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Judgment
Arindam Sinha, J
Mr. Bhattacharjee, learned advocate appears on behalf petitioners and seeks leave to move this writ petition ex parte on submission, service has just been effected but there is grave urgency.
He draws attention to termination letter dated 5th December, 2019, paragraphs 1, 2 and 3 of which are reproduced below: -
"1. Succinctly, it has come to our notice and against repetitive reminders that no maintenance obligations in the aforementioned packages are being carried out till date. This is a clear breach of our Agreements under reference.
The condition of the aforementioned roads are in pathetic shape which has caused serious disrepute to the Corporation & irreparable damage in the eyes of the local populace, concerned district administration and the principal agency i.e the West Bengal State Rural Development Agency (WBSRDA).
Whereas, vide Clause 43.2 against Security Deposit, "if the Routine maintenance part of the Contract is not carried out by the Contractor as per Contract, the Employer will be free to carry out Maintenance Work and the amount required for this work will be recovered from the amount of Performance Security available with the Employer and/or from any amounts of the Contractor whatever is due."
Apropos, it has been certified that although the work was started, the mobilization at site was poor and the progress was slow and you were requested to speed up the work time and again. In spite of repeated requests, you did not fully mobilize the resources and failed to carry out the works as per the schedule and as per your Undertakings dated 12.11.2019.)"
He submits, there should be order of restraint on respondent employer regarding invocation of performance guarantee furnished by his client, till disposal of the writ petition.
The termination letter says the termination is as per provisions laid down in clause 53.2 (c,k,j). It is presumed, respondent employer is proceeding against petitioner on petitioner's failure to correct a particular defect pointed out, since there is reference to maintenance in the letter. Clause 55.1 in the contract requires the engineer to issue certificate for, inter alia, the value of work done less advance (running account bill) payments received, as provided. On working out pursuant to the certificate, question will arise for recovery. As such nothing is to be done by respondent employer without issuance of the certificate and 48 hours having elapsed upon communication had of the certificate, by petitioner.
Mr. Bhattacharjee's second prayer is for interference with tender issued, last date for submission being 13th December, 2019. Respondent employer is shortly due to be on notice of all points for adjudication in this writ petition. Respondent employer is expected to act with responsibility.
Petitioner will obtain this order and serve upon respondents. They will be heard.
List under heading 'Urgent Motions' Group IX on 16th December, 2019.