M/S A G Construction And Another v. The Andaman And Nicobar Administration And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/1026/2023 M/s AG Construction and another Vs.

The Andaman & Nicobar Administration and others Mr. Adarsh Ilango ... for the petitioners Mr. Shatadru Chakraborty, Sr.Adv.

Mr. Prakash Minj ...

for the respondents February 19, 2025 [SR] Item no. 19 1.

This is a hearing of a writ petition upon affidavits. Affidavit-in-opposition and affidavit-in-reply are on record. 2.

Arising out of a tender process, the petitioners as a contractor participated for construction of a portion of rural road as mentioned in the tender documents. In the meanwhile of carrying out the construction work, petitioners were directed by Administration to carry out certain deviated works. The deviated works were not included within the term of tender. However, by mutual understanding an agreement by and between the parties, those deviated works were done by the petitioners, as submitted by the learned advocate appearing on behalf of the petitioners.

3.

After deviated works were done, the petitioners submit that certificate of completion was issued by the respondent no.4 Annexure P4 at page 81 to the writ petition. It is submitted by the petitioners that a total sum of Rs.3,67,43,333/- has already been paid to the petitioners.

4.

The petitioners now claim an additional amount of Rs.83,75,951/- on account of deviated works. The respondent

no.5, by a letter dated October 31, 2017 has placed the claim of the petitioners along with the bills raised by it for the said sum of Rs.83,75,951/- before the respondent no.4 for his consideration. The same is pending.

5.

The petitioners made a representation dated February 29, 2020 at page 90 to the writ petition before the respondent no.4 claiming the said amount of Rs. 83,75,951/-. The said representation has not yet been disposed of. 6.

Mr. Shatadru Chakraborty, learned senior counsel appearing for the respondents submits that the deviated works alleged to have been carried out by the petitioners are not admitted by the respondents. There was no agreement by and between the parties to carry out any deviated works. Mr.Chakraborty denies and disputes the submissions made on behalf of the petitioners.

7.

Mr. Chakraborty further submits that the alleged claim of the petitioners, being disputed, is required to be proved by the petitioners through the arbitration proceeding as agreed by and between the parties under the contract/tender terms. The prearbitration proceedings requires the petitioners to submit its claim before the respondent no.4 for its consideration. 8.

After considering the rival contentions of the parties and upon perusal of the materials on record, the respondent no.4 is directed, upon issuing a prior hearing notice of at least seven days to the petitioners and after granting them an opportunity of hearing, to dispose of the said representation dated February 29, 2020 by passing a reasoned order, in accordance with law.

The said representation shall be considered as the prearbitration claim before the respondent no.4. 9.

The entire exercise shall be carried out and completed by the respondent no.4 positively within four weeks from the date of communication of this order and the reasoned order shall be communicated to the petitioners positively within a week from the date of the said reasoned order to be passed. 10.

In the event, the reasoned order and/or a part or any portion of it goes against the petitioners and the petitioners are aggrieved, the petitioners shall be at liberty to invoke arbitration clause and to proceed with the reference, in accordance with law.

11.

In that case, the reference for arbitration by constituting the arbitral tribunal shall commence positively within two weeks from the date of invocation of the arbitration clause by the petitioners and the arbitral tribunal shall dispose of the entire proceeding strictly, in accordance with law, as expeditiously as possible but within the time frame of six months from the date of first hearing of the reference. 12.

It is also made clear that, if the reasoned order confirms any quantum to be payable to the petitioners, the same shall be paid to the petitioners positively within four weeks from the date of the reasoned order to be passed and the petitioners shall accept the same without prejudice to its rights and contentions in respect of the balance claim of the petitioners, if any, for which he may apply for arbitration.

13.

Any claim or proceeding arising from the arbitration reference shall be proceeded with under the provisions of the Arbitration and Conciliation Act, 1996.

14.

With the above observations and directions, this writ petition WPA/1026/2023 stands disposed of, without any order as to costs.

( Aniruddha Roy, J. )