High Court
Case Details
Court No. - 40 Case :- WRIT - C No. - 10012 of 2023 Petitioner :- M/S Awasthi Construction Company Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Santosh Kumar Pandey,Suresh Kumar Gupta Counsel for Respondent :- A.S.G.I.,Piyush Tripathi Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Manjive Shukla,J.
Legal Reasoning
Heard learned counsel for the petitioner and Sri Piyush Tripathi, learned counsel for the respondent. The petitioner-Company through its partner has challenged the order impugned dated 07.03.2023 passed by the third respondent whereby contract/work order in favour of the petitioner had been cancelled/rescinded in terms of Clause 62 of Standard General Conditions of Contract. Further, participation of the petitioner as well as participation of every member/partner in any manner as an individual or a partnership firm JV was debarred from participation in the tender for executing the balance work and Security Deposit had also been forfeited and Performance Guarantee was also encashed. It transpires from the record in question that the second respondent had invited tender dated 31.12.2018 for extension of routine overhauling shed at repair depot, Jhansi. In response to the said tender, the petitioner-Company being company as highest bidder was selected and accordingly letter of acceptance was issued in favour of the petitioner-Company on 13.02.2019 subject to terms and conditions as laid down in the General Condition of Contract of NCR of Nov. 18 and as amended from time to time North Central Railway specifications for work and material binding upon the petitioner. The schedule was enclosed as Annexure 'A' to the letter of acceptance. In the said letter of acceptance, the date of commencement of contract was to be reckoned from the date of issue of the said letter and the completion period of the work was at the end of nine months i.e. upto 12.11.2019. Admittedly, the work was not completed well within the stipulated time. Accordingly, forty eight hours (48 hrs.) notice was given to the petitioner under the office letter dated 24.02.2023. In spite of the said notice, no adequate progress of the work was there and again on 07.03.2023, notice was given to the petitioner indicating therein the contract stand rescinded in terms of Clause 62 of Standard General Conditions of contract and the balance works under this contract will be carried out independently without your participation. It has further been observed that the petitioner's participation as well as participation of every member/partner in any manner as an individual or a partnership firm JV is hereby debarred from participation in the tender for executing the balance work and your Security Deposit shall be forfeited and Performance Guarantee shall also be encashed.
Decision
While pressing the writ petition only the ground has been taken that the petitioner was conducting/executing the work order very sincerely and promptly but due to illness of his family member, he could not perform the contract well within time. In this regard, certain medical documents were also brought on record. No other reason has been assigned for not executing the work in terms of the agreement. The matter was taken on 5.4.2023 and learned counsel who represents the Union of India was asked to seek instructions. In response thereof, detailed counter affidavit is filed on behalf of the respondent, which is taken on record. In the said affidavit, various correspondence are appended indicating therein on various occasions, the notices were served upon the petitioner and eventually, clause 62 of Standard General Conditions of Contract was invoked. In this backdrop, Sri Piyush Tripathi, learned counsel for the respondent raised a preliminary objection regarding maintainability of the writ petition on the ground that against the order impugned, the petitioner has got efficacious alternative remedy under Clause 63 and 64.(1)(i) of Standard General Conditions of Contract and as such the present writ petition is liable to be dismissed on the ground of alternative remedy. Once an objection is being raised, we have occasion to peruse aforesaid Clause, which reads as under. "SETTLEMENT OF DISPUTES-INDIAN RAILWAY ARBITRATION RULES 63. Matters Finally Determined By The Railway: All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the GM and the GM shall, within 120 days after receipt of the contractor's representation, make and notify decisions on all matters referred to by the contractor in writing provided that matters for which provision has been made in Clauses 8, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57A, 61(1), 61(2) and 62(1) to (xiii)(B) of Standard General Conditions of Contract or in any Clause of the Special Conditions of the Contract shall be deemed as 'excepted matters' (matters not arbitrable) and decisions of the Railway authority, thereon shall be final and binding on the contractor; provided further that 'excepted matters' shall stand specifically excluded from the purview of the Arbitration Clause. 64.(1) Demand For Arbitration: 64.(1) (i) In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the "excepted matters" referred to in Clause 63 of these Conditions, the contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters shall demand in writing that the dispute or difference be referred to arbitration." In the facts and circumstances, we are of the considered opinion once the efficacious alternative remedy is available to the petitioner, there is no reason or occasion to bypass the said forum and the writ petition is liable to be dismissed on the ground of efficacious alternative remedy. Consequently, the writ petition stands dismissed with the aforesaid leave. Order Date :- 17.4.2023 A.K.Srivastava Digitally signed by :- ARUN KUMAR SRIVASTAVA High Court of Judicature at Allahabad