S/o.G. Venkata Narayana Rao. vs The Union of India, rep. by its

Petition under Section '1 51 CPC praying that in the cirr; rmstances stated in the affidavit filed in support of the petition, the High court ma,r :e pleased to direct the parties herein to present all the claims before the Arbirr rtor appointed vide order dated 28.03.2025 in Arb.Appl. No. 4s of 2025 by reccr ling the consent of the Respondents for the same and pass such other order or I ders Counsel for the Appellant: SRI A. VENKATESH, SR. COUNS;t L REp. FOR SRI PILLIX LAW FIRM Counsel forthe Respondent No.1 to 5: SRI N. BHUJANGA Ft rO, Deputy Solicitor Ger rral of lndia Counsel for the Respondent No.6: - - - - The Court delivered the following: JUDGMENT --- Page 1of 12 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO Writ Appeal No.743 of 2022 Date of Judsment ,16.tz.zozs BETWEEN: M/ s.G.V.V. Constructions Pvt. Ltd., a Private Limited Company registered under the Companies Act, 1956, having its registered ofhce at #358, Shaheed Nagar, Bhubaneswar (Odisha State), & Corporate Office at l2-I2-loa5/59, Road No. 11, Sai Nagar Colony, Tarnaka, Secunderabad - 5O0 017, Rep. by its Managing Director, Sri G. Vishnu Vardhan Rao, S/o.G. Venkata Narayana Rao. Vs The Union of India, rep. by its Se cretary, Ministry of Railways, New Delhi, and 5 others Appellant Re spondents JUDGMENT: (per Hon'ble Srt Justice P.SAM KOSHY) The instart Writ Appeal has been filed by the appellant under Clause 15 of Letters Patent Act assarling the order dated i8.lO.2O22 in Writ Petition No.27246 ot 2022 passed by a learned Single Judge of this Court (for short, ,the impugned order'), arr aggrieved only by the operative portion of the order passed by the lr,, rrned Single Judge insofar as upholding the notice of termination oi rontract issued br. respondent No.3, dated 1O.06.2022. -

2. Heard Mr.A. Venkatesh, learned Senior C r rnsel representing M/s.Pillix Law Firm, for the appellant; and Mr.B. I arasimha Sharma, learned Additional Solicitor General of India, apF)( a,ng on behalf of Mr. Bhujanga Rao, learned Deputy solicitor Genr r al or India, for the respondents.

3. The brief facts necessary for adjudication ot thc instant appeal are that the appellant herein had preferred eL writ retition before this court, viz , writ petition No.27246 0f 2022, seekir g for the foliowin., relief, viz., " 79, It is therefore praAed that this Hon,bl: Couft maA I)e pleased fo r.ssue ang appropiate uit, ord.er or r,trec.tion more particularly one in the nature of Wit of Mandamu: tTeclctirtg tl.te action of the 3'd respondent herein in issuing tert rnation notice Vide No.W.Con.148/A/427i/GNT_GTL/EWR-ilr,ot.I1), 10 062022, contrary to the procedure laid doL nt tLnder the Indion Railtuags Stand_ard General Cond_itions t . Cortract, is highlg ilLegal, arbitrary, unconstitutionar and :r uioration of Articles 14 ond 3OOA of the Constitution of Inclt: ancl also in gross uiolation of the pinciples of natural lustice; and consequentlA direct the 3'd respondent to follow Clause 17 of the Indian Standord General Conditions Contract and set aside the termination Notice Vide No.W.Con.14B/ A/ 4271/ GNT-GTL/ DWR- II(Vol II), date 10.06.2022, and pass such other order or orders may deem fit and proper in the ciranmstances of the case."

4. A plain reading of the a-foresaid prayer makes it amply clear that the above writ petition was filed only assailing the termination notice dated 10.06.2022 issued by respondent No.3. There was no other relief as such sought for by the appellant in the said writ petition.

5. Learned counsel for the appellant contended that grievance of the appellant in the course of adjudication of the writ petition is that, the learned Single Judge after appreciating the contentions put forth on either side, reached to the conclusion that the contentions put forth on either side are highly disputed questions of fact. Another finding of fact given by the learned Single Judge was that there being an arbitration clause entered into between the appellant and the respondents, the disputes are one which needs to be decided by invoking arbitration proceedings. Likewise, it was also the contentlon of the learned counsel for the appellant that the learned Single Judge after appreciating the pleadings given by either side also reached to the conclusion that these are disputes which cannot be adjudicated upon by exercising writ jurisdiction, which in other words mean that PaBe 4 of !2 - the writ court in the course of deciding the m z tter would find it difficult to decide the nature of dispute raised i r the *,rit petition, rvhile exercising u'rit jurisdiction under Article 226. tf the constituti.n of India. It was lastry contended by the learn< d counsel for *re appellant that, having reached to the conclusion r,r the factual matrix of there being highll' disputed questions of fact. the learned Singre Judge ought not to have held that there were no i regurarities on the part of respondent No.3 in terminating the contrrr :t vide order dated 1o.06.2022.

6. According to learned Senior Counsel Ibr tl-Lr appellalt, having held that the order of termination does not suff: - from irregularity, calling for a,, interference to the order of terminar on amounrs to /air accomplt for the appellant inasmuch as the ar-bitrt rrr before r,l,hom the appellant had already approached arso would no: be in a position to fairly decide the claim of appellant nor would tl.r arbitrator be in a position even to test the veracity of the order of termination or- contract; therefore, the entire exercise thar the appellant is undertaking by u'ay of arbitration would be r consequential ancl detrimental to the interest of apperant and r r ererore sought for. interference to the impugned order only to the e>:r:nt of finding given PaSe 5 of 12 by the learned Single Judge so far as upholding the order of termination is concerned. 7, Per contro, Mr.B. Narasimha Sharma, learned Additional Solicitor General of India, appearing on beha_lf of Mr. Bhujanga Rao, learned Deputy solicitor General of India, for the respondents, contended that the learned Single Judge in the course of passing the impugned order had primarily taken note of the entire factual matrix of the case, more particularly, taking into consideration the repeated extension of time that was granted to the appellant for completion of the project. According to him, concerning the railway projects involving laying of railway tracks, time is essence of the contract a',d unless the contractor shows due diligence in the execution of the work, the entire system itself suffers from it ald it adversely affects operation of the railways to a great extent. According to him, the portion of the order where the learned Single Judge had also referred to various clauses of terms and conditions entered into between the parties highlighting the fact that clause No.6l(1) specially conrained certain exceptions and these exceptional matters were not arbitrable once the decision of the railway authorit5z was held to be final and binding on the parties. (

8. Learned Additionat Solicitor Genera-l of Indi r further submitted that the learned Single Judge having taken nr 1: of these factual - matrix of the case, and reading it along with rcrt vant clause of the contract r'here certain exceptions have been car r r:d out and where matters that are not arbitrable, there is har lly any scope ol- interference left in the course of exercising writ a 1 pellate jurisdiction as the entire hnding of the learned single Judge is; based upon factual details narrated in the preceding paragraphs; arr l therefore, prayeci that there are no merits in the writ appeal and tl e same deserves tc, be dismissed.

9. Having heard the contentions put forth on e ither side and on rL perusal of the records, what needs to be appreciate 1 at this juncture is that the findings arrived at by the leamed Singlc . udge after referring to the factual details of the entire contract a rd contract- relate<i progress, the fact u'hich is apparently visible fi r m the list of dates provided by the parties is that a substantial part c i the entire contract was carried out during the coVID pandemic pcr.r rd and extension of time u,as also granted during the peak COVID 1ir e. it is everybody,s case work as to how things were progressing durir.g the COVID period and the progress reaching to a standstifl positior for a short period .f \ time and even when it commenced, it could not commence at its full speed, was obvious in the light of effect of COVID Paldemic. lO. Next, we now look into the findings given by the learned Single Judge at paragraph No.19 ofthe impugned order, viz., "1g. The petitioner addressed letters to 4th respondent as well os to 3'd respondent instead of concentrating on the progress of uork and completing the same within the time stipulated and extended completion date. Whereas, the petitioner had addressed the aforesaid letters stating that respondents faue not handed ouer the site and obstacles. Thus, there are sdueral factual aspects u'thich this Court cannot consider in a petition filed under Article 226 oJ the Constitution of India. "

11. Likewise, in paragraph No.20 of the impugned order, the learned Single Judge further held as under, viz., The aforesatd facts tttould reueal that there are "20. complicated questions of fact u:hich this Court cannot consider in a petition flecl und.er Article 226 of the Constitution of Indio "

12. Referring to the arbitration clause, the learned Single Judge went on to hold at paragraph No.22 that, after referring to the procedure prescribed under the contract if the Railways do not appoint an arbitrator, the appetlant /contractor thereafter shall demand in writing that dispute or difference be referred to arbitration. It would be relevant at this juncture to refer to the findings-recorded in paragraph Nos.22 to 25, which for ready referen le are extracted hereunder, viz., "22. In the euent t'tf ang dispute or d[fference betux t n the parties hereto as to the constnlction or operatLon of this c,t .lra.t, or the respectiue ights and liabilities of the parties on anA matt :r in question, dispute or difference on anA account or as to the u,itl I oLding bg the Railwag of o.ng certi,ficate to which the contractor t,t t I cLoim to be entitLed to, or if the Railway fails to make a decision tir in I2O daAs, then and in ong such case, but except in ang of the "ex ) )cted matters" refered to in. Clause-63 of these conditions, the contr'r 'tor, afier 120 days bu.t u.tithin 18O dags of his presenting his final ckt n on disputed matters sha demand in Luiting that dispute or differt ce be referred to arbitration.

23. The demand for arbitration sholl specifu the nLut ers which are in question, or subject of the dispute or difference as :t so the amount of clatm itent-uise. Onlg such dispute(s) or differen,:,,1 ;) in respect of uhich the demand has been made, together utith courit 'r ct..ims or set off, g[uen bq the Railluag, shall be refened lo arbtt,( tion and other motters shall not be included. in the rekrence.

24. Therefore, i,f the petitioner is houing anll gneL tnce, it has to inuoke the said arbitration clause. There is no dbpt t tuith regard to the legal position that though there is an arbitrtL;i, n clrtuse, tuit petitton is maintainabte.

25. As di.scussed supra, there are compticctted ,1 ctstions of fact tuhich this Court cannot declde and the same can 1,. decided by the arbitrator ur Lhe arbitration proceedings." ----,

13. The learned Single Judge, further referring to the complicated questions of fact and the remedy of arbitration being available to the appellant, held at paragraph No.33 as follows, viz', .33. As discr-rssed supra, seious / comp[icated questions of facts are there, ttthich this Court cannot decide in o petition ftled under Article 226 of the Constitution of India. There b an arbitration clause' Tlrc petitioner herein hos alreadg fited the aforesaid COS No'4O of 2022 seeking the aforesaid reliefs. " L4. Next, we see the operative part of the order wherein the learned Single Judge held as under, viz., "35. As discussed supro, since the petitioner herein had already inuoked the orbitration clause bg uag of ftttng COS No'40 of 2022' it can take oll the aforesard deknces before the Arbitrator' In uieu-t of the same, according to this Court, there is no itegutaitg in terminating the contract bg 3'a respondent uid.e letter dated 10 06'2022' Thus, the petitioner faited to moke out o case to interfere uith tlu said terminotton order. Therefore, uietoed. from ang angle, this tttit petition is tiable to be dismissed."

15. A plain reading of the aforesaid paragraph by itself would go to shou, that the said paragraph can be divided into two parts, viz., (i) the tirst part deals r,r,ith observation of the appellant / contractor having already invoked the arbitration proceedings by filing COS'No'4O of

2022.Itwasheldthattheappellantcantakeatltheaforesaid defences before the arbitrator. This, in itself gives a cleal indication that, what was intended by the learned Single Judge was that since PaBe 10 of 12 \- the contract had an arbitration clause and thr: appellant having invoked the arbitration proceedings, the appellant , .,ould be at liberty to take a-11 the defences before the arbitrator; anrl {i) the second part deals q'ith that part of the order u.here the learncc Single Judge had upheid the order of termination of contract and fur t rer held that there is no scope of interference.

16. In the opinion of this Bench, not once or tr.r,i<.t , but on numerous occasions the learned Single Judge has held thzrt r pon perusal of the records and upon scrutinizing the contentions put lrrth on either side, there is no dispute to the extent of the learned Sir-r: e Judge himself on numerous occasions having affirmed and reiteratc r that the nature o1 claim and the dispute raised are both highly comP icared questions ol facts and they would have to be only adjudicated r pon after recording of evidence; and that the appellant has a remedv rrrder the arbitration law and that the appellant had also availed tlr,: remedy under the: arbitration law. Therefore, the findings given b, the learned Singkr Judge and subsequently affirming the order cf tt:r.r'rination of contracr is definitely without any reason and is in sell- r rntradiction to tht: findings given in the earlier part of the order. Ther:fore, in the opinion of this Bench, this is in contradiction to the fin<i r gs arrived at in the hrst part of paragraph No.35 of the impugned o.r.r r. In the opinion of t --\i- PaBe 11 of 12 - I l this Bench, when the appellant had been relegated to avail the remedy under arbitration law ald also having affirmed the invocation of the arbitration clause, and likewise we are also impressed upon the a-rguments advanced by the learned counsel for the respondent wherein he says that once when the learned Single Judge has affrrmed the order of termination of contract, there would hardly be aly scope left to the arbitrator or for that matter in any other forum in entering into merits of the case to decide the matter in favour of the appellant. L7. Another aspect which strikes the conscience of this Bench is ( ( that even if the learned Single Judge had to dismiss the writ petition by holding that the termination of contract being strictly in accordance with terms of the contract, there ought to have been specihc reasons reflected before affirming the order of termination. A plain reading of the entire order would go to show that though there is a reference of the factua-l details of the case, we a-re of the affirmed view that the iatter part of the order, i.e., in paragraph No.35 of the impugned order, not being sustainable deserves to be and is accordingly set side, leaving it open to the appellant to raise all his claims before the arbitrator. Further, the arbitrator is at liberty to decide the claim of the appellant / contractor strictly in accordance with the terms of the contract agreed upon between the parties. It is made clear that the --- PaBe 12 of 12 observations made by this Bench and also by the ie;r 'ned Single Judge should not come in the way of the Arbitrator in tiL-.ing a decision in accordance u,ith lau,.

18. For all the aforesaid reasons, the Writ Appeal star-rds allowed to the aforesaid extent. No costs

19. Miscellaneous petitions, pending if any, shall s ,and closed. SD/. K. SHYLESHI JOINT REGISTRAR \ To, //TRUE COPY// SECTION OFFICER 1 c 4 5 6 7 8 I The Secrectary, Ministry of Railways, The Union of lnd z , New Delhi. The General Manager, South Central Railway, Railwal Jhavan, Secundrabad-500071 . The Chief Engineer (Construction-lll), South Central Ra lway, Railway Bhavan, Secundrabad-50007 1 . The Dy. Chief Engineer (Construction), South Central : rilway, 1st Lane Arundalpet Guntur, A.P. The FA & CAO, South Central Railway, Rail Nirman N I ryam, Secundrabad- 50007'1 , Telangana. The Branch Manager, lndian Overseas Bank, 3/A,. Sal anagar Branch, Satyanagar, Bhubaneswar - 751007. Odisha. on6 cc to sRl PlLLlx LAW FIRM, Advocate [OPUC] One CC to SRI N. BHUJANGA RAO, Deputy Solicitor t ;eneral of lndia [OPUC] Two CD Copies BN 0 HIGH COURT DATED:1611212025 JUDGMENT WA.No.743 ot 2022 AIE :)i t h iiB lttt 3Y() d (, I I , ;,, ,'\ ..," '.,,.', ALLOWING THE WRIT APPEAL WITHOUT COSTS I6 )L