THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.3501 of 2003 (Dated: 10-11-2009) Between: M/s. Sri Krishna Pulverisers, Industrial Estate, Balanagar, Hyderabad and seven others …Petitioners A n d The Singareni Collieries Co. Ltd., Red Hills, Hyderabad rep. by its Chairman and Managing Director …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.3501 of 2003 ORDER: This writ petition has been filed by the petitioners, who are eight in number, assailing the action of the respondent in demanding premium at the rate of Rs.75/- per ton on the basic price, in respect of coal purchases for which already delivery orders have been issued in their favour prior to 01.01.2003. 2. Chandrabhan Agarwal has sworn to the affidavit filed in support of the writ petition. The case of the petitioners, in brief, as set out in the affidavit filed in support of the writ petition, is: - The petitioners are all small-scale industries and they are registered with the Government of Andhra Pradesh, Department of Industries, as small- scale industries. They use coal for the purpose of running their factories and they purchase coal from the respondent. The respondent notifies the coal price from time to time and at the notified price the petitioners purchased coal, which is of various grades. The petitioners purchased coal of `C’, `D’, `E’ grades. The coal is sold and allotted at several inclines and the petitioners take delivery of coal at different mines of the respondent including from R.K-6 Incline. As per the procedure, the prospective buyer of coal will have to pay the entire price in advance and the respondent issues delivery order for appropriate quantity of coal. As against the said delivery order, the coal delivery will take place to the buyer as and when his turn comes depending upon the allotment made by the respondent. The petitioners purchased the coal in the month of November and December 2002 by paying the total amount in favour of the respondent and thereupon the respondent issued delivery orders. The petitioners have to take delivery of the coal as per the allotment made by the respondent and so far the allotment has not been made in respect of the delivery orders issued to the petitioners in the month of December, 2002. While so, the respondent has put up a notice dated 30.12.2002 stating that a premium of Rs.75/- per ton will be charged on the basic price with effect from 1.1.2003 in respect of coal of `E’ Grade purchased from RK-6 incline. The said action of the respondent insisting the petitioners to pay the premium of Rs.75/- per ton is assailed in this writ petition. 4. The respondent filed counter affidavit. G.Surender has sworn to the counter affidavit. It is stated in the counter affidavit that notice calling upon the purchasers to pay Rs.75/- per ton on `E’ grade coal is as per the conditions of the contract, as stated in the delivery order. Much emphasis has been laid on clause 17 of the terms and conditions of sale, which reads as hereunder: “NOTIFIED COAL PRICES PREVAILING ON THE DATE OF DELIVERY WILL ONLY BE APPLICABLE.” 5. Para 8 of the counter affidavit needs to be noted and it is thus: “ With regard to factual allegations made in the Affidavit, they are specifically denied as not true and correct, leave alone they are not germane or relevant to the subject matter involved in the dispute. However, it is submitted that the allegations made in the Affidavit that premium or additional price is deemed for `E’ grade coal at RK-6 Incline and not at other Mines, it is submitted that the coal of RK-6 Incline is of superior quality. In this regard, I submit that the respondents’ company is selling `E’ grade coal and the dispatch points for the sale of these points are at GDK- 8A incline, GDK-10A Incline, Medipalli OC and RK-6 Incline. As far as the `E’ grade coal is concerned, it has different useful Heat Value, commonly known as “UHV”. The different UHV for the same `E’ grade coal at the above dispatch points are as follows: - NAME OF THE MINE USEFUL HEAT VALUE GDK-8A Incline …. 3454 GDK-10A Incline …. 3428 Medipalli OC …. 3571 RK-6 Incline …. 3867 As can be seen from the above, the Useful Heat Value of RK-6 Incline is the highest. The respondent Management felt that it should be charged a higher price keeping in view of the value of the commodity. Accordingly, it has been decided to charge an additional price that is to say to charge Rs.75/- over and above the notified price for deliveries taken or after 1-1-2003 as per the notice impugned herein.” 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioners submit that the petitioners have already paid the amount at the notified rate and delivery challans have been issued and it is the respondent, who has to deliver coal as per the delivery challans. A further submission has been made that insisting the petitioners to pay premium at the rate of Rs.75/- per ton is contrary to the terms of the contract and therefore, the notice dated 30.12.2002 cannot be given effect to the petitioners who have already paid the entire amount, as per the notified rate. 8. Learned counsel appearing for the respondent submits that as per clause 17 of the Terms and Conditions of Sale, the petitioners are bound to pay the notified coal price prevailing on the date of delivery. 9. Indisputably, the petitioners have paid the amounts at the notified rates and thereupon, the respondent issued delivery challans. The delivery is to be effected by the respondent. Because of non-availability of stock, delivery of the material is delayed. The respondent, being a defaulting party in effecting delivery of the material to the petitioners, pursuant to the delivery challans, cannot take advantage of the subsequent events. 10. In the result, the writ petition is allowed setting aside the notice dated 30.12.2008 in respect of coal purchases, for which delivery challans have already been issued. No order as to costs. _____________________________ B.SESHASAYANA REDDY, J Dt.10-11-2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.3501 of 2003 (Dated: 10-11-2009)