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TMI Blog2004 (4) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... ities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the Statute to enforce its performance. The present is a case of pure and simple business contract. The writ petitioners have no statutory right nor any statutory duty is cast upon the appellants whose performance may be legally enforced. No writ of mandamus can, therefore, be issued as prayed by the writ petitioners. - Appeal (civil) 3142-43 of 2002 (With CA No.3144 of 2002) - - - Dated:- 5-4-2004 - S. Rajendra Babu And G. P. Mathur,JJ. JUDGMENT G. P. Mathur,J. These appeals by special leave have been preferred against the judgment and order dated 4.8.2000 of a Division Bench of Calcutta High Court, whereby the appeal preferred by respondent nos. 1 and 2 was allowed, the order dated 11.4.1997 of the learned single Judge dismissing the writ petition was set aside and the writ petition was disposed of with certain directions. 2. The respondent nos. 2 and 3 filed the writ petition praying that a writ of mandamus be issued commanding the appellant herein to produce the entire records relating to the withholding of delivery of goods p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mohur Mills and Gold Mohur Mills to furnish particulars in prescribed proforma to enable it to take up the matter with the Central Government for taking action under section 11(1) of the Act for the purpose of cancelling or varying any contract or agreement entered prior to pre-take over period which action had to be taken on or before 14.4.1984. After giving a reasonable opportunity of hearing to the parties concerned. the textile mills called upon the writ petitioners to verify the pre-take over contracts and joint meetings took place for the said purpose and the matter was referred back to the Officer on Special Duty. The writ petitioners then vide their letter dated 13.10.1984 requested the Chairman-cum-Managing Director of National Textile Corporation (South Maharashtra) Ltd. to deliver the balance quantity of cloth in terms of the pending contracts and to adjust all sums of money which had been paid by way of advance. The appellants sent a reply on 7.11.1994 stating that (1) all the outstanding contracts had been cancelled on the date of take over as they were not binding upon them; (2) the deposits that were made with the erstwhile management were not specifically marked t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f action contained in the writ petition having arisen in 1983 when the Take Over Act came into force and sought to be enforced in 1989 after expiry of long six years, is clearly belated. The applicant being also guilty of latches no relief should be granted in a writ petition which only helps the vigilant but not the ident. Besides, the application is also barred by the law of limitation and ought liable to be rejected." It was further pleaded that on the appointed date no goods manufactured, earmarked and ready for delivery as claimed by the writ petitioners were lying and as such there was no question of delivery of any remaining goods under any alleged contract. Whatever goods were delivered to the writ petitioners, the same had been earmarked for them as invoices in respect whereof had already been issued for which payments had been received earlier and title in respect whereof had already passed on to the writ petitioners. Similar procedure had been adopted in respect of many others and cloth was delivered to them which were lying manufactured in their account. However, there was no liability to deliver any further goods. The respondents had not received any advance payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been examined at their end and the position of contract balance as per the party and the contract balance as per the mills was as detailed in Annexure-A enclosed to the letter. It is further mentioned therein that the position could not be certified as absolutely correct as most of the original records and documents were in possession of CBI. It goes on to say that after taking over of the management, all the contracts for supply had not been subsequently cancelled and/or varied by the Additional Custodian at any time. If the request was to be considered, all parties similarly situated will have to be treated on the same footing and accordingly deliveries to the extent of Rs.101.72 lakhs will have to be effected to 224 parties of eight taken-over textile mills without receiving any demand. At the end of the letter it is stated that though the party had raised a dispute promptly the question whether a parties' claim had to be acceded to now after a lapse of six years raised a point of proprietary and also loss of Rs. 40.70 lakhs to NTC. In the concluding portion of the letter it is mentioned that although the party had raised a fairly arguable case, the best course of action would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the management which was in control of the concerned mills before the take over period and therefore in such circumstances it was obligatory on the part of the writ petitioners to prove the facts but no attempt to that effect had been made except relying upon the letter of the concerned mills of September, 1983. The learned Single Judge also held that he had directed the writ petitioners to produce the original of the pending contracts but they failed to comply with the said direction. They merely handed over a zerox copy of the contract of sale of cotton cloth which only contained the signature of the buyer and not of the seller. This zerox copy produced was of a printed proforma wherein the words "The Gold Mohur" had been typed before the printed words "Mills Ltd." Even this document did not make any mention of any payment having been made by way of advance nor it mentioned that any credit balance lying with the mills should be appropriated towards the contract. The learned Judge further held that the respondents had disowned their obligation to deliver the goods in November, 1984 but the writ petition was filed after more than five years and even if the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng one way or the other as to whether the existence of contract had been proved or not but by moulding the reliefs, we are of the opinion that even if it be found that it is not possible for the respondent no.2 to supply the goods to the petitioners, we have no doubt in our mind that in the event it is found that a sum of Rs.40 lakhs is lying in its hand, steps should be taken for its refund as expeditiously as possible and upon payment of interest @ Rs.12% p.a." 9. Shri Kirit N. Raval, learned Solicitor General appearing for the appellants, has strenuously urged that no part of cause of action had accrued in Calcutta as the Textile Mills were situate in Bombay and supply was to be made ex-factory at Bombay and the alleged payment by the writ petitioners was also made at the said place. It has thus been urged that it is not a case where even a part of cause of action may have accrued in the State of West Bengal which could enable the Calcutta High Court to entertain the writ petition and to grant any relief to the writ petitioners. Shri G.C.Bharuka, learned senior counsel appearing for the respondents herein (writ petitioners) has submitted that the writ petitioners were carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition proceedings conducted in Jaipur was made. It was held that the entire cause of action culminating in the acquisition of the land under Section 152 of the Rajasthan Act arose within the territorial jurisdiction of the Rajasthan High Court and it was not necessary for the company to plead the service of notice upon them at Calcutta for grant of appropriate writ, order or direction under Article 226 of the Constitution for quashing the notice issued by the Rajasthan Government under Section 52 of the Act. It was thus held that Calcutta High Court had no jurisdiction to entertain the writ petition. 11. The question of jurisdiction was considered in considerable detail in Oil and Natural Gas Commission v. Utpal Kumar Basu 1994 (4) SCC 711 and it was held that merely because the writ petitioner submitted the tender and made representations from Calcutta in response to an advertisement inviting tenders which were to be considered at New Delhi and the work was to be performed in Hazira (Gujarat) and also received replies to the fax messages at Calcutta, could not constitute facts forming an integral part of cause of action. It was further held that the High Court could not assume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is liable to be dismissed. However, in order to avoid any further harassment to the parties and to put an end to the litigation, we would examine the matter on merits as well. 13. Chapter II of the Textile Undertakings (Taking over of Management) Act, 1983 deals with Taking Over Of The Management Of Certain Textile Undertakings. Sub-section (1) of Section 3 lays down that on and from the appointed day, the management of all the textile undertakings shall vest in the Central Government. Sub-section (7) of Section 3 is important and it reads as under : Section 3 (7): For the removal of doubts, it is hereby declared that any liability incurred by a textile company in relation to the textile undertaking before the appointed day shall be enforceable against the concerned textile company and not against the Central Government or the Custodian. This provision is very clear and says in no uncertain terms that any liability incurred by a textile company in relation to the textile undertaking shall not be enforceable against the Central Government or the custodian. The effect of this provision was examined in Rashtriya Mill Mazdoor Sangh v. National Textile Corporation (South ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be enforced against the Central Government or the Custodian. We are thus unable to accept the view taken by the Division Bench of the High Court that it was not a liability of the textile company. 15. In paras 7 and 9 of the counter affidavit filed by the appellants before the High Court, the correctness of Annexure A was specifically denied. In paras 15 and 16 it was categorically pleaded that on the appointed day no goods manufactured and earmarked for the writ petitioners were lying in the mills. In paras 21, 22, 24 and 27 receipt of payment allegedly made by the petitioners was also denied. The appellants herein having specifically denied receipt of any payment or existence of any manufactured and earmarked cloth for the writ petitioners on the appointed day, no relief could have been granted to the writ petitioners in proceedings under Article 226 of the Constitution. The writ petition raised highly disputed questions of fact which, as rightly observed by the learned Single Judge, could be proved by leading evidence in a properly constituted suit and was not a matter to be investigated in a writ petition. 16. The appellants herein had also disputed the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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