Delhi High Court
Kalindee Rail Nirman (Emgomeers) ... vs Union Of India & Anr. on 12 May, 2014
Author: Badar Durrez Ahmed
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 12.05.2014
W.P.(C) 2102/2014 & CM 4385/2014
KALINDEE RAIL NIRMAN (EMGOMEERS) LIMITED ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr A.S. Chandhiok, Sr. Advocate with Mr Ritesh Kumar and Mr Arjun
Pall, Advocates.
For the Respondents : Mr Dhruv Dewan, Advocate for R-1.
Mr Anil K. Seth, Advocate with Mr Manoj Kumar, Advocate for R-2.
CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the letters dated 06.03.2014 and
20.03.2014 issued by the Rail Vikas Nigam Limited whereby the request of
the petitioner for replacement of Balfour Beatty Group Limited by two
partners namely GMR Infrastructure Limited (GMR) and Tata Projects
Limited (TPL) was not agreed to in terms of Clause 1.14 (d) of the general
conditions of the contract.
2. Pursuant to the Notice Inviting Tender (NIT) dated 10.04.2013, a
letter of Award was issued in favour of the joint venture comprising of
Balfour Beatty Group Limited-Kalindee Rail Nirman (Engineers) Limited
(Kalindee) on 09.10.2013. Two other letters of Award were similarly made
on the same date with regard to the two other similar packages.
3. We need not go into the details of the project. The only point for
consideration is what is said in the said letters dated 06.03.2014 and
20.03.2014. In this context we may point out that Balfour Beatty Group
Limited was a defaulting party and as a result a proposal was sent to the Rail
Vikas Nigam Limited for replacing Balfour Beatty Group Limited with
GMR and TPL. The effect of this would be that the original joint venture
comprising Balfour Beatty Group Limited and Kalindee would be substituted
by a new joint venture of GMR, Kalindee and TPL, known as GMR-Kalindi-
TPL JV. According to the Rail Vikas Nigam Limited, a defaulting party in a
joint venture could be substituted only by one party and not by two parties.
This view was taken in the context of Clause 1.14 (d) of the General
Conditions of Contract. Clause 1.14 (d) of the General Conditions of
Contract reads as under:-
"1.14 Joint and Several Liability : If the contractor
constitutes (under applicable laws) a joint venture of two
or more persons/firms:
(a) xxxx xxxx xxxx xxxx
(b) xxxx xxxx xxxx xxxx
(c) xxxx xxxx xxxx xxxx
(d) In the event of default by any partner of joint venture,
the lead partner or one of the other partners in case the
defaulting partner is the lead partner, shall notify the
Employer within twenty eight (28) days of the
occurrence and within fifty six (56) days of the said
notification the lead partner shall assign the works of
the defaulting partner to equally competent party with
prior consent of the Employer.
xxxx xxxx xxxx xxxx"
4. The expression „equally competent party‟ referred to in clause 1.14 (d)
above has been taken by the Railway Vikas Nirman Limited to mean party in
singular.
5. Mr Chandihok, the learned Senior Counsel appearing on behalf of the
petitioner submitted that this is an erroneous construction even as per the
terms of the General Conditions of Contract itself. He immediately drew our
attention to clause 1.2 which specifically deals with interpretation. Clause
1.2 (b) reads as under:-
"1.2 Interpretation : In the Contract, except where the
context requires otherwise:
(a) xxxx xxxx xxxx xxxx
(b) words indicating the singular also include the plural
and words indicating the plural also include the
singular
xxxx xxxx xxxx xxxx
6. It is evident that Clause 1.2 (b) clearly stipulates that words indicating
the singular also include the plural and vice-versa. This would however be
subject to the other conditions of the contract. One such term being Clause
4.1. (b) of the Instructions to Bidders which deals with the question of
„eligible bidders‟. It clearly stipulates that in case of a joint venture, the joint
venture shall not have more than 3 (three) partners. In other words, subject to
the condition that there shall not be more than three partners in the joint
venture, the expression „party‟ may be read as „parties‟.
7. From this it is evident that the expression „equally competent party‟
appearing in Clause 1.14 (d) of the General Conditions of Contract would
not be restricted to a singular party but also include the plural connotation of
party subject to the conditions stipulated in Clause 1.14 (b) (i) of the
Instructions to Bidders being complied with which prescribes the maximum
of three partners of the joint venture.
8. In the present case, the initial joint venture comprised of two parties.
The proposed joint venture would comprise of three partners and, therefore,
the conditions stipulated in Clause 4.1. (b) (i) of the Instructions to Bidders
would not be violated. Consequently, we feel that the letters dated
06.03.2014 and 20.03.2014 are liable to be set aside and quashed. This is so
because, as we have explained above, the expression „party‟ would include
not only the singular but also the plural subject to a maximum of three
partners in a joint venture.
9. As a result, the two letters dated 06.03.2014 and 20.03.2014 are
quashed. The proposal of the petitioner with respect to the introduction of
GMR-TPL as partners in the joint venture would be processed by the Rail
Vikas Nigam Limited, as expeditiously as possible, in accordance with law
so that the project does not suffer. The writ petition is allowed as above.
There shall be no order as to costs.
10. Dasti.
BADAR DURREZ AHMED, J.
SIDDHARTH MRIDUL, J.
MAY 12, 2014
dn
