O.M.P./550/2012 of KSN ASSOCIATES Vs UNION OF INDIA & ORS

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By:AMULYA

subsequently paid [a ]sum [of ][Rs.15,00,972 ][based ][on the ][measurement ][of]successfully completed [works ][as ][on ][30th ][September ][20lL ][Nevertheless,]it is stated that on lltr' [May ][2012 ][a ][partial'payment ][of ][about ][Rs.2.64]crores was made while [withholding ][the ][legitimate ][outstanding ][and]payable amount of Rs.1 [crore ][approximately. ][An ][explanation ][was ][called]for from the Petitioner [for ][the delay ][in work which ][was ][responded ][to by]the Petitioner on [2nd ]March [20t2. ][The ][request made ][by ][the Petitioner ][by]letter dated 10th May [2OI2 ][for ][release ][of ][the part ][payment ][towards]materials brought [at the ][site was negatived ][by ][the ][Respondent ][on ][14th]May 2012. representation [was ][made ][on 1" ][June 2012 ][by ][the]petitioner..It is further stated that the Petitioner was informed [by'the ][site]supervisor that he had [been instructed ][by ][the ][Deputy ][General ][Manager,]Northern Railway [to ][stop ][the ][work ][at site stating ][that the ][contract ][stood]terminated. In the circumstances, [OMP ][No.550 ][of ][2012 ][under ][Section ][9]of the Act was [filed ][by ][the ][Petitioner, ][inter alia, ][to ][restrain ][the]Respondent from terminating [the ][agreement dated ][25th ][August ][2011 ][and]that the Respondent [should ][be ][restrained ][from ][all ][coercive ][and]consequential follow up action [till ][such ][time the ][disputes ][are ][resolved ][in]arbitration. The Petitioner [also prayed ][for ][being permitted ][to ][carry ][out]the planned works by [giving ][some ][additional ][time ][for ][carrying out ][the]non-scheduled works, [not ][forming ][part of the ][contract.]4. When the above [petition ][was ][first ][listed ][on ][8th June ][2012 ][this ][Court]

passed the following order:

"OMP No.550/2012 and IA No.ll [48212012]

Issue notice to the respondent, [returnable ][on ][18th ][June,]2012.

Notice will indicate that the [petition ][shall ][be taken ][up ][for]

grant of interim relief on the said [date. ][. ][Learned ][senior]counsel submits that even though [the ][prayer ][in ][the ][said]petition is indicative of the fact that [an ][injunction ][on]termination of contract is sought, [his real ][grievance ][is ][that]even though the contract is [not ][terminated, ][the ][respondents]are impeding execution of the [contract.]

As is obvious the two situations [cannot ][operate]

simultaneously. Respondents [will ][have ][to ][take ][an ][action ][one]way or the other. Needless to [say ][that any ][action taken ][by]respondents, which is contrary [to ][the terms of ][the ][contract,]can only be at its own Peril.

Dasti under the signatures [of ][Court ][Master."]

5. The above interirn order [was reiterated ][by the order ][of ][25th June ][2012.]

6. The Petitioner has filed [a second ][petition being OMP No.563 ][of ][2012]

for restraining the Railways [from finalizing ][the ][award ][of ][the ][contract ][of]

the balance work and to [permit ][the ][Petitioner ][to ][car-Iy ][out ][and ][complete]

the balance work.

7. In the said petition on [25th ][June 2012, ][this Court ][passed ][the ][following]

order:

"1. i\&.Sandeep Sethi, Senior [counsel ][appearing ][for ][the]petitioner submits that without terminating [the ][contract ][of]the petitioner, the respondents have [already ][invited ][the ][bids,]which are to be opened on29" [June, ][2012.]

2. This court has already observed [in ][its ][order ][dated ][8th ]June, zolzthat any action [taken ][by ][the ][respondents, ][which]is contrary to the terms of the [contract, can ][only ][be at ][its]own peril. In these circumstances, [no ][fuilher ][directions ][are]required for in the matter.

3. Renotiff on 2nd July, [2012 before the ][Roster ][Bench.]

foday Mr. Sethi, learned Senior Mr. Sethi, learned Senior Sethi, learned Senior [[counsel ][for ][the ][Petitioner ][submitted]][[for ][the ][Petitioner ][submitted]][[the ][Petitioner ][submitted]][[Petitioner ][submitted]][[submitted]]

8.foday Mr. Sethi, learned Senior Mr. Sethi, learned Senior Sethi, learned Senior [[counsel ][for ][the ][Petitioner ][submitted]][[for ][the ][Petitioner ][submitted]][[the ][Petitioner ][submitted]][[Petitioner ][submitted]][[submitted]]anoffer to the Railways to [complete ][the ][balance ][work ][in ][a ][time ][bound]manner. He fuither stated [that the ][Railways had ][received ][only ][one]responsive bid to the [fresh tender ][floated.]

9. Mr. Ashish Mohan, [learned ][counsel ][for ][the Railways on the ][other]hand clarified on instructions [that the Railways ][had received ][two ][bids]and were not inclined to [award the balance ][work ][to ][the ][Petitioner.]

10. It is not for this Court [to ][compel ][the ][Respondent ][to ][award ][the]balance work to the Petitioner. [In ][its ][reply ][filed ][in ][OMP ][No.550 ][of ][2012,]the Railways has adverted to [a ][number ][of ][circumstances ][about ][the]Petitioner's inability to [perform ][the ][contract and ][fulfill ][its ][obligation]thereunder. Without commenting [in ][any manner ][on the ][contention ][of]either pafi,this Court is of [the ][view ][that no further ][interim ][order ][other]than the one passed on 8th June2012 [in ][OMP ][No.550 ][of ][2012 ][and ][further]reiterated in the order dated [25th ][June ][2Ol2 in ][the ][said ][OMP ][as ][well ][as ][in]OMP No.563 of 2012 is [called ][for. ][It ][is ][ordered accordingly. ][It ][will]however be open to the [parties ][to ][seek appropriate ][interim ][reliefs]OMP Nos.550 of 2012 urtd [563 ][of 2012]Page 5 of 6

including the variation or modification [of ][the ][said ][interim ][order ][before]the learned Arbitrator [under Section ][I7 ][of ][the ][Act. It ][is clarified ][that ][no]observatibn made by this [Court ][in ][the ][present ][order ][or ][any other ][order]passed in the petitions are to [be ][construed ][as ][expression ][of ][the ][view ][of]the Court on the merits [or ][on ][the contentions ][of ][either parfy.]

1 1. The petitions [afe ][disposed ][of ][in ][the ][above terms, ][but ][in ][the]circumstances with no orders [as ][to ]costs. \l--l--

\l--l--

July 02,2012s.pal

S. MURALIDHAR, [J.]