M.Ravi v. The Union Of India And Others
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/1064/2023 M. Ravi Vs.
The Union of India and others Mr. Tapan Kumar Das ... for the petitioner Mr. V.D.Sivabalan ... for the respondents December 15, 2023 [SR] Item No.3 This writ application is formally admitted.
All the relevant papers are before this Court. Hence this Court is in a position to dispose of this writ application today itself.
On 16th August, 2023, the respondent authority awarded a contract in favour of the petitioner to construct the Main Entrance Ramp to Refit Jetty at NSRY(PBR) Port Blair in the Andaman and Nicobar Islands. The value of the work was around Rs.1,42,51,321/-. Clause 3 A of the agreement is important and is inserted below:- "Clause 3 A In case, the work cannot be started due to reasons not within the control of the contractor within 1/8th of the stipulated time for completion of work or one month whichever is higher, either party may close the contract by giving notice to the other party stating the reasons. In such eventuality, the Performance Guarantee of the contractor shall be refunded within following time limits : (i) If the tendered value of work is up to Rs. 1 Crore : 15 days.
(ii) If the Tendered value of work is more than Rs. 1 Crore and upto 10 Crore : 21 days (iii) If the Tendered value of work exceeds Rs. 10 Crore : 30 days
Neither party shall claim any compensation for such eventuality. This clause is not applicable for any breach of the contract by either party."
The time to complete the work was four months or 120 days from 1st September, 2023.
The petitioner could avail of clause 3 A to pullout of the contract and claim refund of the performance guarantee within 1/8th of the stipulated time, that is 15 days, or one month whichever was higher. Beyond one month on 20th October, 2023, he wrote to the Executive Engineer (Naval Projects) about his illness and that of his parents and sought to be excused from performance of the contract. It seems that the respondents did not accept his representation. They have terminated the contract and have forfeited the performance guarantee of Rs. 6,23,458/-. The question is whether the respondents ought to have done so?
Clause 3A of the agreement clearly gives a right to the contractor to obtain discharge from performance of the contract provided the intention is expressed by the contractor within 1/8th of the stipulated time for completion of work or one month whichever is higher. Here the stipulated time was 120 days, 1/8th of which would be 15 days. Hence the petitioner had one month's time to pullout of the contract. If the starting date was 1st September, 2023, he had time till 1st October, 2023. He was delayed by three weeks. No contractor would submit a bid, obtain the contract furnish a performance guarantee and then leave it within a short time.
I am of the opinion that the respondents should take a reasonable and lenient view of this delay considering the illness of the petitioner's parents and his illness. I direct the respondent authority to exonerate the petitioner from any liability under the contract and return to him the performance guarantee of Rs.6,23,458/- within four weeks of communication of this order.
This writ application is accordingly allowed on the above terms.
( I.P.Mukerji, J.)