised by the respondent Railways in terms of the communication Nos. C/442/PCET/AWR-NGC as well as CS/P/NGC/LIEN/PCET/AWR-NGC/2022 both dated 05.04.2022 from the security deposit made by the petitioner which is lying with the respondent Railways and in the event, if the said security deposit presently lying with the respondent Railways is not enough to recover the amount of Rs. 27,45,927/-, in that case in the event of furnishing of Bank Guarantee by the petitioner to the said amount, the respondent authorities in the Railways shall release and allow unloading of the consignments of 4 VPH of PCET of the petitioner that reached New Guwahati on 04.04.2022 from Alwar.

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Pendency of this writ petition shall not be a bar for the respondents in the Railway to dispose of the representation of the petitioner dated 07.04.2022 submitted before the Principal Chief Commercial Manager, NF Railway, Maligaon.”

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The authorities in the Chief Parcel Traffic Manager of the Eastern Railways on 30.03.2022 wrote to its counterpart i.e. CPTM, Eastern Central Railways and CPTM, NF Railways not to send further rake of PCET until and unless the feasibility, i.e. No Objection Certificate is issued from the said Eastern Railways.

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The petitioner brought to the notice of the Court that inspite of that, the authorities in the NF Railways on 02.04.2022 placed a rake of PCET and thereafter informed the petitioner about the same. On receipt of said information the petitioner on 02.04.2022 itself submitted an application before the authorities in the NF Railways requesting the said authority to withdraw the placement of the PCET rake for loading on that day stating that once it gets NOC from the Eastern Railways it will load the pending rake on a date that is mutually agreed by both the parties. However, the same was not considered by the NF Railways.

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The petitioner of WP(C) No. 2630/2022 as applicant in this application placed before the Court that the Senior Divisional Commercial Manager of the North Western Railways, Jaipur on 08.04.2022 made a communication to the Senior Divisional Commercial Manager of the N F Railways, Lumding stating as follows-

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“Here, it is pertinent to mention that when message for not sending any further rake was clearly given by ER to NFR on 30.03.2022 then placement of PCET seems arbitrary on your part. It is understood that in case of non issuance of NOC by ER, placement of rake for loading at NGC not seems justified as without NOC the movement of said rake cold not take place. Further detention of party’s consignment on demand of debit is also not justified in the light of communications made between ER, NWR and your office. The delivery may be made after obtaining necessary undertaking from party. Thus it is requested to please examine the issue at your end in the light of extent instructions as well as circumstances and arrange to withdrawn the debit and make delivery to party so that further litigation in this regard may be avoided and continuity of railway revenue may be ensured.”

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By a communication dated 12.04.2022, the respondent NF Railways informed the applicant/writ petitioner that the amount of Rs. 87,10,313/- that it kept as security deposit under contract involved in the case at Jaipur Division is sub-judiced due to the Court case pending before the Hon’ble High Court of Rajasthan in respect of recovery of outstanding amount of Rs. 1,29,82,963/- under the DB Civil Misc. Appeal No. 1670/2021 and that the said security deposit lying with the Jaipur Division of the Railways is not enough to recover the amount of Rs. 27,45,927/-. Therefore, by the said letter dated 12.04.2022 respondent N F Railways directed the petitioner to furnish Bank guarantee of Rs. 27,45,927/- in favour of FA

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& CAO, NF Railway, Maligaon so that on receipt of the said bank guarantee, CS/P/NGC can release and allow unloading of the consignment of 4 VPHs of PCET in compliance of the order dated 08.04.2022 passed in the connected WP(C) No. 2630/2022.

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Mr. Das, learned Senior counsel for the petitioner placed before the Court that though the concerned arbitrators in its Arbitral Award dated 21.09.2020 with regard to the dispute of leasing of Parcel Cargo Express Train from Alwar Goods Shed to New Guwahati Goods Shed via PTNR, CP etc and back to Alwar Goods Shed as per Letter of Acceptance No. C-78/117/ Parcel Cargo/Vol.2 dated 23.01.2018 between the petitioner and Senior Divisional Commercial Manager, Jaipur Division allowed the authorities in the Senior Divisional Commercial Manager, Jaipur Division, North Western Railways, Union of India to adjust the security deposit amounting to Rs. 85,98,720/- towards the awarded amount of Rs. 1,29,82,963/-, but the in Arbitration Application No. 28/2021 (CIS 28/2021) filed under Section 34 of the Arbitration and Conciliation Act,1996 challenging the said Arbitral Award dated 21.09.2020 preferred by the applicant/petitioner against the Union of India through Senior Divisional Commercial Manager, Jaipur Division, Jaipur the Commercial Court No. 1, Jaipur Metropolitan-II, Jaipur by order dated 04.08.2021 set aside the said Arbitral Award dated 21.09.2020 passed by the learned Arbitrators, noted above.

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Mr Das, learned Senior counsel for the applicant/petitioner also stated that the Union of India through Senior Divisional Commercial Manager, Jaipur Division, Jaipur challenging the said order dated 04.08.2021, passed by the Commercial Court No. 1, Jaipur Metropolitan-II, Jaipur preferred Misc. Appeal No. 1670/2021 before the Division Bench of the Hon’ble Rajasthan High Court at Jaipur, wherein the Hon’ble Division Bench on 17.12.2021 called for the records and thereafter, by order dated 11.02.2022 admitted said Misc. Appeal No. 1670/2021 but did not pass any order staying and/or suspending the said order dated 04.08.2021, passed by the Commercial Court No. 1, Jaipur Metropolitan-II, Jaipur in said Arbitration Application No. 28/2021.

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Therefore it is seen that the said security deposit of Rs. 87,10,313/- made by the applicant/ petitioner is still lying intact with the respondent Railways. Moreover, the opposite parties/respondents in the N F Railways failed to place anything before the Court to establish that the said amount of security deposit made by the petitioner is not lying with the

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respondent Railways.

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For the reasons above, considering the said security deposit of Rs. 87,10,313/- still lying with the opposite party/respondent Railways, the opposite party/respondents in the N F Railways are directed to release and allow unloading of the consignment of 4 VPHs of PCET of the applicant/ petitioner that reached New Guwahati on 04.04.2022 from Alwar, forthwith, in terms of the order dated 08.04.2022 passed in connected WP(C) No. 2630/2022.

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With the above observation and direction, this I.A.(C) stands allowed.

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JUDGE

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Comparing Assistant

D.G. Raj Commercial Pvt. Ltd. v. the Union of India and 10 Ors.

Case brief

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D.G. Raj Commercial Pvt. Ltd. v. the Union of India and 10 Ors.

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