IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.635 of 2010 Bijay Shankar, S/O Late Ram Swarath Sah, Proprietor of M/S R.S. Steel , New Civil Line, Turha Tola, Buxar, P.S - Town, District - Buxar, Bihar. ---- Petitioner--- Appellant. Versus 1. The East Central Railways through its General Manager, Hajipur , Vaishali. 2. The Controller of Stores, East Central Railways, Biscomaun Bhawan, Patna. 3. The Chief Material Manager, East Central Railways, Hajipur, Vaishali. 4. The Deputy Chief Material Manager (Depot.) East Central Railways, Samastipur. ---- Respondents/Respondents. ----------- 2. 7.4.2011 Heard Mr. Mira Kumari for the appellant, and Mr. Madhu Prasun for the respondents. The instant appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the order dated 26.2.2010, passed by a learned Single Judge of this Court in C.W.J.C. No. 3552 of 2010, whereby the prayer of the petitioner to consider the extension of time to deposit the balance amount for the auction of the 14 condemned coaches has been rejected. 2. The relevant facts for the disposal of this appeal in short are as follows: The appellant (petitioner) is the owner of a Kabari shop at Samastipur. The railway published tender notice for auction of 14 numbers of condemned 2 coaches on 6.12.2007. The appellant being highest bidder succeeded in the auction held on 29.12.2007. Pursuant to grant of authority letter, the appellant immediately deposited the entire earnest money to the tune of Rs.3, 27, 133/- by demand draft. In terms of the authority letter, the appellant had to deposit the balance sale value within 20 days by 17.2.2008, which period could be extended up-to 50 days with due interest. On inspection, the appellant found only 12 condemned coaches at the site with electrical fittings. As per terms and conditions of the railways only after removal of electrical fittings, the purchaser can take delivery. The appellant made representation to extend the times for depositing balance sale deposit, till all coaches are made available after detaching the electrical fittings. The Deputy Chief Material Manager vide his order dated 3.9.2008 rejected the representation of the appellant to extend the time and directed him to withdraw his earnest money. 3. Being aggrieved by the rejection of the representation dated 3.9.2008; the appellant moved this Court vide C.W. J.C. No. 11466 of 2009. The learned Single Judge vide order dated 13.10.2009 disposed of the writ petition with a direction to the appellant to approach the Chief Material 3 Manager, East Central Railway Hajipur, Vaishali (respondent no.3). Learned Single Judge observed that in case the Chief Material Manager, East Central Railway, Hajipur is satisfied that only 12 number of coaches were made available at the site and were fitted with electrical fittings and thus could not have been removed, he would consider the request of the appellant for extension of time. 4. The appellant appeared before the Chief Material Manager, East Central Railway, Hajipur in terms of the direction of this Court. The matter was considered by the Chief Material Manager who rejected the prayer of the appellant which was communicated on 15.12.2009, contained in Annexure 11 to the writ petition. The Chief Material Manager observed that appellant should have first deposited the entire amount latest within 50 days of issuance of the authority slip as per prevailing norms. The grievances regarding removal of electrical fittings and making available two missing coaches could have been made only after deposit of entire balance sale value. Regarding unavailability of two coaches, he stated that they were shifted to adjacent side line. The order said that placing of two coaches to another line cannot be termed as denying the sold lot for 4 delivery. He further observed that the sale has been cancelled and it would be open for the appellant to receive EMD back. 5. The appellant challenged the impugned order dated 15.12.2009 passed by the Chief Material Manager/Sale Hajipur before this Court bearing C.W.J.C. No.3552 of 2010. The learned Single Judge vide order dated 26.2.2010 rejected the writ application. The learned Single Judge observed that the reasons assigned in the impugned order of Chief Material Manager cannot be termed to be arbitrary or unreasonable. The instant appeal is against the order dated 26.2.2010, passed by the learned Single Judge in C.W.J.C. No. 3552 of 2010 before us. 6. The appellant submits that he had valid reasons for not depositing the balance sale value, till all the electrical fittings of condemned coaches were removed, as it is also stipulated in the notice that the auction purchaser can remove a coach only after all electrical fittings are detached by the authority concerned. He submits that in another auction sales held on the same day he was the highest bidder for purchase of a similar condemned coach. The bid was held on 29.12.2007 and the entire amount was deposited within time on 5 17.2.2008. The appellant submits that the condemned coach was made available for delivery only in the month of July, 2009 after long lapse of 18 months. The railways took more than 17 months to remove all the electrical fittings which caused the delay in handing over the condemned coach. He submits that the money of the appellant remained all the time blocked with the result that he could not generate the fund for the present purposes. He submits that all the 14 coaches have not yet been auction sold. 7. The counter affidavit does not controvert the factual aspect of delay in handing over the condemned coach of other auction sale around the same time. 8. On consideration of entire materials on record and pleadings of parties, we find that sufficient cause has been shown for not depositing the balance amount for which the railways themselves ought to be blamed on account of long delay in delivering the earlier auction condemned coach for which the appellant had deposited the entire amount. The appellant submits that the condemned coaches are lying with the railway and is ready to deposit the entire bid amount within a period of four weeks from today. The railways does not controvert that the 14 condemned coaches have not yet 6 been auctioned. In the circumstances, we direct that if the appellant deposits entire balance amount within four weeks from today, the railways would be expected to hand over the condemned coaches to the appellant within a further period of four weeks from the date of deposit. In so far as the question of payment of interest is concerned, it will be open to the appellant to file an application for remission of the interest before the concerned Chief Material Manager. The appellant shall be entitled to raise the ground of delay of 18 months in the delivery of the condemned coach obtained in the other auction purchase. 9. The appeal is accordingly allowed. The order of the learned Single Judge upholding the order of the Chief Material Manager/Sale Hajipur, contained in Annexure-11 of the writ application, is set aside. Vinay/ ( S. K. Katriar,J. ) ( S. P. Singh, J.)