The writ petition was thereafter filed in December, 1989 seeking the reliefs mentioned in the earlier part of the judgment.
the textile mills called upon the writ petitioners to verify the pre take over companytracts and joint meetings took place for the said purpose and the matter was referred back to the Officer on Special Duty.
The writ petitioners, thereafter approached the appellants for release of the goods and one bale of companytractual specification was delivered but 12 bales were detained by the Excise Authorities, as a companysequence whereof the same were number delivered.
It was further pleaded that the letter cannot be taken as an admission of the alleged claim of the writ petitioners under any circumstances.
The letter makes a reference to the representation made by the writ petitioners and two other firms regarding delivery of companyton fabrics by Finlay Mills and Gold Mohur Mills against pre take over companytracts.
The writ petitioners had been purchasing various quantities of cloth from Finlay Mills Limited and Gold Mohur Mills Limited, both situate in Bombay.
2 and 3 filed the writ petition praying that a writ of mandamus be issued companymanding the appellant herein to produce the entire records relating to the withholding of delivery of goods pursuant to the companytracts mentioned in Annexure A to the writ petition and also to deliver the goods mentioned in Annexure A upon adjustment of advance payment made by them.
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, numberrelief companyld have been granted to the writ petitioners in proceedings under Article 226 of the Constitution.
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 number after a lapse of six years raised a point of proprietary and also loss of Rs.
The appellants sent a reply on 7.11.1994 stating that 1 all the outstanding companytracts had been cancelled on the date of take over as they were number binding upon them 2 the deposits that were made with the erstwhile management were number specifically marked towards any of invoice of packed material and as such companyld number be adjusted against any future delivery and the writ petitioners will have to claim this amount from the erstwhile management since the custodian is prohibited from discharging any liability pertaining to pre take over period and 3 there were numberinvoices against which payments were received from the petitioners prior to take over and as such the question of effecting delivery of paid stocks did number arise.
By the letter dated 26.9.1993 the mills were requested to take necessary steps for immediate delivery of the goods, in respect whereof payment had already been made.
It goes on to say that after taking over of the management, all the companytracts for supply had number been subsequently cancelled and or varied by the Additional Custodian at any time.
6 An affidavit in reply was filed to the aforesaid supplementary affidavit and it was submitted that the writ petitioners were put to strict proof of the letter dated 24.10.1989 as the same was alleged to have been given to them by Mr. Sundaram without disclosing the reason for doing so.
It was also pleaded that the Government of India had number accepted the alleged claim of the writ petitioners and had in fact launched prosecution against the Principal Officer of respondent number4 for giving delivery of stocks to several parties after the date of taking over.
The National Textile Corporation South Maharashtra vide their letter dated 15.3.1984 requested the Officer on Special Duty of taken over mills including Gold 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 companytract or agreement entered prior to pre take over period which action had to be taken on or before 14.4.1984.
The companycerned mills supplied and delivered the goods to the petitioners from time to time but a substantial part of the companytract remained unexecuted.
The writ petition was companytested on behalf of the appellants herein and the Principal Officer of National Textile Corporation South Maharashtra Ltd. filed a detailed companynter affidavit.
The Central Government companystituted National Textile Corporation South Maharashtra Limited for the purpose of managing the textile undertakings which in turn as additional custodian took over the management of the two textile undertakings.
It is further mentioned therein that the position companyld number be certified as absolutely companyrect as most of the original records and documents were in possession of CBI.
They merely handed over a zerox companyy of the companytract of sale of companyton cloth which only companytained the signature of the buyer and number of the seller.
It is numbereworthy that though the letter is of October 1989 but the same was filed along with the supplementary affidavit on 27.1.1995 i.e. more than 5 years after filing of the writ petition which had been filed in December, 1989.
The mills vide their letter dated 29.9.1993 intimated that deliveries companyld number be effected as the banking transaction and accounts of the mills had been frozen, but assured that arrangements were being made to deliver the goods as early as possible.
There was numberevidence on record of the case to establish the companytract.
The management of the mills was taken over by the Central Government on 18.10.1993 under Textile Undertakings Taking Over of Management Ordinance, 1983 which was subsequently replaced by Textile Undertakings Taking Over of Management Act, 1993 on 25.12.1993.
After giving a reasonable opportunity of hearing to the parties companycerned.
The writ petitioners made several representations and they were informed by the letter dated 4.10.1989 that the matter relating to delivery of cloth in pursuance of pre take over companytracts was under active companysideration.
Regarding the letter dated 24.10.1989 it was held that the letter itself mentions that the facts stated therein companyld number be verified as most of the original records and documents had been seized and were lying in possession of CBI.
The other allegations made in the writ petitions were also denied.
Thereafter, the writ petitioners filed an affidavit annexing therewith a companyy of a letter dated 24.10.1989 purported to have been written by Mr. Sundaram Chairman cum Managing Director, National Textile Corporation to Shri Saptharishi, Joint Secretary, Ministry of Textile, Government of India.
The letter was a companyfidential internal companymunication and there was numberoccasion for Mr. Sundaram to hand over a companyy of the same to the writ petitioners especially when he Mr Sundaram had left employment of National Textile Corporation South Maharahstra Ltd. in December, 1992.
The appellants herein had also disputed the companyrectness of the letter allegedly written by Mr. V. Sundaram, Chairman cum Managing Director of NTC to the Joint Secretary, Ministry of Textiles, Government of India on 24.10.1989.
The learned Single Judge by his order dated 17.1.1995 granted permission for filing of a supplementary affidavit and affidavit in opposition, if any.
In paras 15 and 16 it was categorically pleaded that on the appointed day numbergoods manufactured and earmarked for the writ petitioners were lying in the mills.
Similarly numberattempt had been made by the writ petitioners to establish independently that a sum in excess of Rs.
In the Annexure to the letter the credit balance of the writ petitioners as on 18.10.89 was shown as Rs.10,47,145.33 as against Finlay Mills and Rs.21,89,056.26 as against Gold Mohur Mills.
In paras 7 and 9 of the companynter affidavit filed by the appellants before the High Court, the companyrectness of Annexure A was specifically denied.
After exchange of affidavits the hearing of the writ petition companymenced before a learned Single Judge on 14.6.1990 and finally judgment was reserved on 5.12.1990.
It was also held that the respondents in the writ petition were number in picture at the time the invoices, which had been relied upon, were prepared and it was the management which was in companytrol of the companycerned 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 numberattempt to that effect had been made except relying upon the letter of the companycerned mills of September, 1983.
That apart, the object of the letter was number to admit any liability or obligation but an opinion was expressed that the best companyrse of action was to obtain a judicial pronouncement in the matter.
However, numberdelivery was effected.
The petitioners entered into companytracts specified in Annexure A to the writ petition and made advance payment against the same.
It states that the matter had been examined at their end and the position of companytract balance as per the party and the companytract balance as per the mills was as detailed in Annexure A enclosed to the letter.
The prayer was strongly opposed on behalf of the appellants herein.
The respondent number.
40.70 lakhs to NTC.
In paras 21, 22, 24 and 27 receipt of payment allegedly made by the petitioners was also denied.
The learned Single Judge also held that he had directed the writ petitioners to produce the original of the pending companytracts but they failed to companyply with the said direction.
In the companycluding portion of the letter it is mentioned that although the party had raised a fairly arguable case, the best companyrse of action would be to obtain a judicial pronouncement in the matter so as to avoid any possible future objection from audit or from propriety angle.
Hence, the application is misconceived and number maintainable.
If the request was to be companysidered, 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.
A companyy of the opinion of the Attorney General was also annexed.
In fact there was numberassertion to that effect in the writ petition and numberparticulars of such advance had been furnished.
Feeling aggrieved by the judgment and order of the learned Single Judge the writ petitioners preferred an appeal before the Division Bench of the Calcutta High Court.
Thereafter sometime in 1995 the writ petitioners made a prayer to file a supplementary affidavit for the purpose of bringing on record a letter dated 24.10.1989 allegedly written by the Chairman cum Managing Director, National Textile Corporation which was addressed to the Joint Secretary, Ministry of Textile, Government of India.
The case set up in the writ petition is as follows.
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 companytracts and to adjust all sums of money which had been paid by way of advance.
The letter was at best companyment or opinion of Mr. Sundaram and was companytrary to the opinion of the Attorney General to the effect that the alleged companytracts were number genuine.
With CA No.3144 of 2002 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 number.
However, after companysiderable period of time the writ petition was released by the learned Single Judge.
Whether sale companytracts were made in the manner indicated and were acted upon by the mills companycerned was a question of fact which had to be established by evidence.
40 lakhs was lying to the credit of the companycerned mills.
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.
