M/s. Manas Electric Company vs The Chief Engineer, Electricity, Corporate Planning, GESCOM and Superintending Engineer (Electrical), MIS GESCOM

B.S. Patil, J.—In this writ petition, petitioner is challenging the order dated 04.06.2013 passed by the Chief Engineer, Electricity, Corporate Planning, Gulbarga Electricity Supply Company Limited (for short ''GESCOM''), Gulbarga. By the impugned order, 1st respondent has short closed the purchase order dated 31.03.2011 for supply of 11 KV GI Pins for Nirantara Jyothi Yojane in Gulbarga Circle, in view of the alleged default committed by the petitioner in supplying the balance quantities of the materials within the period agreed. 1st respondent has further made it clear as per the impugned order that fresh tenders would be invited for procuring materials in terms of the requirement of GESCOM.

Petitioner is the manufacturer of 11 KV GI Pins. Petitioner participated in the tender process called for by the respondent for supply of 11 KV GI Pins. As the petitioner emerged as successful bidder, purchase order bearing No. 6559 dated 31.03.2011 to supply 1,47,728/- 11 KV GI Pins for Nirantara Jyoti Works in Gulbarga Circle with delivery schedule from May 2011 to October 2011 was issued by the 1st respondent. As can be seen from the purchase order and the delivery schedule mentioned therein, total quantity of 1,47,728 11 KV GI Pins were required to be supplied by 11.10.2011. Delivery Schedule mentioned in the purchase order stipulates that different quantity of 11 KV GI Pins were required to be supplied by different dates during the year 2011. Petitioner has supplied 75,000 11 KV GI Pins on 15.07.2011. Thereafter, according to the petitioner, inspection was carried out on 28.10.2013 for the remaining 72,728 numbers of 11 KV GI Pins. The Samples were certified and although petitioner was ready to supply the same, impugned action has been taken to short close the supply order without receiving the materials by issuing delivery instructions.

As can be seen from Annexure-G communication issued by the Chief Engineer - respondent No. 1 on 24.01.2013, a reminder has been sent alleging non supply of balance quantity in terms of the purchase order. A request is also made to the petitioner to supply the quantities immediately otherwise action would be taken as per the terms of the agreement. Even thereafter, petitioner has not supplied the materials. Therefore, termination notice dated 28.02.2013 was issued as per Annexure-J. Petitioner gave a reply dated 13.03.2013 vide Annexure-K. After considering the same, the impugned order is passed vide Annexure-A on 04.06.2013.

Learned counsel for the petitioner submits that there was no fault on the part of the petitioner inasmuch as petitioner had supplied bulk of the quantities well within time and the remaining quantity could not be supplied as the respondent did not issue delivery instructions after inspection was carried out.

Perusal of the notice issued by the respondent produced at Annexure-G makes it clear that on 24.01.2013 petitioner was reminded of his default in not supplying the materials even after inspection was conducted on 29.10.2011 and although dispatch instruction was issued on 29.08.2012. Therefore, question whether petitioner was at fault or the respondents did not place delivery instructions is a matter which has to be established before the Civil Court. Prima facie, it is seen from Annexure-G notice that even after inspection and even after issue of dispatch instructions, petitioner failed to supply the materials. As the petitioner has disputed this position, in writ proceedings, this disputed aspect cannot be gone into as no evidence can be recorded. Therefore, efficacious remedy for the petitioner is to approach the Civil Court and establish his grievance. It is well established that terms of contract cannot be enforced by availing writ jurisdiction.

Apex Court in the case of The Rajasthan State Industrial Development and Investment Corporation and Another Vs. Diamond and Gem Development Corporation Ltd. and Another, has held that it is a settled legal proposition that disputes relating to contract cannot be agitated, nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution of India as the writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. Therefore, without expressing any opinion on the merits of the claim made by the petitioner, this writ petition is dismissed reserving liberty to the petitioner to avail alternative remedy in accordance with law.