M/S A.G.Construction v. The Chief Engineer And Administrator And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/139/2025 M/S. A. G. Construction Vs.

The Chief Engineer and Administrator and Others Mr. Gopala Binnu Kumar ... for the petitioner Mr .V.D.Sivabalan ... for the respondents March 17, 2025 [AKB] Item No.3 1.

The present writ petition has been filed, inter alia, challenging the Notice Inviting E-Tender dated 24.02.2025 issued by the respondent No.3 for the work of "Construction of RCC Jetty of Indian Coast Guard" at Arial Bay in Diglipur, North Andaman - Superstructure works which according to the petitioner are part and parcel of the agreement dated 14.12.2016 executed between the petitioner on one hand and the respondent No.1 on the other.

2.

The petitioner is a joint venture and had entered into a joint venture agreement on 19.08.2016 for the purpose of participating in a tender for the work "Construction of RCC Jetty of Indian Coast Guard" at Arial Bay in Diglipur, North Andaman. According to the petitioner on 02.08.2016 respondent No.3 had issued a notice inviting tender for the work of "Construction of RCC Jetty of Indian Coast Guard" at Arial Bay in

Diglipur, North Andaman. The petitioner otherwise being eligible had participated in the tender process and was found to be the lowest bidder whereupon by letter dated 10.10.2016 the respondent No.1 had informed the petitioner that the tender of the petitioner in respect of the aforesaid work had been accepted and accordingly was requested to furnish performance security for an amount of Rs. 35,94,000/-.

3.

The petitioner having complied with the terms as regards furnishing of performance security, and other terms, a contract was entered between the petitioner on the one hand and respondent No.1 on the other in respect of the work of "Construction of RCC Jetty of Indian Coast Guard" at Arial Bay in Diglipur, North Andaman. It is the petitioner's case that by reasons of diverse technical issues and hindrances, which were not on account of petitioner's fault the petitioner, was unable to commence the work in time or to complete the same in terms of the agreement. From time to time petitioner had notified same to the authorities whereupon due extension had been granted. Lastly by letter dated 20.06.2023 the time to complete the work was extended till 31.05.2025. 4.

Subsequently, on 22.08.2024 the respondent No. 1 had foreclosed/terminated the contract and had informed that the final settlement will be dealt in accordance with contract clause 3.61.1 by the Nodal Officer (EE, Rangat). As the contents of the letter was in complete departure of

the facts and the delay in execution of the work was attributable to the respondents, the petitioner by letter dated 06.09.2024 had claimed that the foreclosure of the agreement was not justified and requested that till finalization of disputes by the Disputes Redressal Committee the same be not closed.

5.

Records would reveal that Disputes Redressal Committee had held meetings. The petitioner not only participated before the Dispute Redressal Committee but had also filed its statement of claim. The petitioner is, however, aggrieved by the fact that during the pendency of the meeting before the Dispute Redressal Committee, a Notice Inviting Tender has been published by respondents on 24.02.2025 in respect of the self-same work.

6.

Mr. Gopala Binnu Kumar, learned advocate appearing in support of the petition would submit that since the issue as regards foreclosure is under challenge, the respondents ought not to have published the Notice Inviting Tender dated 24.02.2025. In response to a query made by the Court, he would submit that the petitioner had lodged a claim before the Dispute Redressal Committed which is in seisin of the matter. The disputes are yet to be adjudicated. In the circumstances the aforesaid he prays for stay of the Notice Inviting Tender dated 24.02.2025.

7.

Per contra, Mr. V.D.Sivabalan, learned advocate appearing on behalf of the respondents would submit that the foreclosure of the agreement had occasioned in response to a request made by the petitioner for foreclosure of the contract. By placing before this Court the communicated dated 30.11.2023 issued by the petitioner, which is taken on record, he would submit that petitioner itself had requested for closure of the contract and for release of the pending claims. By drawing attention of this court to the letter dated 22.08.2024, he would submit that the said letter makes a reference to the letter dated 30.11.2023 issued by the petitioner. According to him the issue which is pending consideration before the Dispute Redressal Committee is the settlement of the final bills in respect of the works already executed by the petitioner, limited to the foundation work only, the same has nothing to do with the foreclosure of the contract.

8.

According to him the Notice Inviting Tender dated 24.02.2025 has been published long back. By drawing attention to the Notice Inviting Tender he would submit that the technical bids have already been opened and a decision has already been taken to award the contract to the lowest tenderer (L1). At this stage no interference is called for.

9.

Heard learned advocates appearing for the respective parties and considered the materials on

records. Admittedly, in this case the petitioner had been awarded a contract. There appears to be certain disputes and differences in connection with execution of such contract. Although, the period of the contract was extended up to 31.05.2025 without prejudice of the respondents to recover compensation in accordance with provisions of the contract however, prior thereto on 28.08.2024 a decision had taken by the respondents to foreclose the contract. Apparently there appears to be no challenge to such foreclosure until filing of this writ petition.

10.

The proceeding before the Dispute Redressal Committee is however, limited to the settlement of claim, work done, interest on performance security and other claims etc, which are more fully detailed in page 71 of the writ petition. It appears that the respondents have also made a counter claim. I have also taken note of the fact that the petitioner by letter dated 30.11.2023 had itself, in the circumstances noted therein called for closure of the contract and for release of the pending bills along with final bill.

11.

I may note that apart from the procedure for dispute redressal as provided for in the contract, Mr. Kumar has also invited the attention of this Court to the contract which makes a reference to the General Conditions of the contract. The same has in fact been made part of the contract. As per clause 25 thereof, the

settlement of disputes is permissible by conciliation and arbitration. As to whether such clause can be ultimately enforced is matter which would require consideration as and when the petitioner invokes the same.

12.

Be that as it may, this matter requires consideration in the back drop of the fact that the contract between parties has already been foreclosed in the month of August, 2024 by letter dated 22.08.2024 and there had been no challenged to the same until filing of this writ petition which has been filed on 13.03.2025 that too after issuance of the Notice Inviting Tender dated 24.02.2025. The matter would also concern a decision on merits on the foreclosure of the contract which would also concern a decision on disputed questions of fact which ordinarily cannot be gone into in exercise of the extra ordinary writ jurisdiction.

13.

The ordinary remedy against the foreclosure is before a civil forum subject to any forum selection clause, as the same involves disputed questions of fact which cannot be conveniently dealt with by this Court in exercise of its extraordinary jurisdiction. Thus, the remedy, if any, of the petitioner lies in enforcing the terms of the contract, for settlement of its grievances and not by way of invoking the extraordinary jurisdiction of this Court. Further taking note of the fact that the Notice inviting Tender has already reached an advanced stage and a decision has already been taken to award the

contract in favour of the L1 bidder, it shall not be prudent at this stage to dislodge the authorities from carrying out the works covered under the tender which pertains to construction of RCC Jetty of Indian Coast Guard at Arial Bay in Diglipur, North Andaman, which otherwise also appears to be a very sensitive project. 14.

Having regard thereto, no interference is called for. I am also of the view that there is no scope to entertain the writ petition for reasons noted above. The above order shall, however, not interfere with the rights of the petitioner to challenge the decision of the respondents before appropriate forum, if so advised.

15.

Urgent Photostat certified copy of this order if applied for, be supplied to the parties upon compliance of necessary formalities.

(Raja Basu Chowdhury, J.)