State Of Manipur & Ors vs M/S Simplex Project Ltd
2021 Latest Caselaw 5 Mani

Yumkham Rother

Digitally signed by
Yumkham Rother
Date: 2021.01.15
11:07:01 +05'30'
                                                                                 Item No. 1

                      WA No. 39 of 2020


                      State of Manipur & Ors                            ....Appellants

                                 -Versus-

                      M/s Simplex Project Ltd                           ....Respondent

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH (Through Video Conferencing)

13.01.2021

Heard Mr. M. Hemchandra, learned senior counsel assisted by Mr. Juno Rahman, learned counsel for the appellants. Also heard Mr. S. D Singh, learned senior counsel assisted by Mr. T. Momo, learned counsel for the respondent, Mr. N. Kumarjit, learned AG, Manipur assisted by Mr. H. Lenin, learned Addl. AG, Manipur. and Mr. P. Vaiphei, Additional Chief Secretary (Works), Government of Manipur.

The respondents/writ petitioners filed a writ petition being WP(C) No. 32 of 2020 challenging the NIT dated 28-12-2019 issued by the Public Works Department, Government of Manipur. It was the case of the respondents/writ petitioners that the Public Works Department, Government of Manipur had issued an NIT

dated 18-2-2010 for constructions of Capital Complex (Civil Secretariat Component at Mantripukhri, Imphal). The respondents being eligible had participate in the bid and was successful in getting the works. The letter of Intent dated 5-10-2010 was issued in favor of the petitioner and the period of execution of works was fixed at 36 (thirty-six) months from the date of execution of the Agreement between the parties. The Agreement was signed on 18-10- 2010 and accordingly, the original period for execution of works was scheduled to expire on 17-10-2013. After fulfilling all the terms and conditions, the respondents proceeded with the works. However, there were some difficulties due to non-availability of drawings, changes in specifications and other connected works due to which the work could not be completed within the prescribed period of 3 (three) years. The respondents therefore made an application for extension of time as provided under the contract. Thereafter, as there was extra works to be executed, the contract value was also increased to the tune of Rs. 350 crores. There was some dispute between the respondents and the appellants with regard to payment of bills and as a result there were communications between the respondents and the appellants. In the meantime, the respondents came across a news item in the local newspaper that coercive action would be taken against the respondents and therefore, being aggrieved, the respondents filed an Arbitration Petition being Art. Pet. (J2) No. 1 of 2018 before

this Court and this Court by order dated 8-10-2018 directed status quo be maintained by the parties. During the pendency of the Arbitration Petition, a meeting was held between the parties to resolve the issue amicably and the appellants accordingly withdrew the termination letter dated 27-9-2018 with the condition that work should be completed by February, 2019 and the performance Bank Guarantee be revalidated on or before 6-11-2018. The respondent also wrote a letter dated 11-11-2018 requesting the appellants to grant extension up to 30-06-2019 and also to comply with the terms of the MOU dated 27-10-2018 by releasing the payments and maintaining cash flow in the project for its timely completion. The Arbitration Petition was also disposed of on 12-10-2018 recording the terms of the minutes of the meeting as agreed between the parties and the withdrawal of the termination order.

It was also alleged in the writ petition that the appellants failed to act as per the MOU dated 27-10-2018 and instead asked the respondents to complete the works of 3 (three) blocks. A Show Cause Notice dated 4-6-2019 was also issued apprehending that the work would not be completed by the respondents within the time agreed. Another Show Cause Notice dated 18-9-2019 was also issued to which the respondents replied on 25-9-2019 stating that the delay was not attributable to them. A further Show Cause Notice dated 17-10-2019 was issued to which the respondents replied on 25-10-2019 highlighting various

reasons causing the delay. However, the appellants in arbitrary manner terminated the contract by letter dated 2- 11-2019.

Thereafter, the appellants issued the NIT dated 28-12-2019 for execution of the balance and additional work arising out of the contract. Being aggrieved, the respondents filed WP(C) No. 32 of 2020.

Learned Single Judge after hearing the parties and on consideration of the facts and circumstances of the case disposed of WP(C) No. 32 of 2020 by Judgment and Order dated 6-3-2020 allowing the writ petition in part and quashing the NIT dated 28-12-2019 along with the following directions:

"[10] For the reasons stated hereinabove, the instant writ petition is allowed in part and the NIT dated 28-12-2019 (date wrongly typed as 28-01-2019) is quashed and set aside with the following directions:

(a) The respondents and in particular, the respondent No. 3 shall carry out the measurement of the balance work of the project called "Construction of Capital Complex (Civil Secretariat Component) at Mantripukhri, Imphal" which remains incomplete at the site within a week from the date of receipt of a copy of this judgment and order.

(b) The respondents shall inform the petitioner, in advance, about the date and time on which the measurement of the balance work will be commenced;

(c) The petitioner shall extend full co-operation to the respondents in the measurement of the balance work and in the event of the full co- operation not being extended by the petitioner

without any cogent reason, the respondents ae at liberty to proceed with the measurement of the balance work in the absence of the petitioner;

(d) After the measurement of the balance work being carried out by the respondents in the manner as stated above, the petitioner shall remove all its belongings including the machineries, consumable items etc. within a period of fifteen days from the date of completion of the measurement of the balance work and shall not disturb the balance work being undertaken by any person duly appointed by the respondents.

(e) After the measurement of the balance work being ascertained and determined by the respondents, it is open to them to issue a fresh NIT in respect of the balance work so ascertained and determined;

(f) Keeping in mind the importance and the requirement of the secretariat building in the interest of the general public, an endeavor shall be made by the respondents to ensure that the balance work is completed with a reasonable time."

Being aggrieved with the Judgment and Order dated 6-3-2020, the present appeal has been filed by the Government of Manipur as appellants.

In the meantime, several misc cases were filed by the State of Manipur as well as M/S Simplex Projects Ltd. After considering the matter and taking into consideration that the construction of Manipur Civil Secretariat involves public interest and of great importance directed the parties to have a joint measurement and complete the process at the earliest but not later than 3 rd

November, 2020 by an order dated 16-10-2020 passed in MC(WA) No. 51 of 2020. There were some difficulties in completion of the joint measurement and therefore, this Court by another order dated 23-11-2020 directed the parties to have another joint measurement along with two senior officers from the Central Public Works Department preferably in the rank of an Executive Engineer on 4th and 5th December, 2020 along with other observations. The parties undertook the joint measurement and a Report to that effect was submitted before this Court by way of an affidavit dated 16th December, 2020. The respondents/M/S Simplex Projects Ltd. also filed a misc case being MC(WA) No. 74 of 2020. The relevant paragraphs of the said misc case are reproduced herein below:

"12. That in pursuance to the direction passed by this Hon'ble Court, the respondents' team led by Shri Suman Ghosh (Team Leader) and otehr six other members namely, Shri Abhijit Roy(Expert), Shri Sandip Guha (Expert), Shri Rishikant Irom, Asst. Engieer (Electrical) Shri Lal Muni Singh, Manager Civil (Q.S & Bukkubg), Shri Ajay Kumar, Sr. Civil Engineer and Shri Anand Kumar Dwivedi, Sr. Accountant had reached the concerned site on 04-12-2020 and had joined the PWD Department in carrying out the Joint Measurement of the balance work of the project namely, "Construction of Capital Complex(Civil Secretariat Component) at Mantripukhri, Imphal.

13. That, since the task of carrying of the Joint Measurement would not be completed on 04-12-2020, the same was continued on 05-12-2020. However, the joint measurement being could not be completed as the entire task would require more time and it is estimated that the same can be completed only when the measurement is done for more than 15 to 20 days. On the said dates, only the one part of the measurement (Ministerial Block) of

the project "Construction of Capital Complex (Civil Secretariat Component) at Mantripukhri, Imphal would be done and the same is yet to be completed. The measurement works of the South & North Block of the said project is yet to commence."

After considering all the matters and keeping in mind the public importance with regard to the completion of Manipur Civil Secretariat , we had directed the parties to go for a joint measurement as already stated herein above. The basic idea of this Court was to settle the matter as early as possible so that the appellants/Government of Manipur can proceed with the construction of the remaining portion of the Manipur Civil Secretariat.

Today, while hearing the matter, learned AG, Manipur submits that the Government of Manipur is ready to proceed with another Joint measurement and thereafter finally settle the issue with the respondents/M/S Simplex Projects Ltd. and ensure that the construction of Manipur Civil Secretariat is not delayed. Mr. S.D Singh, learned senior counsel appearing for the respondents also submits that they are also ready to have a final joint measurement and complete the process at the earliest.

Taking into consideration the submissions made by the parties, we are of the considered opinion that there is no purpose to keep this writ appeal pending and accordingly, we dispose of this writ appeal directing the parties to have a final joint measurement from 18th January, 2021 and complete the same at the earliest but not later than one week from 18th January, 2021. The State respondents are also directed to secure the whole new

Secretariat building in order to ensure that there is no interference from any quarter and the joint measurement is undertaken and completed peacefully. The State appellants shall also provide adequate security to the representatives of the respondents/M/S Simplex Projects Ltd. The State appellants are therefore directed to ensure the presence of two senior officers from the Central Public Works Department preferably in the rank of Executive Engineer from 18th January, 2021 till the completion of the measurement. We further direct that all the representatives of the parties including the two senior officers from the Central Public Works Department should sign on every page of the joint measurement. After completion of the joint measurement, liberty is given to the State appellants to proceed with the construction of the Manipur Civil Secretariat Complex by following all the required formalities and procedures as provided by law.

With the above observations and directions, writ appeal stands disposed of.

Furnish a copy of this order to the learned counsel appearing for all the parties through their respective e-mails.

                     JUDGE                           JUDGE

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