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CASE NO.:

Appeal (civil) 4108 of 2006

PETITIONER:

Noble Resources Ltd.

RESPONDENT:

State of Orissa & Anr.

DATE OF JUDGMENT: 13/09/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Civil) No.915 of 2005]

S.B. SINHA, J :

Leave granted.

Whether a writ petition is maintainable in contractual matter is the

core question involved in this appeal which arises out of a judgment and

order dated 14.09.2004 passed by a Division Bench of the Orissa High Court

in Civil Writ Petition No.1463 of 2004 whereby and whereunder the writ

petition filed by the Appellant herein was dismissed.

Admittedly, the parties entered into a contract in terms whereof the

Respondent No.2 herein was to supply 1,20,000 MT + / -10% each of Grade

A, Grade B and Grade C iron ore fines by September 2003. On or about

28.02.2003, the parties also agreed that the supply of full tender quantity

would be made in the sequence of C, B and A Grades iron ore fines at the

prices offered by the Appellant. Indisputably, the Appellant disclosed the

names of the parties with which it had entered into agreements to supply iron

ore fines procured from the said Respondent. There is no dispute that

supply of C-Grade iron ore fines had been made by the Respondent No.2.

Indisputably, again supply of 64,236 MT of Grade-B iron ore fines had also

been made. It is furthermore not in dispute that the Respondent No.2 offered

25,000 MT of Grade-A iron ore fines to the Appellant herein which was not

accepted.

It appears that in regard to the supplies made from March, 2003 to

September, 2003 there had been no complaint on the part of the Appellant

about any breach of contract on the part of the Respondent No.2 On

05.09.2003, a fax was sent by the Appellant requesting the laycan in the

following terms :

"After the successful completion of mv Susan S,

we now look forward to receiving the laycan for the next

shipment of Grade-B Iron Ore Fines in the month of

September.

We look forward to receiving your confirmation at

the earliest please, to enable us to nominate a suitable

vessel."

Yet again by a fax dated 09.09.2003, its request was reiterated stating

that it had signed the sale contracts with some of its long term buyers and

was looking forward for completing the balance shipments and honouring its

commitment to both Respondent No. 2 and its buyers. A request was made

by the Appellant seeking for personal intervention of the matter by the

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Chairman and Managing Director of Respondent No.2.

The Board Sub-Committee On Sales Policy of Respondent No.2,

however, by a resolution dated 22.09.2003 resolved :

"Out of the total quantity of A, B & C grade Iron

Ore fines, two C-grade and one B-grade material has

been shipped by M/s Noble Resources Ltd., Hong Kong

and another B-grade material is due to be loaded during

the current month. It was informed that there is a stock

of 60,000 MT A-grade material, 1 lakh MT B-grade

material and 2.40 lakh MT C-grade material at Daitari.

After receipt of information from L.C. and confirmed

by Company Secretary, it was decided that 60,000 MT,

A-grade material is to be shipped to M/s Noble

resources, Hong Kong even after 30.08.03 and the party

should be pursued not to insist for the balance quantity

of A-grade as it is physically not available with OMCV

and hence cannot supply the 2nd shipment of A-grade."

"Further as NINL has agreed that they will be

lifting Iron Ore Fines from October, 03 onwards, the

requirement is to be reviewed and for the time being

export sale of C-grade fines may be postponed.

Therefore, the tender auction taken by OMC Ltd. should

be cancelled invited in the News Paper and Website of

OMC Ltd. for information of all concerned. On the basis

of the above decision the tender for export sale of

1,80,000 MT of C-grade Iron Ore fines was cancelled."

The said resolution was evidently taken in view of the increase of the

rates of iron ore fines in the international market, which has gone up

manifold. Yet again the Board Committee On Sales Policy of the

Respondent No.2 decided as follows :

"i) The validity of the tender will not be extended

beyond 30.09.2003 and therefore no further

quantity shall be supplied to M/s Noble Resources

Ltd.

ii) Fresh tender may be invited for B-Grade Iron Ore

fines for one shipment and one shipment of C-

Grade. However, while doing so it must be

ensured that the quantity is available for export

after meeting the requirement of NINL."

However, despite a reminder, no action had been taken and in the

meantime another invitation of tender was published. It is not in dispute that

the Appellant also participated in the subsequent tender.

A writ petition was filed by the Appellant in the Orissa High Court.

In its first counter affidavit the Respondent No.2, inter alia, stated :

"That the Board Sub-Committee on Sales Policy

held on 8.5.2993 of OMC Ltd., decided to review the

export of Iron Ore fines on the basis of tender finalized in

January-February, 2003. Basing on the above direction

the Board of Directors in their 339th meeting held on

26.08.03 took the following decisions :

"Regarding export of A-grade Iron ore fines,

it was decided to examine if there is a penal

provision in the agreement/tender for non-

fulfillment of obligation on the part of OMC Ltd.

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It should also examine whether any legal

complicacy arises if the A variety ore will be kept

reserved for NINL. For the C-grade, Board

approved for inviting fresh Tender"

Accordingly, tender was floated for a quantity of

1,80,000/- MT +/- 10% of C-grade Iron Ore fines in all

editions of ECONOMIC TIMES on 4.9.2003. The Board

Sub-Committee on sale held on 22.09.2003 observed as

follows :

i) "Out of the total quantity of A B & C grade Iron Ore

fines, two C-grade and one B-grade material has been

shipped by M/s Noble Resources Ltd., Hong Kong

and another B-grade materials is due to be loaded

during the current month. It was informed that there

is a stock of 60,000 MT A-grade materials, 1 lakh MT

B-grade material and 2.40 lakh MT C-grade material

at Daitori. After receipt of information from L.C. and

confirmed by Company Secretary, it was decided that

60,000 MT, A-grade material is to be shipped to M/s

Noble Resources, Hong Kong even after 30.08.2003

and the party should be perused not to insist for the

balance quantity of A-grade as it is physically not

available with OMC and hence cannot supply the 2nd

shipment of A-grade"

ii) "Further as NINL has agreed that they will be lifting

Iron Ore fines from October 03 onwards, the

requirement is to be reviewed and for the time being

export sale of C-grade fines may be postponed.

Therefore, the tender auction taken by OMC Ltd.,

should be cancelled invited in the News Paper and

Website of OMC Ltd. for information of all

concerned. On the basis of the above decision the

tender for export sale of 1,80,000 MT of C-grade Iron

Ore fines was cancelled.

11. That this matter was further referred to

Board Committee on sales Policy held on 24.10.2003.

The Committee decided as follows :

i) The validity of the tender will not be extended beyond

30.09.2003 and therefore no further quantity shall be

supplied to M/s Noble Resources Ltd.

ii) Fresh tender may be invited for B-grade Iron Ore

fines for one shipment and one shipment of C-grade.

However, while doing so it must be ensured that the

quantity is available for export after meeting the

requirement of NINL."

However, somehow a different stand was taken by the Respondent

No.2 in its additional counter affidavit as it assigned the following reasons

for its ability to supply iron ore fines, stating :

"A) The primary crusher at Daitari which was an old

plant got break down during the contractual period

and the spares were not available in India for

immediate repair. As a result production of "A" &

"B" grade iron ore got affected.

B) The working permission issued by the Government

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of India, Ministry of Environment and Forest

expired on 13.03.2003 and the same was issued

afresh by Government of India only on 9.4.2003,

during which period there could not be any

production.

C) Production of "A" grade Ore was to be made by

Selective Mining which could not be possible due

to restrictions imposed by the Director General

Mines, Safety, Government of India.

D) Railway Rakes were not available for

transportation of Iron Ore Fines from Daitari to

Paradip, despite persuasion of OMC with the

Railway Authorities.

Further, during the said contractual period OMC

has not sold iron ore of any grade to any party other than

to M/s. Neelachal Ispat Nigam Ltd., which is wholly

Government owned undertaking with which Government

of Orissa and OMC has a long term understanding for

supply of iron Ore to sustain the steel plant of NINL."

By reason of the impugned judgment, a Division Bench of the Orissa

High Court dismissed the writ petition, inter alia, opining that it involved

enforcement of a contract qua contract and thus not maintainable.

Mr. Ashok Desai, the learned Senior Counsel appearing on behalf of

the Appellant, would submit :

(i) When a State-owned monopoly acts unfairly and unjustly, the

action being violative of the equality clause contained in Article 14 of the

Constitution of India; a writ petition would be maintainable;

(ii) A contract of supply should not be terminated on the premise that

the price of the commodity has gone up in the international market which

cannot be said to be either reasonable or bona fide;

(iii) The Respondent No.2 having taken two different stands before

the High Court, arbitrariness and unreasonable on its part was self-evident;

(iv) The High Court committed a manifest error insofar as it failed to

take into consideration that a monopoly concern should be directed to

honour its contractual obligations in view of the decision of this Court in

ABL International Ltd. and Another v. Export Credit Guarantee

Corporation of India Ltd. and Others [(2004) 3 SCC 553];

(v) Remedies available in a suit per se cannot be a ground to refuse

relief under Article 226 of the Constitution of India.

Dr. Rajeev Dhawan, the learned Senior Counsel appearing on behalf

of the Respondent, on the other hand, would submit that :

(i) The Appellant itself having shown its inability to lift iron ore fines

in accordance with the schedule and there being no complaint in respect of

supplies made from March to September, the writ jurisdiction of the High

Court under Article 226 of the Constitution of India could not be invoked;

(ii) The writ petition having been filed only having regard to the

escalating prices, the High Court rightly refused to exercise its discretionary

jurisdiction;

(iii) The main plea raised by the Appellant being applicability of the

doctrine of promissory estoppel which having no application in contractual

matters, the writ petition was not maintainable;

(iv) A writ petition involving disputed questions of fact would not

ordinarily lie and in that view of the mater the High Court rightly refused to

exercise its extra ordinary jurisdiction;

(v) When a decision is taken for business purposes, the courts should

not readily infer arbitrariness on the part of the State; and

(vi) In any event, a writ petition for specific performance of contract

would not lie when damages can be awarded for breach of contract.

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The Respondent No.2 is a 'State' within the meaning of Article 12 of

the Constitution of India. Its conduct in all fields including a contract is

expected to be fair and reasonable. It was not supposed to act arbitrarily,

capriciously or whimsically.

It is trite that if an action on the part of the State is violative the

equality clause contained in Article 14 of the Constitution of India, a writ

petition would be maintainable even in the contractual field. A distinction

indisputably must be made between a matter which is at the threshold of a

contract and a breach of contract; whereas in the former the court's scrutiny

would be more intrusive, in the latter the court may not ordinarily exercise

its discretionary jurisdiction of judicial review, unless it is found to be

violative of Article 14 of the Constitution. While exercising contractual

powers also, the government bodies may be subjected to judicial review in

order to prevent arbitrariness or favouritism on its part. Indisputably,

inherent limitations exist, but it would not be correct to opine that under no

circumstances a writ will lie only because it involves a contractual matter.

This dicta of law was laid down by this Court as far back in1977,

wherein this Court in Radhakrishna Agarwal and Others v. State of Bihar

and Others [(1977) 3 SCC 457] accepted the division of types of cases

made by the Patna High Court in which breaches of alleged obligation by

the State or its agents could be set up. It read as under :

"(i) Where a petitioner makes a grievance of breach

of promise on the part of the State in cases where on

assurance or promise made by the State he has acted to

his prejudice and predicament, but the agreement is short

of a contract within the meaning of Article 299 of the

Constitution;

(ii) Where the contract entered into between the

person aggrieved and the State is in exercise of a

statutory power under certain Act or Rules framed

thereunder and the petitioner alleges a breach on the part

of the State; and

(iii) Where the contract entered into between the State

and the person aggrieved is non-statutory and purely

contractual and the rights and liabilities of the parties are

governed by the terms of the contract, and the petitioner

complains about breach of such contract by the State."

It was further observed :

"In the cases before us, allegations on which a

violation of Article 14 could be based are neither

properly made nor established. Before any adjudication

on the question whether Article 14 of the Constitution

could possibly be said to have been violated, as between

persons governed by similar contracts, they must be

properly put in issue and established. Even if the

appellants could be said to have raised any aspect of

Article 14 of the Constitution and this Article could at all

be held to operate within the contractual field whenever

the State enters into such contracts, which we gravely

doubt, such questions of fact do not appear to have been

argued before the High Court. And, in any event, they are

of such a nature that they cannot be satisfactorily decided

without a detailed adduction of evidence, which is only

possible in ordinary civil suits, to establish that the State,

acting in its executive capacity through its officers, has

discriminated between parties identically situated. On the

allegations and affidavit evidence before us we cannot

reach such a conclusion. Moreover, as we have already

indicated earlier, the correct view is that it is the contract

and not the executive power, regulated by the

Constitution, which governs the relations of the parties

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on facts apparent in the cases before us."

It may, however, be true that where serious disputed questions of fact

are raised requiring appreciation of evidence, and, thus, for determination

thereof, examination of witnesses would be necessary; it may not be

convenient to decide the dispute in a proceeding under Article 226 of the

Constitution of India.

On a conspectus of several decisions, a Division Bench of this Court

in ABL International Ltd. (supra) opined that such a writ petition would be

maintainable even if it involves some disputed questions of fact. It was

stated that no decision lays down an absolute rule that in all cases involving

disputes questions of facts, the party should be relegated to a civil court.

In Mahabir Auto Stores & Others v. Indian Oil Corporation and

Others [(1990) 3 SCC 752], this Court observed :

"\005It appears to us that rule of reason and rule against

arbitrariness and discrimination, rules of fair play and

natural justice are part of the rule of law applicable in

situation or action by State instrumentality in dealing

with citizens in a situation like the present one. Even

though the rights of the citizens are in the nature of

contractual rights, the manner, the method and motive of

a decision of entering or not entering into a contract, are

subject to judicial review on the touchstone of relevance

and reasonableness, fair play, natural justice, equality and

non-discrimination in the type of the transactions and

nature of the dealing as in the present case."

In State of Uttar Pradesh and Others v. Vijay Bahadur Singh and

Others [(1982) 2 SCC 365], a Division Bench of this Court held that the

Government cannot be denied to exercise its discretionary power provided

the same is not arbitrary.

Interplay between writ jurisdiction and contractual disputes has given

rise to a plethora of decisions by this Court. See for example M/s

Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay

[(1989) 3 SCC 293] and Mahabir Auto Stores (supra).

In Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai

and Another [(2004) 3 SCC 214], this Court stated :

"The position of law is settled that the State and its

authorities including instrumentalities of States have to

be just, fair and reasonable in all their activities including

those in the field of contracts. Even while playing the

role of a landlord or a tenant, the State and its authorities

remain so and cannot be heard or seen causing

displeasure or discomfort to Article 14 of the

Constitution of India.

It is common knowledge that several rent control

legislations exist spread around the country, the

emergence whereof was witnessed by the post-World

War scarcity of accommodation. Often these legislations

exempt from their applicability the properties owned by

the Government, semi-government or public bodies,

Government-owned corporations, trusts and other

instrumentalities of State\005"

Non statutory contracts have, however, been treated differently. [See

Bareilly Development Authority and Another v. Ajai Pal Singh and Others

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[(1989) 2 SCC 116].

A distinction is also made between performance of a statutory duty

and/or dealing of a public matter by a State and its commercial activities.

[See Indian Oil Corporation Ltd. v. Amritsar Gas Service and Others

(1991) 1 SCC 533] and L.I.C. of India v. Escort Ltd. [(1986) 1 SCC 264].

In ABL International Ltd. (supra), this Court opined that on a given

set of facts, if a State acts in an arbitrary manner even in a matter of contract,

a writ petition would be maintainable. It was opined :

"It is clear from the above observations of this Court,

once the State or an instrumentality of the State is a party

of the contract, it has an obligation in law to act fairly,

justly and reasonably which is the requirement of Article

14 of the Constitution of India. Therefore, if by the

impugned repudiation of the claim of the appellants the

first respondent as an instrumentality of the State has

acted in contravention of the abovesaid requirement of

Article 14, then we have no hesitation in holding that a

writ court can issue suitable directions to set right the

arbitrary actions of the first respondent\005"

Contractual matters are, thus, not beyond the realm of judicial review.

Its application may, however, be limited.

Although terms of the invitation to tender may not be open to judicial

scrutiny, but the courts can scrutinize the award of contract by the

Government or its agencies in exercise of their power of judicial review to

prevent arbitrariness or favouritism. [See Directorate of Education and

Others v. Educomp Datamatics Ltd. and Others (2004) 4 SCC 19].

However, the court may refuse to exercise its jurisdiction, if it does not

involve any public interest.

Although the scope of judicial review or the development of law in

this field has been noticed hereinbefore particularly in the light of the

decision of this Court in ABL International Ltd. (supra), each case, however,

must be decided on its own facts. Public interest as noticed hereinbefore,

may be one of the factors to exercise power of judicial review. In a case

where a public law element is involved, judicial review may be permissible.

[See Binny Ltd. and Another v. V. Sadasivan and Others [(2005) 6 SCC

657] and G.B. Mahajan and Others v. Jalgaon Municipal Council and Others

[(1991) 3 SCC 91].

In State of U.P and Another. v. Johri Mal [(2004) 4 SCC 714], it

was held :

"It is well settled that while exercising the power of

judicial review the court is more concerned with the

decision-making process than the merit of the decision

itself. In doing so, it is often argued by the defender of an

impugned decision that the court is not competent to

exercise its power when there are serious disputed

questions of facts; when the decision of the Tribunal or

the decision of the fact-finding body or the arbitrator is

given finality by the statute which governs a given

situation or which, by nature of the activity the decision-

maker's opinion on facts is final. But while examining

and scrutinising the decision-making process it becomes

inevitable to also appreciate the facts of a given case as

otherwise the decision cannot be tested under the grounds

of illegality, irrationality or procedural impropriety. How

far the court of judicial review can reappreciate the

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findings of facts depends on the ground of judicial

review. For example, if a decision is challenged as

irrational, it would be well-nigh impossible to record a

finding whether a decision is rational or irrational

without first evaluating the facts of the case and coming

to a plausible conclusion and then testing the decision of

the authority on the touchstone of the tests laid down by

the court with special reference to a given case. This

position is well settled in the Indian administrative law.

Therefore, to a limited extent of scrutinising the decision-

making process, it is always open to the court to review

the evaluation of facts by the decision-maker."

Another field where judicial review is permissible would be when

mala fide or ulterior motives is attributed. In Asia Foundation and

Construction Ltd. v. Trafalgar House Construction India Ltd. and Others

[(1997) 1 SCC 738], this Court held :

"\005We are of the considered opinion that it was not within

the permissible limits of interference for a court of law,

particularly when there has been no allegation of malice or

ulterior motive and particularly when the court has not

found any mala fides or favouritism in the grant of

contract in favour of the appellant\005"

It was further held :

"Therefore, though the principle of judicial review

cannot be denied so far as exercise of contractual powers

of government bodies are concerned, but it is intended to

prevent arbitrariness or favouritism and it is exercised in

the larger public interest or if it is brought to the notice of

the court that in the matter of award of a contract power

has been exercised for any collateral purpose. But on

examining the facts and circumstances of the present case

and on going through the records we are of the

considered opinion that none of the criteria has been

satisfied justifying Court's interference in the grant of

contract in favour of the appellant\005"

We, however, having regard to ABL International Ltd (supra), do not

accept Dr. Dhawan's contention that only because there exists a disputed

question of fact or an alternative remedy is available, the same by itself

would be sufficient for the High Court to decline its jurisdiction.

The case at hand may be considered having regard to the

aforementioned legal principles in mind. The parties indisputably were

bound by the terms of the contract.

For determining the dispute; conduct of the Appellant was also

relevant. Indisputably, the Respondent No.2 in its letter dated 28.02.2003

offered consignment of 25,000 MT of iron ore fines. It did not lift the same

on the ground that a small load would be unacceptable. On 13.05.2003, it

lifted the quantity of 46,280 MT of iron ore fines, although the said quantity

would also be small load. Although the consignment was to be on monthly

basis, it had been rescheduled.

In the writ petition it was averred :

"Referring to the present stock of 25,000 MT of A Grade

iron ore referred to in the letter of acceptance of Opposite

Party No.2, the Petitioner stated it was not viable to ship

a parcel of 25,000/- MT of iron ore on its own and that it

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would need a minimum parcel of 60,000 MT. Given the

tight vessel situation on the east coast and especially in

the Halia/Paradip area, the Petitioner stated that it would

be advisable for both the Opposite Party No.2 and the

Petitioner to plan the first ship in early April\005"

The monthly schedule of shipment evidently was altered. We have

also noticed hereinbefore that there had been no complaint on the part of the

Appellant in regard to the supply of iron ore fines till August, 2003, by

which time 1,08,181 MT of iron ore fines was supplied in two installments.

In the month of September 60,000 MT of Grade-B iron ore and 1,20,000 MT

of Grade-A iron was to be supplied. According to the Respondent No. 2,

however, such quantity was not possible in adherence of the schedule. We

have noticed hereinbefore that in its additional affidavit before the High

Court, the Respondent No.2 has not assigned any reason which can be said

to be contrary to its earlier stand. Some more reasons have been assigned in

regard to its inability to supply iron ore fines. It its Counter Affidavit, the

Respondent No.2 stated :

"That to sum up as per tender norms of the tender floated

during February, 2003, the price and quantity was valid

till end of September 2003 as there was constraint in

convergence of ore by rake from Daitari to Pradip, the

buyer was intimated by OMC Ltd., to conclude the

contract on shipment to shipment basis. OMC would

have concluded the contract for the entire tender quantity

in one lot with M/s Noble Resources Ltd. Hong Kong

had there been no constraint for convergence of cargo to

Paradip\005if the balance quantity against the tender norms

would have been supplied to the petitioner company at

the tendered prices of February, 2003 the Corporation

would have incurred huge loss as the price of iron ore in

the International Market has increased manifold."

We may herein notice a statement on tenders floated and accepted in

respect of the iron ore fines after 30.09.2003, which is as under :

"

DATE OF

TENDER

OPENING

QUALITY OF

IRON ORE

FINES

QUANTITY

HIGHEST

PRICE

Quoted Price in

by USD/DMT

PRICE

QUOTED

BY

NOBLE

USD/D

MT

SEE PRICE

IN

TENDER

AT P.50

12.11.03

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B-Grade-60,000

MT +- 10%

C, Grade-

60,000 MT+-

10%

M/s Burwill

Hong Kong

M/s Burwill

Hong Kong

47.10

45.10

31.75

29.25

14.96

13.86

03.02.04

C-Grade-

1.20,000 MT +-

10%

Sudamin

Metal,

London

63.30

59.80

13.86

20.03.04

C-Grade-

1,20,000 MT +-

10%

VISA

Comtrade,

AG,

Switzerland

75.06

62.68

13.86

22.06.04

C-Grade-

1,20,,000 MT +-

10%

Noble

Resources,

Hong Kong

25.70

25.70

13.86

07.09.04

C-Grade-60,000

MT +- 10%

IMR

Resources,

Hong Kong

46.35

44.68

13.86

22.11.04

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C-Grade-

1,20,000 MT +-

10%

Noble

Resources,

Hong Kong

40.18

40.18

13.86

24.01.05

C-Grade-60,000

MT +- 10%

Noble

Resources,

Hong Kong

53.08

53.08

13.86

15.03.05

C-Grade-60,000

MT +- 10%

IMR

Metallurgical

Resources

AG,

Switzerland

58.10

54.00

13.86

"

The Appellant evidently participated in subsequent tenders. It became

successful in some of them. It did not raise any protest. It took part in the

said process without any demur.

We have noticed hereinbefore that the price of iron ore fines in the

international market varied from time to time. After September, 2003, a tender

was issued. The Appellant took part in the said tender. Its tender was accepted in

relation to Grade-C iron ore fines. Its offers on 22.06.2004, 22.11.2004 and

24.01.2005 had also been accepted.

The table quoted hereinbefore also points out that the Appellant had

also understood the implication of phenomenal rise in price in the

international market.

We may at this juncture furthermore notice that the contractual terms

came to an end in September, 2003. It participated in the bids of prices

much higher than the contractual prices during the period 12.11.2003 and

03.02.2004. The stand of the Respondents that only having regard to the

fact that there had been increase in the prices, the Appellant filed a writ

petition only in February, 2004, cannot be said to be wholly misconceived.

The submission of Mr. Desai that rise in international price would not

by itself be a relevant consideration to rescind the contract may be correct,

but then the same was not the sole ground for the Respondent No.2 to refuse

to supply iron ore fines to the Appellants.

Moreover, certain serious disputed questions of fact have arisen for

determination. Such disputed questions of facts ordinarily could not have

been entertained by the High Court in exercise of its power of judicial

review.

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Ordinarily, a specific performance of contract would not be enforced

by issuing a writ of or in the nature of mandamus, particularly when

keeping in view the provisions of the Specific Relief Act, 1963 damages

may be an adequate remedy for breach of contract.

The questions as to whether OMC had the available stock of iron ore

fines or the only ground to refuse supply thereof was the rise in international

prices, are matters which could not have been fully and effectively

adjudicated in the writ proceedings. It was difficult for the High to go into

the other questions which have been raised before us by the Appellant,

namely, the effect of the purported decision of OMC to offer to the

Appellant 60,000 MT of 'A' Grade iron ore fines provided the Appellant

gave up all other contractual rights which stating the bad faith on the part of

OMC. We may, however, notice that although a decision had allegedly

been taken by OMC not to supply iron ore fines prior to the expiry of the

contractual period, but the same had not been communicated. Its effect has

to be determined keeping in view the fact as to whether the Appellant

suffered any loss thereby. The reasons for non-supply, we may reiterate,

may constitute a breach of contract but having regard to the conduct of the

parties, it cannot be said that the same was so arbitrary so as to attract the

wrath of Article 14 of the Constitution of India. Before us also what has

been emphasized is the purported breaches of contract by the Respondent. A

contention has also been raised by Mr. Desai that keeping in view the facts

and circumstances of this case, this Court should mould the relief. We do

not intend to do so and leave the parties to raise all contentions before an

appropriate forum.

For the reasons aforementioned, we are of the opinion that although

the approach of the High Court was not entirely correct, its ultimate decision

to refuse to exercise its discretionary jurisdiction cannot be faulted with.

The appeal is, therefore, dismissed. We, however, leave it open to the

Appellant to take recourse to the other remedy which is available in law. In

the facts and circumstances of the case, there shall be no order as to costs.