M/S Girin Unicon Projects Pvt. Ltd. (Jv) vs The Union Of India And 4 Ors
2025 Latest Caselaw 5282 Gua

Gauhati High Court

M/S Girin Unicon Projects Pvt. Ltd. (Jv) vs The Union Of India And 4 Ors on 13 June, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                 Page No.# 1/6

GAHC010020312025




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : Arb.P./7/2025

         M/S GIRIN UNICON PROJECTS PVT. LTD. (JV)
         A JOINT VENTURE OF M/S UNICON PROJECTS PRIVATE LIMITED (A
         COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING ITS
         REGISTERED OFFICE AT HOUSE NO . 19, NANDAN PATH, 4TH BYE LANE,
         BHETAPARA, GUWAHATI-781028, DIST- KAMRUP (M), ASSAM, AND M/S
         GIRIN DEKA (A PROPRIETORIAL CONCERN, HAVING ITS PRINCIPAL
         OFFICE AT BANSERIA, M.B. ROAD, TANGLA, DIST- UDALGURI, ASSAM)),
         HOUSE NO . 19, NANDAN PATH, 4TH BYE LANE, BHETAPARA, GUWAHATI-
         781028, DIST-KAMRUP (M), ASSAM AND IS REPRESENTED BY
         AUTHORIZED SIGNATORY/REPRESENTATIVE SHRI A.K. KHANDAKAR, R/O
         HOUSE NO . 19, NANDAN PATH, 4TH BYE LANE, BHETAPARA, GUWAHATI-
         781028, DIST- KAMRUP (M), ASSAM.



         VERSUS

         THE UNION OF INDIA AND 4 ORS
         REPRESENTED BY THE SECRETARY, MINISTRY OF RAILWAYS, RAILWAY
         BOARD, RAILWAY BHAWAN, NEW DELHI

         2:THE GENERAL MANAGER/CONSTRUCTION
          OFFICE OF THE GENERAL MANAGER/CON
          NORTH EAST FRONTIER RAILWAY
          MALIGAON
          GUWAHATI-781011

         3:THE CHIEF ENGINEER/CONTRUCTION-I
          NORTHEAST FRONTIER RAILWAY
          MALIGAON
          GUWAHATI-781011

         4:THE DEPUTY CHIEF ENGINEER/CONTRUCTION-I
          NORTHEAST FRONTIER RAILWAY
                                                                       Page No.# 2/6

             MALIGAON
             GUWAHATI-781011

            5:THE DEPUTY CHIEF ENGINEER/CONTRUCTION-I
             N.F. RAILWAY
             LUMDIN

Advocate for the Petitioner   : MR G N SAHEWALLA, MS T J SAHEWALLA,MS G DUGAR,MR
M SAHEWALLA

Advocate for the Respondent : DY.S.G.I.,




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                           ORDER

13.06.2025 Heard Mr. M. Sahewalla, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC for the respondents.

2. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996.

3. The petitioner is a registered company under the Companies Act having its

registered office at House No. 19, Nandan Path, 4 th Bye Lane, Bhetapara, Guwahati-28.

4. Pursuant to a bid invited by the respondents, the petitioner-Company participated in a bid process by offering their bid. Thereafter, the petitioner- Company was awarded with the contract vide letter bearing No. W/362/CON/D- K/EMB/2017/07 dated 25.05.2018 and further authorized the petitioner to commence the work on the strength of the said letter. The description of the work is "Earthwork in bank & cutting, construction of minor brides, protection work and other related works from CH. 17.00 KM to 20.5 KM in connection with Page No.# 3/6

the Dimapur (Dhansiri)-kohima (Zubza) New Line Project".

5. It is submitted that the as per the said letter of acceptance, the petitioner was under the obligation to commence the work within 15 days reckoning from the date of issuance of the letter of acceptance and the work was to be completed within a period of 18 months and further directed to submit Performance Guarantee in the form of Bank Guarantee amounting to Rs. 74,83,836/-. The petitioner duly submitted its bank guarantee.

6. It is submitted that though as per the Letter of Acceptance, the stipulated completion period was 18 months i.e. by 24.11.2019, the respondents after substantially delay executed the contract agreement bearing Contract Agreement No. CON/D-K/2471 dated 07.09.2018, the petitioner was subjected to precarious financial condition inasmuch as the petitioner was unable to effectively arrange working capital from financial institution, which adversely affected the progress of work.

7. It is submitted that though the Letter of Acceptance was issued on 25.05.2018, the petitioner was restraint from achieving the desired progress due to adverse working capital on account of non-execution of the Contract Agreement for a substantial period of almost 4 month. It is submitted that inspite of all sincere attempts and efforts, the petitioner was restraint from completing the work within the scheduled completion period, the respondents requested the petitioner to submit the application seeking extension of time. Accordingly, the petitioner applied for extension and the respondents accorded the permission to the petitioner to complete its work upto 31.05.2020. It is submitted that the petitioner was restrained from executing the work at site from around November, 2019 to February, 2020 due to the ongoing law and order situation arising out of NRC and CAA.

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8. It is submitted that the petitioner was executing the work, all of a sudden because of the outbreak of the COVID-19 Pandemic and the consequential declaration of the nationwide lockdown in March 2020 by the Government of India, the petitioner was totally restraint from executing the work. It is submitted that the petitioner was again granted the extension upto 30.11.2020 & 31.05.2021 respectively of which the petitioner was not possible on any account requested the respondents to foreclosure of the Contract Agreement and release the petitioner as well as petitioner's pending bill. It is further submitted that the petitioner was also awarded another tender and the respondents executed contract agreement bearing No. Con/D-K/2449 dated 19.06.2018 with the petitioner and during execution of work, the petitioner was restraint from work in similar reason and the petitioner requested the respondents for foreclosure of the said contract agreement and the respondents duly foreclosed. After expiry of the contractual tenure on 31.05.2021, the contract ceases to be in force and the respondents were bound to release the pending dues, security deposit and release the Performance Guarantee, the respondents failed to release the same to the petitioner. It is also submitted that the petitioner had approached the Court of Civil Judge (Sr. Div. No. 2), Kamrup (M) at Guwahati being Misc (Arbitration) Case No. 35/2021 under Section 9 of the Arbitration and Conciliation Act, 1996 praying for restraining the respondents from encashing the Bank Guarantees issued by the petitioner in connection with the work. The Civil Judge issued an interim injection restraining the respondents from encashing the performance Bank Guarantee.

9. The learned counsel for the parties have been heard. Pleadings on record have been carefully perused. The agreement executed by and between the petitioner and the respondent has also been perused.

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10. By order dated 31.08.2024 passed in W.P.(C) No. 1076/2024, this Court had earlier held that the question of jurisdiction of the arbitral Tribunal can be decided by the Tribunal itself. Referring to the Judgments rendered by the Apex Court, this Court held that the question to be examined by the referral Court is the existence of an arbitration agreement by and between the parties. Where there is no dispute as to the existence of an arbitration agreement, all other questions should be dealt with and decided by the Arbitrator/ the Arbitral Tribunal. This view of this Court is in accordance with the judgments rendered by the Apex Court. This position has been further clarified by the Apex Court in another Judgment in SBI General Insurance Vs. Krish Spinning, reported in (2024) SCC Online SC 1754.

11. The other question raised by the respondents are that the railways have maintained a curated panel and even assuming the matter is referred for arbitration, the Arbitrators are to be appointed as per procedure prescribed under the agreement and an arbitrator(s) are to be appointed from the curated panel maintained. This aspect of the matter has already been decided as the law is settled in this respect in view of the Judgment rendered by the Apex Court in Central Organization for Railway Electrification Vs. ECI SPIC SMO MCML (JV), reported in 2024 SCCOnline SC 3129, and other subsequent judgment like SBI General Insurance (Supra).

12. In that view of the matter, this Court is of the considered opinion that the arbitration petition should be allowed. The petitioner has been able to make out the case for issuance of orders for appointment of an Arbitrator on the failure of the respondents to appoint an Arbitrator when called upon do so by the Notice issued by the petitioner earlier.

13. Accordingly, under the powers of this Court under Section 11 of the Page No.# 6/6

Arbitration and Conciliation Act read with the Notification No. 29 of the Gauhati High Court, this Court appoints Mrs. Chaya Rani Goswami, Retired District & Sessions Judge, Assam is hereby appointed as an Arbitrator to arbitrate and decide on the disputes arising by and between the parties. The Arbitrator will also render appropriate finding on its jurisdiction in the event such a question is raised by the Railways. The appointment of the prospective Arbitrator is however, subject to the written declaration to be furnished by the learned prospective Arbitrator in terms of Section 12(1) of the Arbitration and Conciliation Act, 1996.

14. Copy of this order be placed by the Registry as well as by the parties before Mrs. Chaya Rani Goswami, Retired District & Sessions Judge, Assam and thereafter this appointment shall be confirmed upon receipt of a written declaration from the prospective arbitration shall be placed before the Court.

Let the matter be listed again on 26.06.2025.

JUDGE

Comparing Assistant