Allahabad High Court
M/S Jitendra Singh Parihar vs Union Of India And 2 Others on 2 February, 2023
Bench: Mahesh Chandra Tripathi, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- WRIT - C No. - 39538 of 2022
Petitioner :- M/S Jitendra Singh Parihar
Respondent :- Union Of India And 2 Others
Counsel for Petitioner :- Prakhar Tandon
Counsel for Respondent :- A.S.G.I.,Chandrika Prasad
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Ajit Singh,J.
Heard Shri Prakhar Tandon, learned counsel for the petitioner and Shri Chandrika Prasad, learned counsel for the respondents.
Present writ petition has been preferred for quashing the order dated 26.2.2021 passed by Asstt. Divisional Engineer/HQ N.C. Railway Kanpur and for a direction to respondent no.2 to release the amount deposited with respondent no.2 as performance guarantee (Rs.2,38,125/-) and security deposit (Rs.1,83,000/-).
At the very outset, learned counsel for respondents raised preliminary objection regarding the maintainability of the writ petition on two folds. Firstly he submits that the writ petition is preferred with delay of 586 days and as such the writ petition is liable to be dismissed on the ground of delay and laches. Secondly he submits that the department has issued Instructions to Tenderers and Conditions of Tender dated 7.3.2014 (paper book p.19), wherein para 8.1.2 (f) provides that whenever the contract is rescinded, the security deposit shall be forfeited and the Performance Guarantee shall be encashed and the balance work shall be done independently without risk and cost of the failed contractor. The failed contractor shall be debarred from participating in the tender for executing the balance work. If the failed contractor is a JV or a partnership firm, then every member/ partner of such a firm shall be debarred from participating in the tender for the balance work either in his/ her individual capacity or as a partner of any other JV/ Partnership firm. He submits that accordingly termination notice was given to the petitioner on 12.6.2015 stipulating therein that forty eight hours (48 hrs.) notice was given to the petitioner from the office of Sr. Divisional Engineer/III, North Central Railway, Allahabad through his letter dated 3.6.2015 but the petitioner has not taken any action to show adequate progress of the work. Since the period of 48 hours' notice has already expired, the contract was terminated (with immediate effect) in terms of Clause 62 of General Conditions of Contract and it was further provided that the balance work under the contract will be carried out independently without petitioner's participation. In this backdrop, learned counsel for the respondents states that as per the tender notice 48 hours time was accorded, which was not responded within time and as such the contract was terminated vide letter dated 12.6.2015 strictly in accordance with law. Later on taking a chance, the petitioner has also approached to the Arbitrator with inordinate delay, which was also having the same fate and the Arbitrator rejected the claim on the ground of laches. Even the petitioner has also approached this Court with inordinate delay without challenging the termination order dated 12.6.2015. As such it is contended that the writ petition is liable to be dismissed with heavy cost. Reliance has also been placed on the judgment dated 15.4.2014 in Writ-C No.6215 of 2011 (M/s Tiwari Construction v. State of U.P. & Ors.) and the judgment dated 24.2.2014 in Writ-C No.11544 of 2014 (M/s R.S. Associate v. State of U.P. & Ors.), wherein the Court had declined to entertain the petition, which had been filed for making payment of bills under a contract. The Court further observed that there is nothing on record, which may persuade us to hold that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
In the aforesaid facts and circumstances, considering the objections being raised by learned counsel for the respondents and respectfully going through the judgments cited at Bar, we are not inclined to interfere in the matter.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 2.2.2023
SP/
