Patna High Court
M/S Suraksha Diagnostic Pvt. Ltd vs The State Of Bihar And Ors on 1 December, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.7 of 2019
In
Civil Writ Jurisdiction Case No.15034 of 2014
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M/s Suraksha Diagnostic Pvt. Ltd. a Company incorporated under the
Companies Act having its registered Office at DD-18/1,Salt Lake City,Sector-
1,Kolkta-700091 through its Manager Legal namely Sri Sumit Das,aged about
36 years (Male),son of Sri Bishwaranjan Das,residenet of Vidyasagar,
Sarani,Blue Board Apartement,Sardar Para,Khirishtala, Rajpur,Sonepur,
South 24 Parganas,West Bengal-700150
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary,Department of Health and
Family Welfare,Govt. of Bihar,Patna
2. The Secretary, Health cum Executive Director, State Health Society, Bihar
through Secretary,Health cum Executive Director, State Health Society,
Bihar
3. The Secretary, Health cum Executive Director,State Health Society, Bihar
4. The State Programme Officer, Secretary, Health cum Executive Director,
State Health Society, Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ashish Giri, Adv.
For the State : Mr. Braj Bhushan Mishra, AC to AAG9
For the Health Society : Mr. Kishore Kumar Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL JUDGMENT
Date : 01-12-2021
I.A. No. 202 of 2019
This interlocutory application has been filed for
condonation of delay in filing the review petition against the
judgment and order dated 19.04.2016 passed in CWJC No. 15034 of
2014.
2. For the reasons stated in this interlocutory application,
the same is allowed and the delay in filing the review application is
hereby condoned.
Patna High Court C. REV. No.7 of 2019 dt.01-12-2021
Civil Review No.7 of 2019
3. Heard the parties.
4. The present review application has been filed against a part
of the order dated 19.04.2016 passed in CWJC No. 15034 of 2014
wherein, inter alia, the petitioner has been granted liberty to take
recourse to the provisions of the Bihar Public Works Contract
Disputes Arbitration Tribunal Act, 2008 ("the Act" for short) for
seeking appropriate remedy and redressal of its grievances relating to
invocation of bank guarantee.
5. Learned counsel for the petitioner submits that it was
inadvertently missed to be highlighted specifically that the dispute
between the parties arose at the pre-agreement stage and prior to
entering into the memorandum of agreement. As such, the matter did
not fall within the definition of "works contract" under Section 2(k)
of the Act, which reads as follows:-
"2(k) "Works contract" means a contract made by the
State Government or a public undertaking with any other
person for the execution of any of its works relating to
construction, repairs or maintenance of any building or
superstructure, dam, weir, canal, reservoir, tank, lake, road, all
types of bridge, culvert, factory or work shops or of such other
work of the State Government or, as the case may be, of the
public undertaking, as the State Government may, by
notification in the Official Gazette, specify and includes -
(i) a contract made for the supply of goods relating to
the execution of any of such works or for supply of any other
Patna High Court C. REV. No.7 of 2019 dt.01-12-2021
goods irrespective of whether it is required for any specific
project or work or any type of consultancy services/service
providers.
(ii) Contracts made for the supply of services relating
to the execution of any of such works; including consultancy
services for preparation of DPR's; supervision; project advisory,
quality assurance, Project Management or any other
management services.
(iii) Words and expressions used and not defined
in this Act, but defined in the Arbitration Act, shall have the
meanings assigned to them in the Arbitration Act."
6. It is thus submitted that the pre-condition for a works
contract, as defined above, is that there must be a contract between
the parties which, in the present case, has not been entered into. As
such, the petitioner has been relegated to a forum which has no
jurisdiction to entertain the instant dispute.
7. A counter affidavit in original has been filed on behalf of
the respondent State Health Society in Court which is placed on
record. However, there is nothing contained therein to controvert the
aforesaid submission made on behalf of the petitioner.
8. Having heard the parties, this Court finds merit in the
submission of the petitioner. The respondent State Health Society
does not dispute that there was no concluded contract between the
parties and the bank guarantee was invoked at the pre-agreement
stage itself. In this view of the matter, therefore, it cannot be said that
there was any existing works contract within the meaning of Section
Patna High Court C. REV. No.7 of 2019 dt.01-12-2021
2(k) of the Act in respect of which the Tribunal can exercise
jurisdiction. It further transpires that this Court took note of the
decision of the Hon'ble Division Bench in the case of Hindustan
Steel Works Construction Ltd. Vs. State of Bihar & Ors. [2009(2)
PLJR 909] wherein the petitioner had been permitted to approach the
Arbitrator under the Act but, however, that was a case in which a
concluded contract existed between the parties.
9. In the above view of the matter, the relevant part of the
judgment of this Court dated 19.04.2016 passed in CWJC No. 15034
of 2014 in which the petitioner has been granted liberty to take
recourse to the provision of the Bihar Public Works Contract
Disputes Arbitration Tribunal Act, 2008 for seeking appropriate
remedy and redressal of its grievances, is hereby recalled.
10. The review application stands disposed of.
11. Let the writ petition be accordingly listed before the
appropriate Bench according to roster.
(Vikash Jain, J)
rishi/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 03.12.2021
Transmission Date
