Petitioner's offer for supply of petroleum coke has been accepted by the respondent. Ext.P1 is the tender dated 11.02.2011. As per the tender conditions, petitioner has to make a deposit of `2,00,000/- towards Earnest Money Deposit and also to furnish 5% of the total value of the order as security deposit. Petitioner made deposit of `2,00,000/- towards earnest money and also gave bank guarantee towards security deposit. The total supply of the petroleum coke is quantified at 1150 metric ton in a month and around 35 metric to 40 metric ton per day. The first purchase order is Ext.P7. This would indicate that an order for supply of 1000 metric ton has been placed with the petitioner. Petitioner supplied 289.760 metric ton as evident from Ext.P22 , valued at `31,12,356.89/-. Petitioner submits that out of the said amount he received `10,00,000/-. However, balance has not been paid to him. Petitioner submits that a dispute arose between the petitioner and respondent on account of amendment of purchase order. Ext.P10 is another purchase order. Though it is styled as an amendment, by which petitioner W.P(C).No.19734 of 2013N 2 has been directed to supply an enhanced quantity from 1000 metric ton to 4125 metric ton. Petitioner submits that finding is impracticable with the purchase order, he could not supply balance of the material placed in Ext.P7. This resulted in dispute and withholding balance payment of the amount mentioned in Ext.P22. Petitioner approached this Court for release of the balance amount. This Court by interim order stayed the revoking of bank guarantee of the petitioner and also directed to keep bank guarantee as alive.
Learned counsel for the respondent submits that the petitioner could not supply the entire materials as per Ext.P7. It is further submitted that petitioner having failed to honour the terms and conditions of the contract with respect to the supply of materials as per Ext.P7 is now banking upon Ext.P10. Therefore, a person who have committed breach cannot take advantage of his own breach seeking a direction to pay the balance amount for the supply already made. It is further submitted that respondent suffered huge loss on account of non supply of materials and they are entitled to proceed against the petitioner.
It is to be noted that the contract has not been terminated W.P(C).No.19734 of 2013N 3 so far. Question whether respondent have suffered loss or not has to be determined through proceedings in appropriate court. The fact remains that the petitioner has delivered materials to the respondent. In Ext.P1, under clause 13 payment schedule is mentioned. It is stipulated that payment shall be made on the actual quantity of the materials received. Therefore, once actual quantity is received, necessarily payment has to be effected based on the terms of the contract. Whether respondent is entitled for damages or not cannot be decided at this stage. Therefore, based on the terms and conditions in Ext.P1 respondent shall release the amount due to the petitioner for the actual quantity of the materials supplied to them, which shall be done within a period of two months. However, EMD and security deposit need not be released to the petitioner. That shall be kept in abeyance for a period of two months to work out respondent's remedy against the petitioner seeking damages. If respondent wants to proceed against the petitioner for recovery of any loss, the continuation of EMD and security deposit will be depend upon the decision of the Civil Court if any. Respondent shall approach the Civil Court seeking damages. If the respondent W.P(C).No.19734 of 2013N 4 fails to approach the Civil Court for recovery of loss, EMD and security deposit shall be released to the petitioner on the expiry of two months. The bank guarantee shall be renewed for a period of two months and renewal thereafter will depend upon the decision of the Civil Court if any. If any amount quantified as damages exceeds the amount payable to the petitioner, it is open for the respondent to retain any amount which is due to the petitioner towards supply based on the order of the Civil Court. The issues regarding breach and interest payable are left open.
Writ Petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE.
Sbna/01/12/2014