1 srk wp-L-2418-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2418 OF 2010 M/s. Kishan Freight Forwarder through it's proprietor Shri Kishan Kukreja. ... Petitioner Versus Union of India and another. ... Respondents Ms. Neeta Masurkar i/by Mr. Arun Kumar Roy for the petitioner. Mr. Suresh Kumar for the respondents. CORAM : MOHIT S. SHAH, C.J. & DR. D.Y. CHANDRACHUD, J. Thursday, October 28, 2010 P .C. Rule. By consent rule called out and heard forthwith. 2. The respondents had invited tenders for leasing of parcel space in Brake Vans/Parcel Vans/Assistant Guards Cabin of 25 tonnes by Train No. 2903/04 for loading on all running days in a year for a period of 3 years. 3. The petitioner's offer was accepted at Rs.1,51,846/- on usual terms and conditions of the Western Railway and acceptance letter was issued by respondent No.1 on 12 December 2006. The three year period was to come to an end on 11 December 2009. The contract also contained clause 20 for extension which reads as under: "20.0 Extension to lease contract: 20.1 Extension of lease is permissible only in case of long term lease of 3 years wherein the same can be extended only once, by 2 more years at a lease rate of 25% more than the lumpsum-leased 2 srk wp-L-2418-10.sxw freight rate subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract." 4. The petitioner, accordingly, applied in terms of the above clause for extension. The extension was granted initially for three months upto 10 March 2010. 5. According to the petitioner, since the petitioner was not being given benefit of clause 20 of the contract, the petitioner filed Civil Suit No.305 of 2010 wherein the City Civil Court, Mumbai granted ad-interim injunction restraining the respondent-railways from discontinuing the contract. The injunction continued and the respondent-railways moved an application under section 8 of the Arbitration and Conciliation Act, 1996. The City Civil Court allowed that application and directed the petitioner to refer the dispute before the sole Arbitrator. By the said order dated 5 August 2010, the City Civil Court disposed of the suit and the notice of motion. 6. The grievance in this petition is that the respondents have not taken any steps for appointment of sole Arbitrator but the contract was continued till 15 October 2010. Thereafter by the impugned order dated 15 October 2010, the respondents have informed the petitioner as under: "...... it is advised that the existing lease contract for leasing of VPH by train No.2903/04 of M/s. Kishan Freight Forwarders may be discontinued with immediate effect as per the decision of Hon'ble City Civil Court, Mumbai. This has the approval of the competent authority." 3 srk wp-L-2418-10.sxw 7. The petitioner challenges the said decision as communicated by the said letter. The learned counsel for the petitioner submits that the City Civil Court, Mumbai has never given any finding adverse to the petitioner. On the contrary, the ad-interim injunction was granted in favour of the petitioner and it was only upon the notice of motion No.645 of 2010 filed by railways for referring the dispute to the arbitration under section 8 of the Arbitration and Conciliation Act that the City Civil Court had granted that prayer but City Civil Court never granted ad-interim prayer in favour of the petitioner. 8. The learned counsel for the petitioner invited our attention to the order dated 13 April 2010 in Writ Petition (Lodging) No.247 of 2010 wherein similar case is reported and the statement made on behalf of the respondent- railways that clause 20 of the contract would be applicable to all such contractors like the petitioner and that as per the policy decision, new tenders are being invited for the said lease contract and the contract will be continued till finalisation of the new contract by railways with a clarification that the petitioner will be allowed to participate in the tender being invited for awarding lease contract. 9. The learned counsel for the respondents submits that the tenders were going to be invited in respect of train No.2903/04 also but it was on account of stay obtained by the petitioner in City Civil Court, the tender process could not be initiated in respect of the same. 10. Having heard the learned counsel for the parties, we are of the view that the petitioner cannot be discriminated against on the ground that petitioner had gone to the City Civil Court and obtained ad-interim injunction from the City Civil Court. 4 srk wp-L-2418-10.sxw 11. The fact remains that contract between the petitioner and the respondents also contained clause 20 which is quoted hereinabove. As per the stand adopted by the respondent-railways on 13 April 2010, the respondents should have also given similar benefit to the petitioner and continued the contract in favour of the petitioner till new contract is awarded by the respondents after inviting fresh tenders. 12. In the result, the writ petition is allowed. The impugned communication dated 14/15 October 2010 at Exhibit `P' to the petition, is quashed and set aside and respondents are directed to continue the petitioner's contract in respect of train No.2903/04 till new lease contract is awarded for the above train. 13. The respondents will, accordingly, invite new tenders for the said lease contract and the petitioner is also eligible to participate in the tenders to be invited for awarding new lease contract. This direction shall be carried out within three days from today. Rule is made absolute in the above terms. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.