Sh. Nareshkumar Gupta vs Govt. Of Nct Of Delhi & Anr.
2011 Latest Caselaw 4474 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 13th September, 2011
+                   W.P.(C) 6647/2011 & CM No.13412/2011 (for stay)

         SH. NARESHKUMAR GUPTA                   ..... Petitioner
                     Through: Mr. Moni Cinmoy, Adv.

                                      versus

         GOVT. OF NCT OF DELHI & ANR.         ..... Respondents
                      Through: Ms. Zubeda Begum, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may      Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?           Not necessary

3.       Whether the judgment should be reported          Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 6th July, 2011 of the

respondents determining the contract with the petitioner and forfeiting the

earnest money deposit, security deposit and Performance Guarantee and

further intimating the petitioner that the balance remaining work shall be

done at the cost and risk of the petitioner. Mandamus is also sought

directing the respondents to refund the earnest money/security deposit and

the Performance Guarantee furnished by the petitioner and to not take steps

for getting the balance work done at the risk and cost of the petitioner.

2. The respondents had pursuant to acceptance of the bid of the

petitioner placed an order on the petitioner for construction of brick roads

and sewage water drains in W-Block of Janaki Vihar, Prem Nagar-II in

Karari Assembly Constituency in Kanjhawala Block. It is the case of the

petitioner, that though the stipulated date for completion of the said works

was 12th October, 2010 but on account of hindrances at site, the time for

completion was suo moto extended up to 31st January, 2011; that though

the tender amount of the said work was `15,85,371/- but as on 17th

January, 2011 the petitioner had already completed the work of more than

`18 lacs and was as such was not in a position to work any further without

revision of the work and approval of the same by the Competent Authority;

that however the respondents instead of so having the work revised from

the Competent Authority are, contending that the work had not been

completed by the petitioner and the work in two more gallies remained to

be done as per the agreement and that the petitioner under the agreement is

liable to execute the work deviated up to 50% if any. The petitioner

contends that the deviation however is in excess of 50% and without being

paid the market rate for the deviations beyond 50%, he cannot be expected

to continue/complete the work.

3. It is not as if the impugned order dated 6th July, 2011 has been issued

suddenly. A notice dated 9th June, 2011 was issued by the respondents to

the petitioner to show cause as to why action as aforesaid be not taken

against the petitioner and after considering the reply of the petitioner

thereto the order impugned in this petition has been issued.

4. The counsel for the petitioner contends that the petitioner has neither

failed to complete the work nor abandoned the work and thus the action of

the respondents of determining the contract and forfeiting the earnest

money, security deposit and performance guarantee and of threatening to

have the work executed on the risk of the petitioner is unwarranted.

5. The aforesaid would show that the dispute between the parties is

purely contractual. The present is not a case where any public law element

is entailed. The dispute is whether the works have deviated in excess of

50% from the stipulated/agreed works and of the volume of the work done

by the petitioner till now. The same entails disputed questions of fact

which cannot be adjudicated and ought not to be adjudicated in writ

jurisdiction. The parties herein had agreed to the dispute resolution

mechanism by way of arbitration. There is no occasion for imposing any

other mechanism on the respondents.

6. The counsel for the petitioner has however heavily relied on Union

of India v. Tantia Construction Private Ltd. (2011) 5 SCC 697 and has

contended that the present case is squarely covered by the said judgment

and in which case also a writ petition was entertained.

7. However a perusal of the said judgment shows that the Apex Court

therein proceeded on the basis of the facts which were admitted therein. In

the present case however the respondents have not agreed with the

petitioner that the petitioner has already executed the works which he had

stipulated to do or that he is now being called upon to do works beyond the

agreement and for which he may be said to be entitled to market rate. Thus

merely because the claim of the petitioner is the same as that of the

contractor in the judgment aforesaid, would not entitle the petitioner to any

relief in writ jurisdiction. The said judgment thus has no application.

8. The writ petition is therefore dismissed as not maintainable with

liberty to the petitioner to avail the alternative remedies. No order as to

costs.

CM No.13418/2011 (for exemption).

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE)

SEPTEMBER 13 , 2011 pp..