IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA W.P.No.10757/2012 & W.P.Nos.11269-11270/2012 (GM-TEN) BETWEEN:
GOWRI ENTERPRISES BABALESHWARA NAKA JAMAKHANDI ROAD BIJAPUR BY ITS PARTNER SRI HARISH S/O NEMICHAND AGARWAL AGED ABOUT 47 YEARS OCCUPATION: BUSINESS R/O BASVANABAGEWADI DIST: BIJAPUR (BY SRI PRAVEEN RAIKOTE B, ADV.) AND:
THE FOOD CORPORATION OF INDIA REGIONAL OFFICE NO.10, EAST END MAIN ROAD JAYANAGAR BANGALORE.
(SRI N K RAMESH, ADV.) ... PETITIONER … RESPONDENT THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS AND ALLOW THIS WRIT PETITION; QUASH ANNX-D PASSED BY THE RESPONDENT DT: 18.09.2010 AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner was awarded the H & T Contract at FSD, Bellary. In respect of the said contract, certain disputes had arisen between the parties and in that light, the petitioner was before this Court in W.P.No.33411/2010. This Court while disposing of the petition through the order dated 05.01.2011 had taken note that insofar as the contract, the contention does not remain open as a similar work had been awarded by issuing fresh tender. However, insofar as the amount due and payable to the petitioner as claimed, it was observed that if any amount towards EMD deposited by the petitioner is not released by the respondents, appropriate action in accordance with law could be urged.
2. Though the instant petitions are filed, the respondents have contended that the petitioner had committed breach of the terms and therefore in that light since the respondents have also suffered demurrage as claimed by the Railways, the security deposit as kept by the petitioner was to be forfeited and further amount is to be recovered.
3. In that circumstance, when the petitioner contends that the petitioner has performed the contract and the non-performance is only in view of the petitioner not being able to perform such contract at Bellary which according to the petitioner had been brought to the notice of the respondents, these are aspects which are in dispute and would have to be established in an appropriate proceedings.
4. Since the matter pertains to a contract between the parties and the same also raises a disputed question of fact, a consideration in the instant petition would not be justified. The petitioner however would have the liberty of filing an appropriate proceedings in accordance with law, if the petitioner still continues to be aggrieved and intends to recover from the respondents. In that regard, all contentions are left open.
The petitions stand disposed of accordingly.
Sd/- JUDGE hrp/bms