The petitioner challenged an under-loading charge. The court held the party must seek redressal via the dispute settlement mechanism in the contract and disposed of the writ petition without adjudicating the merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1572 of 2017
(Through Hybrid Mode)
M/S. Sainik Mining and ….. Petitioner Allied Services Ltd. Mr. Avijit Patnaik, Advocate Vs. ….. Mahanadi Coalfields Ltd.& Opposite Parties Ors. Mr. Saktidhar Dash, Senior Advocate
CORAM: JUSTICE ARINDAM SINHA ORDER 03.11.2021 Order No. 03. 1. Mr. Patnaik, learned advocate appears on behalf of petitioner, who executed work under contract for Mahanadi Coalfields Limited. He submits, under challenge is communication dated 30th July, 2016, whereby under loading charge has been made. According to him it is a penalty. No opportunity of hearing was granted in issuing this demand, purportedly in terms and conditions as per clause-25.01 of the contract. He refers to clause-25.01, reproduced below :-
“ All Pay loaders which are engaged for mechanical loading of coal into wagons are to be fitted with “True load” system to measure the quantity of coal loaded into particular wagon which are forming part of the rake.”
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clause in relation to clause-25.01, in the terms and conditions. Furthermore his client by letter dated 1st January, 2017 addressed to the Regional Transport Authority (RTO), had requested permission for installation of true load system in the pay loaders engaged for mechanical transfer of coal. The office replied by letter dated 3rd January, 2017. According to him, permission was denied. Contents of said letter dated 3rd January, 2017 are reproduced below :-
“ In inviting reference to the subject cited above, I am intimating you that fitting of True Load system to measure the quantity of coal in terms of tonnage by the loader only can be assessed by the carrying capacity of the bucket in terms of cubic meter. True load only can be determine converting cubic meter to tonnage in respect of different minerals. Therefore alternation/fitment of instrument of any type (True Load system etc.) is not authorized/approved system.
This is for your information and necessary action.”
He submits, there should be interference. Not only is the contract silent on imposition of penalty but also the transport authority did not allow installation of true load system.
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bill/security deposits. He also refers to clause-12 in the General Terms and Conditions to submit, it was incumbent upon petitioner to seek settlement of disputes in terms thereon. He relies on judgment of the Supreme Court in Mahanadi Coalfields Ltd. V. Dhansar Engg. Co. (P) Ltd. reported in (2016) 10 Supreme Court Cases 571 , paragraph-23, wherefrom following passage is extracted and reproduced below :-
“23. ….. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightaway approach the High Court by way of writ petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impressible.”
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Prasant
settlement of dispute.
(Arindam Sinha)
Judge
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Colour shows how this judgement treated each authority
Mahanadi Coalfields Ltd. V. Dhansar Engg. Co. (P) Ltd.Referred¶18
Mahanadi Coalfields Ltd. V. Dhansar Engg. Co. (P) Ltd. (2016) 10 Supreme Court Cases 571
M/S. Sainik Mining and Allied Services Ltd.
Mahanadi Coalfields Ltd.
Arindam Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
