Harji Engineering Works Pvt. Ltd vs Union Of India & Anr
2023 Latest Caselaw 5110 Cal

Form No. J.(2)
Item No.6
Court No.1
Pallab/K.S.
A.R (Court)




                    IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                             CIVIL APPELLATE JURISDICTION
                                    APPELLATE SIDE

                                    HEARD ON: 17.08.2023

                                  DELIVERED ON: 17.08.2023
                                       CORAM:
                         THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
                                         AND
                 THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                                      M.A.T. 1299 of 2023
                                               With
                                     I.A. No. CAN 1 of 2023

                               Harji Engineering Works Pvt. Ltd.
                                              Vs.
                                      Union of India & Anr.

Appearance:-

Mr. Sirsanya Bandyopadhyay
Ms. Deboleena Ghosh                         .........for the appellant

Mr. Saurik Nandy                      .........for the Union of India

Mr. Rohit Das
Ms. Kishwar Rahman
Mr. Indradip Das
Ms. Sristi Roy                        ..........for the respondent no.2

                                          JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)

1. This intra-Court appeal filed by the writ petitioner is directed against the

order dated 6th July, 2023 in W.P.A. 12900 of 2023. In the said writ

petition, the appellant had challenged the action of the 2 nd respondent in

floating a new tender with regard to the subject work through 'Risk and

Cost' of the petitioner/appellant, who was initially awarded the tender,

which stood terminated consequently. As against the order of termination,

the appellant has rightly invoked the arbitration clause and notices have

also been issued and the appellant has also moved an application under

Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, "the

Act") before the learned single Bench of this Court. We are informed by the

learned advocate appearing for the appellant that the arguments have been

heard by the learned single Bench and orders have been reserved.

2. The learned advocate appearing for the 2 nd respondent/tendering authority

submits that in the said application filed under Section 9 of the Act, an

order of status quo has been granted and the 2nd respondent has

questioned the jurisdiction of the learned single Bench of this Court to

entertain the application filed under Section 9 of the Act and the

appropriate forum would be the Commercial Court at Rajarhat and not

before this Court.

3. The learned advocate appearing for the 2 nd respondent submitted that the

new tender floated has been finalised and a third party has been awarded

the work.

4. The proceedings, which were impugned in the writ petition are consequence

upon the termination of the contract awarded to the appellant. We say so

because upon termination of the contract, the 2 nd respondent has floated a

new tender subject to the 'Risk and Cost' of the appellant. Thus, the new

tender having been floated is in effect a consequential action upon

termination of the contract awarded to the appellant at the first instance.

Therefore, the arbitration clause, which is available in the tender document

will equally apply to the challenge to the fresh tender, which has been

floated at the risk and cost of the appellant. Therefore, the appellant

should invoke the provisions of the Act and a writ petition questioning the

correctness of the same cannot be entertained.

5. In the light of the fact that already arguments have been heard and orders

have been reserved in the application filed by the appellant under Section 9

of the Act, the appellant is at liberty to file a fresh application under

Section 9 since according to the appellant floating of a new tender at the

risk and cost of the appellant gives it a fresh cause of action. Liberty sought

for is granted.

6. We make it clear that the observations/findings rendered by the learned

writ Court in the impugned order dated 6 th July, 2023 will not in any

manner prejudice the appellant from canvassing all grounds, both factual

and legal in the proceedings, which it proposes to initiate under Section 9

of the Act.

7. With the above observations, the appeal along with the connected

application are disposed of.

8. No costs.

9. Urgent photostat certified copy of this order, if applied for, be furnished to

the parties expeditiously upon compliance of all legal formalities.

(T.S. SIVAGNANAM) CHIEF JUSTICE

I agree.

(HIRANMAY BHATTACHARYYA, J.)