Calcutta High Court
Pearl Corporation vs Wbphidcl & Ors on 11 November, 2022
ORDER OD-5
APOT/176/2022
WPO/2335/2022
IA NO.GA/1/2022
GA/2/2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
PEARL CORPORATION
VERSUS
WBPHIDCL & ORS.
BEFORE:
THE HON'BLE CHIEF JUSTICE PRAKASH SHRIVASTAVA
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
DATE : 11TH NOVEMBER, 2022
APPEARANCE:
Mr. Tapas Dutta, Advocate
......for the appellant
Mr. Sayan Sinha, Advocate
Mr. Adil Nasir, Advocate
Steven S. Biswas, Advocate
... for the respondents 1, 2 & 3
Mr. Debasish Ghosh, Advocate
Mr. Sayan Ganguly, Advocate
....for the State
The Court:- By this intra-Court appeal, the writ petitioner has
challenged the order of the learned Single Judge dated 23rd August, 2022
whereby GA/3/2022 for interim stay has been rejected.
The appellant had approached the writ Court with the plea that it
was awarded the contract for renovation and up-gradation of Headquarters of
Traffic Guard of Kolkata Police at Brabourne Road, Kolkata and that the initial
period for completion of the work was 365 days. The work could not be
completed. Therefore, twice extension was granted and as per the last
extension, the work was to be completed by 2nd June, 2022. According to the
appellant, there was delay on the part of the respondents in handing over the
site and clearing the bills, therefore, the work could not be completed.
Meanwhile, the contract was terminated vide communication dated 29th
March, 2022. Hence, the appellant had made a prayer in the writ petition to
set aside the termination notice dated 29th March, 2022 and also sought a
direction on the respondents to make payment of the bill dated 31st March,
2022. In the pending writ petition, GA/3/2022 was filed seeking stay of the
work order dated 24th June, 2022 which was issued in favour of the third
party. The stay application was rejected by the impugned order.
The submission of the learned counsel for the appellant is that the
contract contains the penalty clause but the said clause was not invoked
before termination of the contract. It also provides for compensation for delay
that was also not invoked and the contract has been terminated before expiry
of the extended period and that the bills were not paid. Therefore, the contract
could not have been terminated. He submits that there was a delay in handing
over the site, therefore, the work could not be completed and in this
background he has submitted that the learned Single Judge has committed an
error in rejecting the prayer for grant of stay.
The learned counsel appearing for the respondents has opposed
the appeal and supported the impugned order passed by the learned Single
Judge and has submitted that the nature of work was relating to public
service and serious lapses were committed by the appellant and that the bills
were cleared as per the tender conditions and there was no delay on the part
of the respondents in handing over the site as the work was relating to
renovation and for that purpose the sites were to be handed over in phased
manner. He has further submitted that contract provides for termination and
the termination clause has rightly been invoked and the appellant had
belatedly approached the Court.
We have heard learned counsel for the parties. Perusal of the order
passed by the learned Single Judge reveals that all the relevant aspects have
duly been considered by the learned Single Judge. Record reflects that the
appellant had initially made a prayer in the writ petition itself for interim relief
and originally the said prayer was considered by the learned Single Judge and
by order dated 13th July, 2022, limited protection was extended by directing
that the action taken by the respondents shall abide by the result of the
proceedings. The prayer for grant of interim order restraining the termination
of the contract was not granted. This order was not challenged any further.
It has been pointed out by the learned counsel for the respondents
that the contract was terminated on 29th March, 2022. Thereafter the work
order to the third party was issued on 24th June, 2022 but the writ petition
was filed by the appellant sometime on 8th July, 2022 much after the
termination of the contract and issuance of fresh work order to the third party.
When the matter for grant of interim relief was heard earlier by the Single
Bench on 13th July, 2022 at that time the work order to the third party was
already issued. Hence, considering all the circumstances, limited protection
was extended to the appellant by order dated 13th July, 2022. Hence, there
was no occasion to file a fresh application being GA/3/2022 seeking stay of
the work order. That apart the order of the learned Single Judge reflects that
though the appellant was contending that the work to the extent of 88% was
completed whereas the stand of the respondents is that the appellant had
completed the work to the extent of 27.3%. This being a disputed question, the
stand of the appellant in respect of the completion of work could not be
accepted. The counsel for the appellant has also pointed out the relevant
clause of the contract permitting termination of the contract. Hence, the stand
of the appellant that no such clause exists has rightly been rejected by the
learned Single Judge. That apart it is also noticed that the work relating to the
public utility service is required to be completed at the earliest. Therefore, the
learned Single Judge has rightly refused the prayer for stay of the work order
by observing that the nature of the work concern is an infrastructural project
of public importance and directly connected to the law and order situation.
Thus, valid reasons have been assigned by the learned Single Judge for
rejecting the prayer for stay.
Leaned Counsel for the appellant has placed reliance upon the
judgment of the Supreme Court in the matters of Madhya Pradesh Power
Management Company Limited vs. Renew Clean Energy Private Limited And
Another reported in (2018) 6 SCC 157 and N. G. Projects Limited v. Vinod
Kumar Jain And Others reported in (2022) 6 SCC 127. But both these
judgments have been considered in detailed by the learned Single Judge have
not been found to be applicable in the facts of the present case. In fact, in the
matter of N.G. Projects Limited (Supra), the Hon'ble Supreme Court has gone
to the extent observing that if court finds that there is total arbitrariness or
that the tender has been granted in a mala fide manner, still the Court should
refrain from interfering in the grant of tender but instead relegate the parties
to seek damages for the wrongful exclusion rather than to injunct the
execution of the contract.
The view taken by the learned Single Judge is in consonance with
the observation made by the Hon'ble Supreme Court. In the aforesaid
circumstances of the case, we find no good ground to interfere the order of the
learned Single Judge.
At this stage, it has been pointed out that pleadings are complete
in the writ petition and the writ petition is already appearing in the list of
learned Single Judge. Hence, we expect that the learned Single Judge will take
up the writ petition and decide the same as expeditiously as possible.
The appeal is, accordingly, disposed of. All the pending
applications are, accordingly, dismissed.
(PRAKASH SHRIVASTAVA, C.J.)
(RAJARSHI BHARADWAJ, J.)
akg/pa
