The above appeals are directed against the common order of the learned Judge dated 21.12.2006 made in W.P.Nos.16121 and 16122 of 2002, by which the learned Judge allowed the writ petitions filed by the respondents herein to the extent that the demand of demurrage is not legally payable by the writ petitioner.
2. The learned Judge has relied upon the judgment of this Court in W.P.Nos.17292 of 1993 and 797 of 1994 (Sree Mahalakshmi Flour Mills vs. State of Tamil Nadu) dated 15.06.2001, by which the clause regarding the payment of demurrage in the tender conditions in that case, which is identical to the clause in the present case, was considered. The said clause is a follows:
" If he fails to take delivery of the wood after all the amounts due on such wood are paid within the 'voidah', the wood will be kept in double lock or single lock as the case may be until such time as agreed to take delivery thereof and he shall be liable to pay a demurrage of Rs.30/- per tonne per day for each day the wood so kept in double lock or single lock beyond 75 days."
3. On facts, it is clear as it is submitted by the learned counsel for the appellant that the auction for the sale of 2 M.Ts. of sandalwood took place on 24.01.2002 and as per the clause in the tender conditions, the writ petitioners paid 20% of EMD. The sale was confirmed by order dated 04.02.2002 which was served on the writ petitioners on 09.03.2002. As per the terms of the tender, after confirmation, within 15 days, another 30% of the amount had to be paid and the remaining amount of 50% had to be paid within 45 days, but the respondent/writ petitioners did not pay the said amount within the time. The learned counsel for the appellant submitted that the respondents paid the entire amount on 08.05.2002 and thereafter, they took delivery on 11.05.2002 and for the period from 08.05.2002 to 11.05.2002, the demurrage charge has been imposed on the writ petitioner/respondents.
4. A reading of the proceedings of the District Forest Officer, Salem Division in C.No.1353/02-S dated 10.05.2002 makes it clear that the said official has permitted the respondent/writ petitioners to take delivery of the materials on 11.05.2002. It is, pursuant to the said order, the delivery was taken on 11.05.2002.
5. Mr.N.Kirubanandam, learned Special Government Pleader appearing for the Forest Department would submit that the writ petitioners were permitted to pay the entire amount on 08.05.2002 with penal interest and though the amount was due much earlier, the petitioner took steps to pay the amount only on 08.05.2002 and took delivery on 11.05.2002 and there was delay of 3 days and in respect of those three days demurrage charges were imposed. In support of his contention, he would also rely upon the judgment of the Division Bench of this Court in Writ Appeal No.405 of 2003 etc., batch dated 25.10.2007.
6. We do not agree with the learned Special Government Pleader for Forest Department for the reason that the official concerned himself had given permission to the writ petitioner/respondents to take delivery of the materials only on 11.05.2002 and hence, the writ petitioner/ respondents could not be expected to enter into the place on 08.05.2002, the date on which the amount was paid. It is relevant to point out that the writ petitions were filed on 04.05.2002 and pending the writ petitions, the Forest Department has permitted the writ petitioners to pay the entire sale consideration on 08.05.2002. In the judgment relied upon by the learned Special Government Pleader, viz., Writ Appeal No.405 of 2003 etc., batch dated 25.10.2007 the Division Bench, in paragraph 20 and 21, has made it very clear that, " 20. In respect of demand of penalty and demurrage, the clause containing the demurrage proceeds that on the purchasers presenting challan as proof that 50% of sale value having been paid, the fact of remittance would be verified with the bank by asking for the triplicate copy of the challan or bank advice. On the receipt of which a proportion of the wood purchased will be weighed in his or in the agent's presence and the quantity handed over to him. If, however, proof is produced that the entire sale value has been paid, the whole quantity of sandalwood purchased will be weighed and handed over after due verification of the factum of remittance as above. The purchaser must take delivery or remove the whole of the goods sold to him within 75 days from the a of receipt of confirmation order. If he fails to take delivery of woods after all the amounts due on such wood are paid within the voidah, the wood would be kept in double lock or single lock as the case may be until such time as agreed to take delivery thereof and he shall be liable to pay a demurrage Rs.30/- per tonne per day for each day the wood so kept in double lock or single lock beyond 75 days.
21. On the reading of the above condition it is clear that on payment of the entire amount by the successful bidder and on handing over of the goods to the purchaser, if the purchaser failed to take delivery within the voidah date, the woods would have to be kept in double or single lock as the case may be until such time as agreed to take delivery thereof and the purchaser shall be liable to pay a demurrage Rs.30/- per tonne per day for each day the wood kept in double or single lock beyond 75 days from the date of confirmation."
The Division Bench has also held that the question of demurrage would arise only after the entire amount is paid. As per the clause in the tender notification, if the amount stipulated is not paid within the time prescribed in the tender conditions, it is open to the Forest Department to cancel the contract by forfeiting the entire amount and re-auction the same to third parties. Such a thing has not happened in this case. The Forest Department having allowed the writ petitioners to pay the entire amount on 08.05.2002, cannot now turn around and say that the writ petitioners delayed the payment, especially when the official has passed an order permitting the writ petitioners to take delivery on 11.05.2002. In such view of the matter, it is not possible to interfere with the order of the learned Judge. Accordingly, the writ appeals fail and the same are dismissed. No costs. Connected miscellaneous petitions are closed.
kh To The District forest Officer Salem Division Salem