CASE NO.: Appeal (civil) 3142-43 of 2002 PETITIONER: National Textile Corpn. Ltd. & Ors. RESPONDENT: M/s Haribox Swalram & Ors. DATE OF JUDGMENT: 05/04/2004 BENCH: S. Rajendra Babu & G.P. Mathur. JUDGMENT:
JUDGMENT
(With CA No.3144 of 2002)
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 pursuant to
the contracts 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. A further prayer was made that the appellants
herein be directed to take a final decision as envisaged in the letter dated
24.10.1989 (Annexure A to the writ petition) and an injunction be issued
restraining the appellants from transferring, dealing with or disposing of
goods pursuant to the contracts mentioned in Annexure-A in any manner
without keeping the goods which are to be supplied to writ petitioner no.1.
3. The case set up in the writ petition is as follows. The writ petitioners
had been purchasing various quantities of cloth from Finlay Mills Limited
and Gold Mohur Mills Limited, both situate in Bombay. The petitioners
entered into contracts specified in Annexure-A to the writ petition and made
advance payment against the same. The concerned mills supplied and
delivered the goods to the petitioners from time to time but a substantial part
of the contract remained unexecuted. 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. The mills vide their
letter dated 29.9.1993 intimated that deliveries could not 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.
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. The Central
Government constituted 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. The writ petitioners, thereafter approached the appellants for
release of the goods and one bale of contractual specification was delivered
but 12 bales were detained by the Excise Authorities, as a consequence
whereof the same were not delivered. 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 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 towards any of invoice
of packed material and as such could not 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 no
invoices against which payments were received from the petitioners prior to
take over and as such the question of effecting delivery of paid stocks did
not arise. 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 contracts was under active consideration.
However, no delivery was effected. The writ petition was thereafter filed in
December, 1989 seeking the reliefs mentioned in the earlier part of the
judgment.
4. The writ petition was contested on behalf of the appellants herein and
the Principal Officer of National Textile Corporation (South Maharashtra)
Ltd. filed a detailed counter-affidavit. Certain pleas taken in para 3 of the
counter affidavit have an important bearing and therefore the same is being
reproduced below:
“Para3. At the outset I state as follows :-
a) The writ petition being directed to obtain specific
performance of the disputed contracts and further
claiming a decree for the same which can and should be
obtained by filing a regular suit, further the same being
concerned with very many disputed questions of facts,
this application to by pass the said usual procedure of suit
is not maintainable and ought to be dismissed on that
ground.
b) The contract in question admittedly having been entered
into at Bombay, with companies situate at Bombay,
relating to goods to be delivered from Bombay and the
payment in respect thereof were required to be made at
Bombay and some part whereof having in fact been paid
at Bombay, the entirety of the cause of action being the
subject matter of the writ petition had arisen, if at all,
within the jurisdiction of the Bombay High Court.
Accordingly the instant writ petition seeking to enforce
such cause of action which has arisen wholly outside the
said jurisdiction is not enforceable at the High Court at
Calcutta, neither the High Court of Calcutta has
jurisdiction over the same. Hence, the application is
misconceived and not maintainable.
c) Admittedly, the cause of 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 as alleged by the
writ petitioners. It was further pleaded that the respondents under the
provisions of the Act were not liable to deliver any further goods under any
alleged contract for the pre-take over period in respect whereof no title had
passed on to the writ petitioners. It was specifically denied that other
dealers, similarly situate, had been delivered any goods in respect of pre-take
over contracts and a uniform principle was adopted in this regard. No
invoices had been raised in respect of any alleged balance goods of a pre-
take over period. It was also pleaded that the payments, if any, alleged to
have been made by the writ petitioners were in fact made to the erstwhile
company and the writ petitioners were at liberty to recover the same from
them but the respondents were not liable to pay back any amount or to
deliver any goods. It was also asserted that the respondents had been
discharged of every liability of any kind for the pre-take over period. The
other allegations made in the writ petitions were also denied.
5. After exchange of affidavits the hearing of the writ petition
commenced before a learned Single Judge on 14.6.1990 and finally
judgment was reserved on 5.12.1990. However, after considerable period of
time the writ petition was released by the learned Single Judge. 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 prayer was strongly opposed on behalf of the
appellants herein. 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. Thereafter, the writ petitioners filed an affidavit annexing
therewith a copy 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 makes a reference to the representation
made by the writ petitioners and two other firms regarding delivery of cotton
fabrics by Finlay Mills and Gold Mohur Mills against pre-take over
contracts. It states that the matter had 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 be to obtain a judicial pronouncement in the
matter so as to avoid any possible future objection from audit or from
propriety angle. 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.
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. The letter was
a confidential internal communication and there was no occasion for Mr.
Sundaram to hand over a copy 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 letter was at
best comment or opinion of Mr. Sundaram and was contrary to the opinion
of the Attorney-General to the effect that the alleged contracts were not
genuine. A copy of the opinion of the Attorney-General was also annexed.
It was also pleaded that the Government of India had not accepted the
alleged claim of the writ petitioners and had in fact launched prosecution
against the Principal Officer of respondent no.4 for giving delivery of stocks
to several parties after the date of taking over. It was further pleaded that the
letter cannot be taken as an admission of the alleged claim of the writ
petitioners under any circumstances.
7. The learned Single Judge held that the contract sought to be relied
upon by the writ petitioners was doubtful as it did not signify the assent of
the concerned mills. Whether sale contracts were made in the manner
indicated and were acted upon by the mills concerned was a question of fact
which had to be established by evidence. There was no evidence on record
of the case to establish the contract. Similarly no attempt had been made by
the writ petitioners to establish independently that a sum in excess of Rs. 40
lakhs was lying to the credit of the concerned mills. In fact there was no
assertion to that effect in the writ petition and no particulars of such
advance had been furnished. It was also held that the respondents in the writ
petition were not in picture at the time the invoices, which had been relied
upon, were prepared and it 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 was taken
to be that of a civil suit, the writ petition was barred by limitation. The
learned Judge then considered in detail the effect of sub-section (7) of
section 3, and sections 6 and 11 and other provisions of the Act and held that
all contracts relating to the management of the business and all contracts
relating to the management of the affairs of the Textile Undertaking stood
terminated on the appointed day and consequently the Central Government
or the Custodian were neither obliged to discharge the contractual
obligations by effecting deliveries, nor they were obliged to give any
adjustments of the advances said to have been made. Regarding the letter
dated 24.10.1989 it was held that the letter itself mentions that the facts
stated therein could not be verified as most of the original records and
documents had been seized and were lying in possession of CBI. That apart,
the object of the letter was not to admit any liability or obligation but an
opinion was expressed that the best course of action was to obtain a judicial
pronouncement in the matter. Finally, the learned Single Judge held that the
entire cause of action accrued in Bombay and therefore the High Court of
Calcutta had no jurisdiction to entertain the writ petition. On these findings
the writ petition was dismissed.
8. 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. The Division Bench held that Calcutta High Court
had the jurisdiction to hear the matter as part of cause of action accrued
there. On merits it was held that ordinarily a writ of mandamus cannot be
issued for specific performance of a contract yet there is no absolute bar in
doing so. The Bench went on to hold that whether in fact there existed any
contract or not would be a question of fact and having regard to the fact that
the State has a statutory duty to perform the contract the appeal was disposed
of with the following direction:
“In a situation of this nature, we are of the opinion
that interest of justice would be subserved if the present
incumbent of the post of Chairman-cum-Managing
Director gives an opportunity of hearing to the
petitioners and try to sort out the differences before the
parties across the table. We do not intend to go into the
merit of the matter so as to arrive at a finding 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 on business at Calcutta,
the letters were sent by them from Calcutta and replies to the same had also
been received by them at Calcutta and therefore part of cause of action had
accrued in the State of West Bengal and consequently the view taken by the
Division Bench of the High Court that it had jurisdiction to entertain the writ
petition was perfectly correctly.
10. Under Clause (2) of Article 226 of the Constitution, the High Court is
empowered to issue writs, orders or directions to any Government, authority
or person exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories. Cause of action as
understood in the civil proceedings means every fact which, if traversed, it
would be necessary for the plaintiff to prove in order to support his right to a
judgment of the Court. To put it in a different way, it is bundle of facts
which taken with law applicable to them, gives the plaintiff a right to relief
against the defendant. In Union of India v. Adani Exports Ltd. AIR 2002 SC
126 in the context of clause (2) of Article 226 of the Constitution, it has been
explained that each and every fact pleaded in the writ petition does not ipso
facto lead to the conclusion that those facts give rise to a cause of action
within the Court’s territorial jurisdiction unless those facts pleaded are such
which have a nexus or relevance with the lis that is involved in the case.
Facts which have no bearing with the lis or dispute involved in the case, do
not give rise to a cause of action so as to confer territorial jurisdiction on the
Court concerned. A similar question was examined in State of Rajasthan v.
M/s Swaika Properties AIR 1985 SC 1289. Here certain properties
belonging to a company which had its registered office in Calcutta were
sought to be acquired in Jaipur and a notice under Section 52 of the
Rajasthan Urban Improvement Act was served upon the company at
Calcutta. The question which arose for consideration was whether the
service of notice at the head office of the company at Calcutta could give
rise to a cause of action within the State of West Bengal to enable the
Calcutta High Court to exercise jurisdiction in a matter where challenge to
acquisition 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
jurisdiction on the ground that the writ petitioner resides in or carries on
business from a registered office in the State of West Bengal.
12. In the present case, the textile mills are situate in Bombay and the
supply of cloth was to be made by them ex-factory at Bombay. According
to the writ petitioners, the money was paid to the mills at Bombay. The
learned Single Judge after a detailed discussion of the matter held that the
Calcutta High Court had no jurisdiction to entertain the writ petition. The
Division Bench has reversed this finding on the ground that concluded
contract had come into existence which could be cancelled only after giving
an opportunity of hearing and consequently the question of revocation of the
contract at its Calcutta address would constitute a cause of action. In our
opinion, the view taken by the Division Bench is wholly erroneous in law.
It was nowhere pleaded in the writ petition that the appellant herein had
initiated any action under Section 11 of the Act by issuing any notice to the
writ petitioner for cancellation of the contract. In fact, it is stated in para 18
of the petition that the Central Government did not follow the procedure
prescribed in Section 11 for cancellation of contract. Regarding the
jurisdiction of the Calcutta High Court, the relevant statement was made in
para 73 of the writ petition wherein it was stated as under :
“73. Your petitioner carries on business and maintains all
accounts at the aforesaid place of business within the
jurisdiction. Your petitioner states that by reason of the
aforesaid, your petitioners have suffered loss and damage at its
said place of business within the jurisdiction. All notices and
correspondences referred to herein-above addressed to your
petitioner has been received by your petitioner at your
petitioner’s place of business within the jurisdiction. In the
circumstances this Hon’ble Court has the jurisdiction to
entertain the present application.”
As discussed earlier, the mere fact that the writ petitioner carries on
business at Calcutta or that the reply to the correspondence made by it was
received at Calcutta is not an integral part of the cause of action and,
therefore, the Calcutta High Court had no jurisdiction to entertain the writ
petition and the view to the contrary taken by the Division Bench cannot be
sustained. In view of the above finding, the writ 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 Maharashtra) Ltd. 1996 (1) SCC 313
where the question of payment of gratuity of a workman who left the
employment just a few months before “the appointed day” came up for
consideration. It was held that the language of sub-section (7) of Section 3
is clear and unambiguous inasmuch as in the said provision it has been
declared that any liability incurred by the textile company in relation to the
textile undertaking before the appointed day shall be enforceable against the
textile company concerned and not against the Central Government or the
Custodian. It was also held that the words “any liability” in sub-section (7)
of Section 3 are of wide amplitude to cover every liability that was incurred
by the textile company in relation to the textile undertaking before the
appointed day. The Court thus rejected the contention that sub-section (7) of
Section 3 must be so construed as to exclude its applicability in respect of
liability for payment of gratuity under the Payment of Gratuity Act. The
Court also examined the provisions of the Textile Undertakings
(Nationalisation) Ordinance, 1995 (Ordinance No.6 of 1995) which was later
on replaced by the Textile Undertakings (Nationalisation) Act, 1995) and
held as under :
“The provisions of Ordinance 6 of 1995 also show that
the liabilities for the period prior to the take-over of the
management are to be discharged from the amount payable to
the owner of the textile undertaking for the acquisition of the
undertaking and not by the NTC. It is, therefore, not possible
to uphold the contention urged on behalf of the appellant that
NTC is liable in respect of the gratuity amount payable under
the Payment of Gratuity Act to Respondent 2.”
14. The legal position is, therefore, absolutely clear that any liability
incurred by a textile company in relation to the textile undertaking before the
appointed day cannot be enforced against the Central Government or the
Custodian. According to the case set up by the writ petitioners, money was
paid by them to the two textile mills before the appointed day but they had
failed to supply the cloth. Assuming the aforesaid position to be correct,
after receipt of money, the textile mills having incurred a liability, were under
an obligation to supply the cloth to the writ petitioners. On the facts
pleaded, the liability had been incurred by the textile company and
consequently it could 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 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. It is noteworthy 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. Mr. Sundaram had left the employment in 1992. As the
letter shows, it was an internal correspondence between the Chairman of
National Textile Corporation and Joint Secretary, Ministry of Textiles,
Government of India. The letter does not show that its copy was sent to
anyone else much less to the writ petitioners. In para 4 of the supplementary
affidavit filed by Mahender Kumar Goenka, it was stated that on his request
Mr. Sundaram was kind enough to hand over a copy of the said letter dated
24.10.1989 to the petitioner. It is extremely difficult to believe that though
Mr. Sundaram left the employment in 1992, but he was keeping a copy of the
said letter with him and handed over the same to Shri Goenka in 1995. Shri
Sundaram, who was an IAS Officer holding a very responsible post of
Chairman-cum-Managing Director of National Textile Corporation, is not
expected to keep private copies of official documents nor to hand over the
same to a private party. We are, therefore of the opinion that the view taken
by the learned Single Judge that the said document is of extremely suspicious
character and could not be taken into consideration is perfectly correct.
17. We are also in agreement with the view taken by the learned Single
Judge that the writ petition which was filed in December 1989 was highly
belated as the claim of the writ petitioners had been categorically refuted by
the letter dated 7.11.1990 by the Director Finance on behalf of National
Textile Corporation (South Maharashtra). The petition was therefore liable to
be rejected on this ground alone. That apart, the prayer made in the writ
petition is for issuance of a writ of mandamus directing the appellant herein
to supply the goods (cloth). It is well settled that in order that a mandamus be
issued to compel the authorities 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.
18. For the reasons mentioned above, we are of the opinion that the writ
petition filed by the respondent herein was wholly devoid of merit and the
same was rightly dismissed by the learned Single Judge of the High Court.
The appeal is accordingly allowed. The judgment and order of the Division
Bench of the Calcutta High Court dated 4.8.2000 is set aside and that of the
learned Single Judge restored. The appellant will be entitled to their cost
here as well as in the High Court.