M/S. Kmc-Eci(Jv) Represented Through ... vs The State Of Jharkhand Through The ...
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Jharkhand High Court

M/S. Kmc-Eci(Jv) Represented Through ... vs The State Of Jharkhand Through The ... on 2 May, 2025

Author: Rajesh Shankar

Bench: Rajesh Shankar

                                                  2025:JHHC:13181




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    C.M.P. No. 99 of 2025
                                 ---

M/s. KMC-ECI(JV) represented through its authorized signatory Peddu Srinivasa Rao son of Late Peddu Venkata Ratnam, the authorized representative of the petitioner company having its principal office at Corporate House, Shilpa Homes Layout, Gachibowli, Hyderabad (Telangana) and having its corporate office at KMC-ECI (JV), Bukru, P.O.& P.S. - Keredari, Hazaribagh ... ... Petitioner Versus

1. The State of Jharkhand through the Principal Secretary, State Highway Authority of Jharkhand, , Ranchi

2. The State Highway Authority of Jharkhand (SHAJ), Ranchi represented by its Chief Executive Officer

3. The Principal Secretary, the State Highway Authority of Jharkhand (SHAJ), Ranchi

4. The Chief Executive Officer, the State Highway Authority of Jharkhand (SHAJ), Ranchi

5. The Member Technical, the State Highway Authority of Jharkhand (SHAJ), Ranchi

6. The Engineer-in-Chief, the State Highway Authority of Jharkhand (SHAJ), Ranchi

7. The Central Bank of India represented by its Senior Branch Manager, having its office at Corporate Finance Branch, Bank Street, P.O. & P.S. - Koti, District- Hyderabad (Telangana)

8. IDBI Bank, represented by its Senior Branch Manager having its office at Specialized Corporate Branch, P.O. & P.S.- Chapel Road, District- Hyderabad (Telangana) .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Amit Kumar Das, Advocate For the Respondents :

Order No. 10 Dated: 02.05.2025

The present Civil Miscellaneous Petition has been preferred

by the petitioner seeking clarification of the order dated

15.05.2018 passed by this court in W.P.(C) No. 7190 of 2017 to

the effect that the liberty granted to the petitioner in Paragraph

nos. 32, 33 and 35 of the said order to invoke arbitration clause

of the EPC contract agreement i.e., clause- 26 was in relation to

all grievances raised by it including that of termination of its

contract. It has also been prayed to clarify that the findings as

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well as the factual observations made by this Court in the said

order would not prejudice the case of the parties before the

learned Arbitral Tribunal.

2. Learned counsel for the petitioner submits that the petitioner

had preferred writ petition being W.P.(C) No. 7190 of 2017

challenging the termination order bearing no. 1668 dated

07.12.2017 whereby the State Highways Authority of Jharkhand

(in short, "SHAJ") had taken decision to terminate its contract and

had also prayed for quashing the letter no. 1670 dated

07.12.2017 issued under the signature of the Member (Technical),

SHAJ whereby the Senior Manager, Central Bank of India,

Corporate Finance Branch, Bank Street, Koti Hyderabad had been

directed to encash the bank guarantee deposited by the petitioner

towards the performance security. The said writ petition was

disposed of by this court vide order dated 15.05.2018.

3. It is further submitted that the order dated 15.05.2018

passed by this court in W.P.(C) No. 7190 of 2017 had intended to

grant liberty to the petitioner to raise all the contentions before

the learned Arbitral Tribunal including the question of termination

of contract which would be evident from reading of paragraph

nos. 32 and 35 of the said order, however a doubt has cropped up

from paragraph- 33 of the said order in which the liberty granted

to the petitioner seems to be only in relation to encashment of

the performance bank guarantee deposited by it.

4. It is also submitted that the question with respect to legality

of encashment of the performance security cannot be decided by

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the learned Arbitral Tribunal unless it also decides the legality of

the termination of contract.

5. Learned counsel for the petitioner further submits that the

petitioner had filed an application being Arbitration Application

No. 11 of 2020 before this Court under Section 11(6) of the

Arbitration and Conciliation Act, 1996 seeking direction to appoint

Arbitrator for resolution of the dispute which was disposed of by a

co-ordinate Bench of this Court vide order dated 23.06.2022

appointing second Arbitrator for resolution of dispute as well as

providing liberty to the parties to raise all the legal issues for

consideration by the Arbitrators in accordance with law which

invariably included the dispute qua termination of contract.

6. It is also submitted that on the one hand, the respondent -

SHAJ has tried to justify the validity of the termination of contract

before the Arbitral Tribunal, however on the other hand, it has

claimed that the matter of termination of contract has already

been decided by this Court in its order dated 15.05.2018 passed

in W.P.(C) No. 7190 of 2017. Thus, the petitioner has been

constrained to approach this Court seeking clarification of the

order dated 15.05.2018. It is expedient in the interest of justice

that the order dated 15.05.2018 passed by this court in W.P.(C)

No. 7190 of 2017 should suitably be clarified to the effect that the

liberty granted to the petitioner in paragraph nos. 32 and 33 of

the said order to invoke arbitration is in relation to all the

grievances of the petitioner including that of termination of

contract.

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7. Heard learned counsel for the petitioner and perused the

order dated 15.05.2018 passed by this Court in W.P.(C) No. 7190

of 2017, the relevant part of which reads as under: -

"32. Under the aforesaid circumstances, I am of the considered view that after taking decision for termination of contract agreement, the respondent- SHAJ has rightly invoked Clause 23.6.1 of the EPC contract agreement and has encashed/appropriated the performance security as a predetermined compensation. If the petitioner has any grievance, it may invoke Clause 26 of the EPC contract agreement.

33. In view of the discussions made herein above, the present writ petition is disposed of with the following observations:

(i) No interference is warranted with the order of termination contained in Memo no. 1668 dated 07.12.2017 as the same does not suffer from any arbitrariness, unreasonableness, irrationality, biasness and mala fide.

(ii) So far the order of encashment of performance security deposited by the petitioner is concerned, the same is within the competence of the respondent-SHAJ. However, the petitioner is at liberty to invoke clause 26 of the EPC contract agreement."

8. Generally, Civil Miscellaneous Petition (C.M.P.) is filed for

correction of typographical error or omission of a word, etc. in a

judgment or order, however if such a petition is filed seeking

review or modification of an order or judgment, the same cannot

be entertained. The present C.M.P. has been filed seeking

clarification of the order dated 15.05.2018 passed in W.P.(C) No.

7190 of 2017 not because any such clarification is found

necessary, rather the applicant actually wants a review of the

order dated 15.05.2018 passed in W.P.(C) No. 7190 of 2017. I am

of the view that a party cannot be permitted to claim review in

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the garb of filing a Civil Miscellaneous Petition. Undoubtedly, Civil

Miscellaneous Petition seeking clarification or modification of the

order or judgment touching the merit of the matter is not

maintainable. If any error is apparent on the face of the record,

an application for review can be filed. What cannot be done

directly cannot be permitted to be done indirectly.

9. On perusal of the prayer made in the present C.M.P., it

appears that in the garb of clarification, the petitioner in fact has

sought review of the order dated 15.05.2018 passed in W.P.(C)

No. 7190 of 2017 contending that vide said order, the petitioner

has been granted liberty to invoke arbitration clause of the EPC

contract agreement in relation to all grievances of the petitioner

including termination of contract. The petitioner has further

sought clarification that the findings given by this court in the

said order should not prejudice the case of the parties before the

learned Tribunal. I am of the view that such kind of prayer

cannot be entertained by way of Civil Miscellaneous Petition.

10. Moreover, In the light of the order dated 15.05.2018, the

petitioner invoked the dispute resolution process as contained in

Clause 26 of the EPC Contract and by now the parties have led

their respective evidences in the arbitral proceeding and the

matter is at the stage of argument of the parties.

11. The present C.M.P has been filed on 29.11.2024 i.e., after

about more than six years from the date of order passed in the

aforesaid writ petition without giving any cogent explanation for

committing such an inordinate delay in filing the same. If the

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petitioner had any doubt in the said order, it should have promptly

approached this Court invoking appropriate jurisdiction. Hence, I

am of the view that the conduct of the petitioner is not bonafide,

rather the present C.M.P. appears to have been filed to delay the

arbitral proceeding which certainly amounts to abuse of the

process of the Court.

12. Otherwise also, the matter is pending before the Arbitral

Tribunal which is competent enough to interpret the order dated

15.05.2018 passed by this Court in W.P.(C) No. 7190 of 2017.

13. The present C.M.P. is accordingly dismissed.

14. This Court takes serious note of the conduct of the petitioner

as it has consumed valuable time of the Court by filing this

frivolous petition. Such attitude of the petitioner is deprecated

and it deserves to be saddled with an exemplary cost.

15. Accordingly, the petitioner shall pay a cost of Rs.50,000/- in

favour of the Jharkhand State Legal Services Authority (JHALSA),

Ranchi within four weeks from today and shall file proof of the

same, failing which the office shall place this case before the

Bench to take appropriate action against it.

(Rajesh Shankar, J.) Ritesh/A.F.R.