Gujarat High Court

M/S Backbone Project Ltd vs Sardar Sarovar Narmada Nigam Ltd on 20 April, 2022

Bench: Ashutosh J. Shastri

 C/SCA/19500/2021                                  CAV JUDGMENT DATED: 20/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


           R/SPECIAL CIVIL APPLICATION NO. 19500 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

and

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                               Sd/-

==================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================== M/S BACKBONE PROJECT LTD.

Versus SARDAR SAROVAR NARMADA NIGAM LTD.

================================================== Appearance:

MR. JAIMIN R. DAVE (7022) for the Petitioner(s) No. 1 MR. S M DAVE (11268) for the Petitioner(s) No.1 MR. PRIYANK S DAVE (9465) for the Petitioner(s) 1

MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MR. K.M.ANTANI,

==================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 20/04/2022

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

[1] The petitioner by way of the this petition under Article 226

of the Constitution of India is challenging the legality and validity

of the decisions taken by respondent authority dated

21.12.2019, 08.04.2021 and 28.06.2021 and consequently

sought for release of an amount of Rs.74,29,134/-. To be precise

prayers sought for reads as under:-

"8.a. Your LORDSHIPS may be pleased to allow this petition;

b. YOUR LORDSHIP may be pleased quash and set aside the decision taken by the Respondent vide letter dated 21.12.2019, 08.04.2021 and 28.06.2021

c. YOUR LORDSHIP may be pleased direct the Respondent to consider the claim of the Petitioner independent of undertaking dated 13.01.2006 and direct Respondent to release an amount of Rs.74,29,134/- (Rupees Seventy-Four Lacs Twenty-Nine Thousand One Hundred Thirty-Four);

d. any other and further relief deemed just and proper be granted in the interest of justice;

e. to provide for the cost of this petition."

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[2] The background of the facts leading to the rise of petition is

that petitioner is a company incorporated under the provisions of

the Companies Act, 1956 and being a "juristic person" has

invoked extraordinary jurisdiction of this Court. The respondent

floated a tender during April, 1999 for the work of Constructing

Minors (Earthwork, Brick Lining, Structures) and Road of

Distributaries for Block No. 9A5 Package-I (which would refer as

"the said work" for the sake of brevity). The said tender work

was for a total consideration of Rs.7,03,78,267/- which came to

be accepted by respondent authority by issuing a letter of intent

dated 05.05.2000 and thereby the respondent authority called

upon the petitioner to execute an agreement and to deposit an

amount towards security deposit. On 12.06.2000, an agreement

came to be executed bearing No. SSP/B-2/7 of 2001-2002 and as

per the requirement upon deposit of security amount the Work

Order also came to be issued on 29.06.2000. Petitioner pursuant

to it mobilized the manpower and machinery to complete the

work within the time scheduled as prescribed under the contract.

However, delay has occasioned on account of various

circumstances and the work ultimately could not be completed

within stipulated time.

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[2.1] It is the case of the petitioner that respondent herein as a

result of which decided to withdraw remaining tender work from

the petitioner to assign the same to third party at the risk and

cost of the petitioner and to that effect a letter was

communicated to the petitioner on 12.08.2005. Petitioner

requested the respondent vide letter dated 08.10.2005 to revoke

the decision as it was inclined to carryout the remaining portion

of work. Later on, the said request was accepted by respondent

authority and permitted the petitioner to complete the remaining

tender work as intimated by communication dated 01.12.2005

subject to the condition that petitioner would not claim price

escalation during the period of completion of remaining tender

work after the original date of completion under the contract. So

much so, petitioner was asked to furnish an undertaking to that

effect which also came to be forwarded and later on despite

resistance and obstruction of the farmers / landowners and all

other contingencies the work was processed but on account of

the said circumstances vide letter dated 15.01.2007, the

petitioner was constrained to make a further request for

enlargement of time for completion of remaining portion of work.

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It was also requested that since the circumstances were not

related to the petitioner in completion of work and the delay has

occurred on account of respondent's default, petitioner

requested the respondent to consider the petitioner's request to

pay price escalation but finally on 04.06.2007 the respondent

agreed to grant an extension to the petitioner and according to

the petitioner also agreed to consider the request for price

escalation subject to furnishing the evidence. The said

circumstances, according to the petitioner, are reflected in

letters dated 15.01.2007 and 04.06.2007.

[2.2] It is further the case of the petitioner that surprisingly vide

communication dated 27.08.2007 the respondent terminated the

contract itself and informed the petitioner that final

measurement will commence on 10.09.2007 and to this, the

petitioner raised strong objection in the form of letter dated

10.09.2007 raising protest against the termination of contract

and sought for release of the outstanding payment along with

price escalation. In response to this, vide letter dated

06.02.2010, the respondent proposed to debar the petitioner

from all its tender works as a result of this, a specific objection

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

has been raised against such proposed action of debarring vide

detail communication dated 08.02.2010 and also incidentally

requested to grant an opportunity of hearing before taking any

action in that direction.

[2.3] It is further the case of the petitioner that on 24.02.2010,

the respondent called upon the petitioner to attend the meeting

with the Joint Managing Director (Finance) on 25.05.2010. The

petitioner remained present and voiced out the grievances

before the authority and in the said meeting, the Deputy General

Manager and the Chief Engineer, Canals-1 were also present and

they, according to petitioner, have accepted that there was some

delay on the part of respondent in providing structure drawings

and providing land to the petitioner and also accepted that they

could not provide requisite borrow areas to the petitioner due to

non-availability. The said meeting resulted into an execution of

Supplementary Contract Agreement dated 15.03.2010 and in the

said agreement also it was specifically agreed, according to the

petitioner, that balance payment for the work executed will be

paid as per the original tender rate with price escalation at

frozen indices of April 2007. According to the petitioner, it was

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also agreed that payment of additional structures of 29 numbers

and borrow area excavation shall also be paid as per the SOR

2008-09 and as such the respondent became liable to pay the

price escalation, as indicated above. The petitioner has

submitted that even work completion certificate was also issued

on 31.12.2010 indicating satisfaction about the work which was

carried out.

[2.4] It is further the case of the petitioner that vide letter dated

16.05.2011, the petitioner claimed specifically the price

escalation as per the Supplementary Contract Agreement and

also claimed the payment of difference of star rate of cement

and steel during the said period in view of Clause 57 of the

contract amounting to Rs.12,14,484/-. Several representations

have been made in this regard to the respondent but the

respondent refused to release the payment of price escalation,

even as per the contract and went on repeating by indicating

that by virtue of such undertaking dated 13.01.2006 the request

is not possible to be accepted. The detailed representations

have been made time and again in this regard by the petitioner

clarifying the entire situation that the undertaking which was

already given was in respect of a different situation but by virtue

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

of fresh agreement the request deserves to be considered but

respondent once again vide communication dated 08.04.2021

rejected the request which has again led the petitioner to make a

further fresh representation on 15.05.2021 then again the

authority has not considered the case reiterated its early

decision in the from of fresh letter dated 28.06.2021. As a result

of this, petitioner has approached this Court by way of present

petition under Article 226 of the Constitution of the India.

[3] Pursuant to the notice having been issued, the respondent

authority has appeared, filed a detailed reply and as such upon

request of both the learned advocates appearing for the

respective side, the matter is taken up for final hearing.

[4] Mr. Jaimin R. Dave, learned advocate appearing for the

petitioner has vehemently contended that action of the

respondent authority is not only unjust and arbitrary but tainted

with mala fides. It has been contended that sole reason which

has been assigned for impugned action is that in the month of

January, 2006, the petitioner tendered an undertaking and as

such it is not entitled to seek release of price escalation and star

rate difference. It has been submitted that such undertaking has

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

no role to play specially when the fresh contract came to be

executed between parties to the proceedings and as such said

agreement having been executed and after certifying the

completion of work satisfactorily now when a difference of price

escalation is to be made the authority has gone back to the year

2006 and resorted to an undertaking which cannot be applied at

all and hence, the action initiated by respondent is absolutely

arbitrarily, unreasonable.

[4.1] It has been contended by Mr. Dave, learned advocate

appearing for the petitioner that it is not in dispute that work has

been completed long back in December, 2010 for which the

authority has also issued a certificate which is reflecting on page

159 (Annexure-M) and once having completed the work which

was allowed by the very same respondent authority it is now not

open for it to raise a plea of undertaking just to deny the benefit

and as such the action is unsustainable in the eye of law.

[4.2] Mr. Dave, learned advocate appearing for the petitioner

has further submitted that it is settled position of law that when

the action of authority is arbitrary, unreasonable and apparently

not sustainable the writ court always can exercise extraordinary

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

jurisdiction as held in catena of decisions and here is the case in

which the background of facts would clearly indicate that action

of authority under challenge is absolutely arbitrary. Hence, he

has prayed for issuance of writ in the context of relief which are

sought for in the petition.

[4.3] Mr. Dave, learned advocate has also submitted to

strengthen his argument by making a reference that undertaking

was given to the effect that petitioner will not seek nor raise

grievance with regard to price escalation during the period after

original date of completion and the said undertaking dated

13.01.2006 has lost its significance by virtue of Supplementary

Contract Agreement which came to be executed on 15.03.2010.

That being so apparently action is not sustainable. A further

reference is made to few of the conditions contained in

Supplementary Contract Agreement reflecting at page 155

(Annexure-L) and has submitted that a specific stipulation was

contained in the said contract that payment of balance work

executed will be paid as per the original tender rate with price

escalation at frozen indices of April 2007 and that being so, there

is hardly any reason for authority to relate back to the

undertaking of 2006. This supplementary contract is executed in

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the month of March, 2010 with aforesaid rider. Hence, the action

of the respondent in depriving the price escalation and star rate

difference to petitioner is ill-founded. Hence, he has prayed for

the reliefs sought for being granted in the interest of justice.

[4.4] Mr. Dave, learned advocate has submitted that the work

has been completed way back in the year 2010 and since then

petitioner has represented to respondent demanding payment

and only when the denial has taken place right to agitate has

accrued in favour of the petitioner. Mr. Dave, learned advocate

has submitted that there is a strong case existing in favour of the

petitioner.

[4.5] To substantiate his aforementioned brief contentions, Mr.

Dave, learned advocate appearing for the petitioner has referred

to few decisions, which are narrated hereunder:

(i) In the case of ABL International Ltd. and another

versus Export Credit Guarantee Corporation of

India Ltd. and others reported in (2004) 3 SCC 553.

(ii) In the case of Food Corporation of India and

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

another versus Seil Ltd. and others reported in

(2008) 3 SCC 440.

(iii) In the case of Surya Constructions versus State of

Uttar Pradesh and others reported in (2019) 16 SCC

(iv) In the case of Uttar Pradesh Power Transmission

Corporation Limited and another versus CG Power

and Industrial Solutions Limited and another

reported in (2021) 6 SCC 15.

(v) In the case of Unitech Limited and others versus

Telangana State Industrial Infrastructure

Corporation (TSIIC) and others reported in 2021

SCC OnLine SC 99.

By referring to aforesaid decisions, Mr. Dave has reiterated

his submission that action of respondent is arbitrary and has also

contended that instead of relegating the petitioner to any

alternative forum, writ court may exercise its discretion in

present peculiar background of fact.

C/SCA/19500/2021 CAV JUDGMENT DATED: 20/04/2022

[5] To counter the submissions made by Mr. Jaimin R. Dave,

learned advocate appearing for the petitioner, Ms. Manisha

Lavkumar Shah, learned Government Pleader assisted by Mr. K.

M. Antani, learned Assistant Government Pleader appearing on

behalf of the respondent authority has vehemently opposed the

petition inter alia contending that petition suffers from the vice

of delay and laches and on this count alone, petition is liable to

be dismissed. In addition to it, it has been submitted that work

entrusted to petitioner was of public importance but petitioner

had miserably failed in carrying out the work and respondent

was constrained to invoke the clauses contained in the contract

to terminate the said contract. According to learned

Government Pleader, the request was made by the petitioner not

to blacklist as a result of this, after considering the request of the

petitioner the work was allowed to be completed which was left

out and the supplementary contract was executed. It has been

submitted that petitioner had completed only 31.10% work up to

the stipulated date of completion and it is only upon the request

of petitioner a pragmatic view was taken and time limit was

extended up to 28.04.2007 and yet petitioner did not complete

the work which led the respondent to terminate the contract for

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non performance on 30.07.2007. It has been submitted that

after considering the overall circumstances and after granting a

personal hearing, a decision was taken then to allow the

petitioner to conclude the work vide decision dated 04.03.2010

and prior to it, it was deliberated in the meeting dated

25.02.2010 and it was made it clear to the petitioner that all

other terms and conditions of the original contract will remain

unchanged and other remaining work as per the original contract

is to be completed by the agency and as such the terms and

conditions discussed in the meeting having been accepted by the

petitioner and the original terms and conditions remained intact

with further addition, there is no absolute right of the petitioner

to agitate as if it is a fundamental right to seek a relief and that

too invoking Article 226 of the Constitution of India when

disputed question of facts are there.

[5.1] Learned Government Pleader has submitted that original

contract was of the year April, 1999 for estimated cost of

Rs.823.66 lakhs and it is on account of delay in not completing,

the respondent authority had to face an awkward situation and

time schedule of completion miserably was not maintained by

petitioner. It has been submitted that petition is brought in the

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year 2021 for the cause which has accrued allegedly way back in

the year 2010. On the contrary, 12 years back, the security

deposit has also been refunded to petitioner which is not in

dispute and all throughout petitioner has remained silent except

making representations which would in no way help the

petitioner to seek equitable relief by ignoring the principle of

delay and laches.

[5.2] Learned Government Pleader for the respondent authority

has then taken us to an exhaustive affidavit-in-reply filed by the

respondent pointing out the chronology of events right from

02.05.2000 till 13.09.2012. On the contrary, the final RA Bill was

released by the respondent on 25.07.2011 amounting to

Rs.67.92 lakhs and even security deposit was also refunded to

the petitioner way back on 10.05.2011 and 13.09.2012

respectively which position is not in dispute at all as the said

amounts have been acknowledged by the petitioner and as such

when there is such a huge unexplained delay to claim a relief in

the form of monetary benefits, extraordinary jurisdiction may not

be allowed to be invoked by the petitioner and it is settled

position of law that making of representation continuously will

not allowed a litigant to go out of a well recognized a principle of

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delay and laches and for that purpose. learned Government

Pleader has referred to a decision, which is in the case of

Karnataka Power Corporation Ltd. and another versus K.

Thangappan and another reported in (2006) 4 SCC 322.

[5.3] Learned Government Pleader for the respondent authority

has further submitted that even if the date of return of security

deposit is not to be treated as a date for reckoning the period

but then also, the decisions which have been taken where

merely a reiteration of the stand has already been taken by the

respondent authority and as such no case is made out by the

petitioner to maintain the present proceedings after huge

unexplained delay, as indicated above.

[5.4] Learned Government Pleader for the respondent authority

has also submitted that since the terms and conditions of the

original contract is maintained as it is and remained operative

and binding on the petitioner, petitioner instead of rushing to this

Court ought to have resorted to ventilate the grievance through

a specific mechanism provided under the original contract itself

and referred to Clause-29(b) which relates to the arbitration and

contends said fact finding authority, namely, the Tribunal can

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examine all the details about delay, applicability of undertaking

and examination of terms in the context of conduct of the

petitioner and it would be desirable for the petitioner to resort to

such proceedings to be initiated before the Arbitration Tribunal

or to seek any other remedy under civil law. As a result of this,

learned Government Pleader has prayed for dismissal of this

application.

[5.5] With respect to refund of security bill and payment of RA

Bill necessary particulars have been provided and brought to the

notice of this Court by way of an affidavit dated 19.03.2022

submitted on record and upon perusal, a request is made not to

entertain the petition as no case is made out calling for

interference.

[6] In rejoinder to this, Mr. Jaimin R. Dave, learned advocate

appearing for the petitioner has submitted that delay cannot be

attributed to the petitioner since the time to agitate or challenge

would arise only on cause of action being accrued and according

to him, the denial which has taken place in the recent time and

the limitation beguns to run and therefore delay and laches

principle would not come in the way of petitioner to claim the

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equitable relief. Hence, he has prayed that on the basis of the

undisputed factual position, the relief can be granted by this

Court instead of relegating the petitioner to an alternative forum,

in the interest of justice. No other submissions have been made

by learned advocates appearing for the respective parties.

[7] Having heard the learned advocates appearing for the

respective parties and having gone through the relevant material

on record, we are of the view that detailed chronology of events

which has commenced from the issue of work order in the year

2000 till the request of the petitioner to carry out the work to be

completed by extending opportunity to the petitioner requires to

be tabulated and same is tabulated hereinbelow:

 Date                  Description of event
 02.05.2000            The Petitioner was awarded the Tender
                       contract floated by the Respondent for

"work of constructing minors (Earthwork, Brick lining, Structures) and Road distributaries for Block No. 9A5 (P.I.) for Rs. 707.78 lacs.

05.05.2000 Letter of Intent issued by the Respondent to the Petitioner 12.06.2000 Petitioner and the Respondent executed the Agreement bearing no. SSP/B-2/7 of

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2000-2001.

It is stated that Tender Agreement provided for the stipulated time schedule within which the Petitioner was required to complete the work. Copy of the executed Tender Agreement is annexed herewith and marked as ANNEXURE - R-4.

As per this schedule the entre work was to be completed by the Petitioner by 28.06.2003 29.06.2000 Work Order was issued by the Executive Engineer, Narmada Project Canal Dn No. 1/5Jambusar vide letter No.-NPCD.1/5/AB- TC/WO/C/42 of 2000 Dated:- 29.06.2000.

30.06.2001 The Respondent addressed a letter to the Petitioner raising concern with respect to the progress of the work as the same did no commensurate with the stipulated time schedule provided in the Tender Agreement since only 6.46% of the work was executed even after a period of One year.

                   Copy of the letter dated 30.06.2001
                   addressed by the Respondent to the
                   Petitioner       is     annexed       herewith          and
                   marked as ANNEXURE R-5.
19.01.2002         The Respondent through various letters
13.03.2002         addressed          to    the   Petitioner           raised






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17.07.2002         concerns over the progress of the work

and also held meeting with the Petitioner with regard to the same. Despite Copy of the letter dated 19.01.2002, 13.03.2002 and 17.07.2002 addressed by the Respondent to the Petitioner is annexed herewith and marked as ANNEXURE R-6 (Colly).

07.12.2002         The Petitioner was required to complete
                   the work by 28.06.2003, however when
                   around 28.27% of the work was done by
                   December           2002,     the       Respondent
                   addressed a letter calling upon the
                   Petitioner for a meeting.
25.02.2004         It is pertinent to mention that the
09.04.2004         stipulated time period to complete the
                   work       already     stood        expired           on

28.06.2003, however, despite extension granted by the respondent, till February 2004, only 28.27% work was completed by the Petitioner. The Respondent raised grave concern over the same as the Petitioner had reneged from its assurance to start work from 14.02.2004 under its letter dated 05.02.2004.

Not only the Petitioner time and again failed to meet its commitment, but audaciously, the Petitioner even failed to

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remain present for the meetings called for by the Respondent.

Copy of the letters dated 25.02.2004 and 09.04.2004 addressed by the Respondent to the Petitioner is annexed herewith and marked ANNEXURE R- 7(Colly).

19.06.2004 Letter addressed by the Respondent to the Petitioner raising concern over only 31.16% work having been completed till such date and the complete failure of obligation of the Petitioner under the Tender contract for achieving the targeted progress. Hence, vide this letter the Respondent intimated the Petitioner that the extension of time sought by the Petitioner would be difficult in such circumstance.

Copy of the letter dated 19.06.2004 addressed by the Respondent to the Petitioner is annexed herewith and marked as ANNEXURE R-8.

12.10.2004 The Petitioner addressed a letter to the Respondent that it has a plan to complete the work by June-July 2005 and furnished an assurance to complete the work with the time frame proposed. Copy of the letter dated 12.10.2004 addressed by the Petitioner to the Respondent is annexed herewith and marked as ANNEXURE R-9.

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14.02.2005 After giving its assurance to complete the 10.03.2005 work by Jun-July 2005, the Petitioner vide letter dated 14.02.2005, surreptitiously, attempted to raise issues of purported obstructions to justify the impairment of the progress of the work. However, the contents of this letter were refuted by the Respondent vide its reply dated 10.03.2005.

Copy of the letter dated 14.02.2005 addressed by the Petitioner to the Respondent and Copy of the reply dated 10.03.2005 addressed by the Respondent to the Petitioner is annexed herewith and marked as ANNEXURE - 10(Colly).

08.04.2005 The Petitioner furnished an unconditional undertaking for extension of time to complete the work as per Clause 6, Page TC-6 of the Tender Contract stating that it shall accept and abide by the final decision of the Respondent regarding the request for extension of time.

Copy of the undertaking dated 08.04.2005 furnished by the Petitioner to the Respondent is annexed herewith and marked as ANNEXURE -11.

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30.06.2005 The Petitioner vide letter dated 25.08.2005 30.06.2005 sought extension of time to complete work till June 2006.

The Respondent vide letter dated 25.08.2005 intimated the Petitioner that the request for extension of time sought by the Petitioner was not genuine taking into consideration how the Petitioner had time and again reneged from its obligations under the Tender contract but also failed to complete the work even within the stipulated extended time frame. Hence, the Respondent vide this letter informed the Petitioner of its decision to take the possession of work and give to another contractor to complete the unexecuted work at the risk and cost of the Petitioner.

Copy of the letter dated 30.06.2005 addressed by the Petitioner to the Respondent and Copy of the letter dated 25.08.2005 addressed by the Respondent to the Petitioner is annexed herewith and marked as ANNEXURE - 12(Colly).

08.10.2005 The Petitioner addressed a letter to the Respondent admitting and acknowledging that despite extensions received from the Respondent it could not complete the

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work within the stipulated time due to reasons attributable to the Petitioner.

Relevant part of the letter is reproduced as under:

"1. Under the above reference, our tender for the subject work has been rescinded and tenders have been invited for the balance work, which are due to be received and opened on 11.10.2005 @ Vadodara. We are aware that we had approached you personally last year with a request to allow us to complete the above work and you were kind enough to consider the case and allowed us additional time to complete the above work, but unfortunately, we could not complete the same due to various reasons attributed to us only. ......"

The Petitioner vide this letter requested the Respondent to grant it another opportunity to complete the work within one Year against which it offered to give double the amount of Security deposit and further stated that if they are not able to achieve the desired progress at the end of 6 months, the Respondent may be at liberty to forfeit the first Bank

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Guarantee and if the work is not completed within One Year, the Bank Guarantee may also be forfeited and the work may be granted to another agency at its risk and cost.


                   Copy of the letter dated 8.10.2005 is
                   annexed         herewith         and      marked           as
                   ANNEXURE -13.
03.12.2005         Vide this letter the respondent accepted

the proposal of the Petitioner under letter dated 08.10.2005 subject to conditions including inter alia that the Petitioner shall seek, nor be entitled to price escalation during the period, after the original date of completion.


                   Copy of the letter dated 03.12.2005
                   addressed by the Respondent to the
                   Petitioner      is     annexed         herewith          and
                   marked ANNEXURE -14.
13.06.2006         The Petitioner in unequivocal terms,

furnished an undertaking to not seek, nor be entitled to price escalation during the period, after the original date of completion under the Tender contract.

Copy of the undertaking dated 13.06.2006 furnished by the Petitioner to

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the Respondent is annexed herewith and marked as ANNEXURE -15.

Year 2006-2010 It is submitted that even after 2006, the Petitioner reneged from its undertaking and assurance to complete the work within One Year, and it was after another gross delay of 4 years that the work was completed.

During this period of 2006 to 2010 various communication were addressed to the Petitioner raising concerns over the progress of the work, a copy of which is annexed herewith and marked as ANNEXURE -16 (COLLY).

15.03.2010 Further, a Supplementary Contract dated 15.03.2010 was executed between the Petitioner and the Respondent, the copy of which has been annexed by the Petitioner at Annexure L.

 25.07.2011           Final RA Bill was released                    by      the
 10.05.2011           Respondent amounting to Rs.67.92 Lakhs
 13.09.2012           dated 25.07.2011 and Security Deposit
                      refunded      to     the     Petitioner           dated
                      10.05.2011 and 13.09.2012.


[8]    The aforesaid sequence of events would clearly indicate

that work appears to have been completed only in the year 2010

i.e. on 31.12.2010, which was beyond the original time limit

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which was provided under the original contract. The final

Running Account Bill also came to be released by the respondent

amounting to Rs.67.92 lakhs way back in July, 2011 and so also

the security deposit came to be refunded to the petitioner on

10.05.2011 and 13.09.2012 itself. However, the present petition

has been filed in the year October, 2021. It may be true that

petitioner was continuously submitted representations to the

authority but the fact remains that entire period right from 2012

to 2021 has remained unexplained from the petitioner's side

except stating that petitioner was making repeated

representations. We find no cogent explanation for such

enormous delay which has taken place to agitate the price

escalation having been given though final RA Bill was already

released way back in July, 2011 and same is also acknowledged

by the petitioner without any demur. Petitioner was quite well

aware and it was within the knowledge of petitioner in the year

2011 itself about alleged non-payment of amount which is now

claimed in this petition.

[9] The Hon'ble Apex Court in the matter of Karnataka Power

Corporation Ltd. (Supra) on the principle of delay and laches has

held:

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"6.Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC

251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether

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or not to exercise such jurisdiction.

10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re- iterated in R.N. Bose's case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also)."

[10] From the aforesaid observations, we are of the considered

opinion that continuous representations or remaining in the lame

hope for all these years that one day authority will reconsider

would not absolve the petitioner from the vice of principle of

delay and laches. As a result of this, we are not in a position to

ignore the delay while arriving at final conclusion.

[11] In addition to this, a perusal of the terms of original

contract agreement and the supplementary contract if to be co-

related, the action may not be found to be so arbitrary which

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may allow us to invoke extraordinary jurisdiction to grant the

relief sought for. The original contract contains terms and

conditions indicates that such a mammoth project which was

entrusted to be undertaken by petitioner consisting of a huge

estimated cost of Rs.823.66 lakhs was to be completed within

the period mentioned in the original contract and said contract

specifically being understood by the petitioner after careful study

of the conditions of the contract specification, it is too late in the

day to retrace the terms agreed to. The original contract also

dealt with the issue related to indemnity as well as the

recoveries of the claim stipulated vide Clause 33 and by virtue of

said Clause 33, the respondent is entitled to appropriate set off

the claim. The said original contract also contains an arbitration

clause which indicates that in the event of any dispute or

difference arising out of or in relation to the contract shall be

referred to arbitration Tribunal for arbitration constituted under

the provisions of the Gujarat Public Works Contract Dispute

Arbitration Tribunal Act, 1992 and the decision of the Tribunal

would be final and as such the petitioner has neither disclosed

cogent reasons for inordinate delay in not approaching the Court

nor has disclosed as to why till now has not redressed his

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grievance though statutory mode under the contract itself was

available hence this conspicuous silence over this much period

also not impossible to be ignored by us.

[12] Now, coming to the terms of the undertaking dated

13.01.2006, reflected at page 138(A) given by petitioner indicate

that petitioner has agreed not to seek price escalation during the

period after the original date of completion. A perusal of

Supplementary Contract Agreement indicate that after giving the

opportunity and after considering the request of the petitioner,

the respondent has allowed the petitioner to complete the work

of on certain conditions and the said contract dated 15.03.2010

indicates that other terms and conditions of original contract will

remain unchanged and remaining work as per the original

contract is to be completed by the agency. The reliance on

Clause 3 and 4 of said agreement placed by the petitioner could

have well been agitated before an appropriate forum already

stipulated in the original terms as it is a disputed question of

fact. On perusal of the aforesaid circumstances prevailing on

record, we are of the opinion that petitioner was not remediless

and it could have agitated or made an attempt to ventilate the

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grievance after receiving back security deposit. However, after

receipt of the security deposit without any objection as well as

payment under the final Running Account Bill it is loo late in the

day to contend petitioner is entitled to escalated charged and

that too after 12 years. Hence, we are of the view that equitable

jurisdiction in this peculiar background does not deserve to be

exercised.

[13] In the light of aforesaid chronology of events, we made a

pointed query to the petitioner's counsel that what was the

reason for remaining silent right from the year 2012 till 2021, he

candidly submitted that he was unable to explain the delay

except stating that petitioner was pursuing its grievance before

respondent by submitting representations. Hence, we are of the

opinion that delay and laches staring on the face of it cannot be

given a go bye in present background.

[14] Hence, we are not inclined to exercise our extraordinary

jurisdiction to grant the reliefs sought for. There can be no

dispute at all about the proposition that Writ Court cannot

exercise the discretion despite the availability of statutory

mechanism to ventilate the grievance and further it is also not in

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dispute that no monetary relief can be granted in exercise of

jurisdiction under Article 226 of the Constitution of India.

However, it all depends upon fact of each case. In the instant

case we have specifically noticed that after accepting the refund

of security deposit and clearance of final RA Bill without any

demur after almost a decade an attempt is made by petitioner to

seek the relief though the petitioner was quite aware about the

fact that such grievance could have been raised at a relevant

point of time not only in view of the availability of specific forum

but also invoking the remedy under civil law. However, for

reasons undisclosed in the present proceedings the petitioner

has not availed the said alternative remedies and upon query

being raised about delay simple answer was that petitioner was

making continuous representations to respondent. This

explanation is not digestable in view of fact and as such when

these facts are quite apparent the decisions which have been

tried to be relied upon are not possible to be applied to the facts

on hand. Law of precedent is quite clear that one additional fact

may make a world of difference in applying the proposition.

Hence, having gone through the decision relied upon by the

petitioner at length, we are unable to extend our hands of justice

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to the petitioner. Hence, we refrain ourselves from exercising

extraordinary jurisdiction in the present proceedings in the light

of undisputed facts prevailing on record as discussed above.

[15] At this stage, we may refer to the law laid down by Hon'ble

Apex Court last in the matter of Uflex Limited versus

Government of Tamil Nadu and others reported in (2022) 1 SCC

165 in which it has been made clear that judicial review in

contractual matters has its own limitation and it is invoked to

prevent arbitrariness, irrationality, unreasonableness, bias and

mala fides. The purpose is to check whether the choice of

decision is made lawfully and not to check whether the choice of

decision is sound. Following observations contained in

paragraph 2 reads thus:-

"2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance."

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[16] In view of aforesaid observations, we are of the view that

petitioner has not made out any case of arbitrariness, mala fides

or unreasonableness which can be attributed to respondent.

Hence, we deem it proper not to exercise our extraordinary

jurisdiction at such a belated stage particularly when the delay

has not been explained with cause much less sufficient cause at

all. Hence, we deem it proper not to entertain this petition.

[17] However, while parting with the present judgment and

order, we may make it clear that dismissal of this petition may

not come in the way of petitioner ventilating its grievance in an

appropriate proceedings known to law and subject to just