M/S Marshal Traders vs Union Of India And Ors

1) The petitioner has filed the instant petition seeking direction to the respondents for release of payment in respect of execution of work of Bore Well

No.1 drilled up to the depth of 750 ft. below the ground level and Bore Well No.2 drilled up to the depth of 750 ft below the ground level at STC BSF

Campus Humhama, Srinagar, Kashmir, pursuant to allotment order No.54(1572)/SCD-2009/1164 dated 01.08.2009 and to release the amount of

earnest money and Performance Guarantee in favour of the petitioner.

2) It is the case of the petitioner that the foresaid works came to be allotted in his favour by the respondents at negotiated tendered amount of

Rs.38,93,086/ where-after the petitioner was asked to complete certain formalities in terms of letter Nos.54(1572)SCD-2009/1164 dated 01.08.2009

and 54(1572)SCD-2009/1243 dated 01.08.2009, which the petitioner duly complied with.

3) According to petitioner, when Bore Well No.1 was drilled up to the depth of 450 ft below the ground level, the work of drilling had to be stopped on

account of feasibility issues. Regarding Bore Well No.2, petitioner claims that when it was drilled up to 750 ft. below the ground, the work could not

be continued further because the samples collected were mostly slity mixed with V. V. fine sand and clay. It is averred that the petitioner asked the

respondents to consult the officials of CGWB so that allotted work could be completed but the matter was delayed by the respondents. Ultimately vide

notice dated 25.11.2010, the contract was cancelled by the respondents but the neither the payment for the executed work nor the earnest money and

performance guarantee was released by the respondents in favour of the petitioner.

4) According to the petitioner, it has executed works and submitted the bills for release of payment but the same has not been released in his favour

despite several representations and requests to the respondents. The petitioner has placed on record several communications and correspondence

exchanged by it with the respondents to show that it has executed the work and exchanged communications with the respondents for release of the

amount.

5) The respondents have resisted the writ petition by filing reply thereto. In their reply, the respondents have claimed that as per Clause 25 of the

Agreement, there is an arbitration clause existing in the contract and the petitioner vide its letter dated 01.08.2012 has approached the respondents for

appointment of Arbitrator. It has also been contended that the petition raises disputed questions of fact which cannot be adjudicated in writ jurisdiction.

6) I have heard learned counsel for the parties and perused the record of the case.

7) The case of the petitioner, as is clear from the averments made in the writ petition, is that it has executed certain works regarding which payment

has not been released by the respondents.

8) The respondents in their reply have not disputed the fact that the contract of digging Bore Wells was allotted to the petitioner nor has it been

disputed that the petitioner had sought release of payment in respect of the works executed by him. The stand taken by the respondents is that the

matter is covered by Arbitration clause and the request of petitioner for appointment of arbitrator is under consideration.

9) In view of the stand taken by the respondents, the writ petition is disposed of with a direction to the respondents to consider the claim of the

petitioner in the light of terms of the contract executed between the parties including the one relating to appointment of Arbitrator.