Sundarananda Barman And Another vs The State Of West Bengal And Others
2021 Latest Caselaw 2922 Cal

                        In the High Court at Calcutta
                       Constitutional Writ Jurisdiction
                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                             RVW 2 of 2021
                          IA No: CAN 1 of 2021
                                   In
                           WPA 10069 of 2020
                   Sundarananda Barman and another
                                   Vs.
                   The State of West Bengal and others

For the review
applicants-petitioners    :     Mr. Swarup Banerjee,
                                Mr. Manoj Kumar Bhattacharyya
For the
respondent no.1           :     Mr. Samrat Sen,

Mr. Amitava Mitra

Hearing concluded on : 16.04.2021

Judgment on : 22.04.2021

Sabyasachi Bhattacharyya, J:-

1. Since the arguments of the applicants in the review petition and

respondent no.1 were recorded at length in the order dated April 16,

2021, those are not being narrated again in order to avoid

unnecessary repetition. However, such arguments are considered and

referred to in the following order.

2. The review applicants primarily rely on certain documents which,

although in the custody of the applicants when the order under review

was passed, were not with learned counsel for the applicants at that

point of time, due to which those could not be placed before Court on

the said date.

3. The first such document is a print-out of Clause 70.0, which is the

Force Majeure clause contained in the tender agreement entered into

between the applicants and the tender issuing authority. Such clause

is reproduced below:

"70.0 FORCE MAJEURE

If, at any time during the currency of the Contract, the performance in whole

or in part by either party of any obligation under this Contract shall be

prevented or delayed by reason of any war, hostilities, invasion, acts of public

or foreign enemies, rebellion, revolution, insurrection, civil commotion,

sabotage, large scale arson, floods, earthquake, large scale epidemics,

nuclear accidents, any other catastrophic unforeseeable circumstances,

quarantine restrictions, any statutory rules, regulations, orders or requisitions

issued by a Government department or competent authority or acts of God

(hereinafter referred to as "event") then, provided notice of the happening of

such an event is given by either party to the other within 21 days of the

occurrence thereof.

a. Neither party shall by reason of such event be entitled to terminate the

Contract or have claim for damages against the other in respect of such non-

performance or delay in performance."

4. The applicants also rely on a communication dated May 25, 2020

issued from the end of the applicants to the Vice-Chairman, Hooghly

River Bridge Commissioners, seeking further extension of the time for

completion of the work till March 31, 2021.

5. The other document relied on by the applicants is another

communication dated June 15, 2020, reiterating the previous request

for extension of time.

6. It is contended that the said documents, if considered by this Court

while passing the order under review, could have changed the

outcome of the writ petition.

7. By placing reliance on the relevant portions of the order under review,

dated December 9, 2020, learned counsel argues that the primary

basis of dismissal of the writ petition (WPA 10069 of 2020) was that

the applicants had not requested for extension of time before expiry of

the contract on its last-extended date, that is, May 31, 2020.

However, the communications-in-question clearly indicate that such

extension was actually sought by the applicants on May 25, 2020,

that is, prior to the expiry of the extended period of contract on March

31. 2020. As such, it is contended that the premise of the order

under review is rendered irrelevant in view of the said

communications.

8. The primary basis of the contentions of respondent no.1 is that the

materials now produced, even if shown to the court at the juncture

when the order under review was passed, would not have altered the

fate of the writ petition.

9. It has been argued by respondent no.1 that Clause 70.0 (a) restrains

both the parties to the agreement from terminating the contract or

claim for damages against the other in respect of such non-

performance or delay in performance.

10. In the present case, as observed in the order under review itself, the

termination was automatic, that is, by efflux of time. Hence, there

was no positive act of termination from the end of the tender issuing

authority.

11. The scope of a review application is limited. In the present case, no

error apparent on the face of the record is argued by the applicants,

nor was there any reason akin to the grounds provided in Order XLVII

of the Code of Civil Procedure. The only ground invoked by the

applicants is "discovery of new material". In the present case, the

applicants were fully aware and already in custody of the documents

now sought to be produced; but those were not annexed to the writ

petition by the petition. As such, it is doubtful as to whether, strictly

speaking, the documents come within the purview of "new material" or

could be said to have been discovered after the order under review

was passed.

12. However, even a liberal interpretation of such provision in favour of

the petitioner, insofar as it restricts either party to the contract from

terminating the contract or claiming damages by reason of large scale

epidemics or quarantine restrictions, which are mentioned among

other events in the said clause, in the present case there was no

termination from the end of the authorities, on such grounds or

otherwise. The termination was automatic by efflux of time within the

purview of the Indian Contract Act, 1872. Thus, the futile prayers for

extension, even if produced at the time of passing of the order under

review, could not have changed the fate of the writ petition.

13. As seen from the order under review dated December 9, 2020, the

premise of the order was that the contract came to an end by efflux of

time on May 31, 2020. It was categorically held that the impugned

letter dated July 8, 2020 was merely an intimation of the petitioners

based on the prior closure of jural relationship between the parties to

remove the construction materials and machineries of the petitioners

from the contractual site. However, the contract stood terminated on

May 31, 2020.

14. Although, incidentally, it was discussed in the order that the

applicants had a remedy in praying for extension within the extended

date of expiry and that no such prayer was made by the applicants,

the said observation was not the sole basis of the order. Since it was

the discretion of the tender issuing authority whether or not to further

extend the time for completion of the project and the tender issuing

authorities chose not to so extend, the documents sought to be

produced with the review application would not have altered the

outcome of the writ petition since, in any event, the contract expired

by efflux of time on May 31, 2020.

15. As discussed above, Clause 70.0 (a) of the agreement does not confer

any additional benefit on the applicants, since there was no positive

act of termination by the tenderer on the grounds contemplated

therein or otherwise. The termination being automatic, the materials

now placed before court along with the review application would have

been irrelevant for the purpose of deciding the writ petition and could

not have altered the conclusion reached in the order under review.

16. In such view of the matter, RVW 2 of 2021 along with CAN 1 of 2021,

filed in connection therewith, are dismissed.

17. There will be no order as to costs.

18. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )