M/s Vasishta Construction Pvt. Ltd vs The State of Bihar

Heard Mr. Y.V. Giri, learned senior counsel for the

petitioner and learned counsel appearing on behalf of the State-

respondents.

The grievance of the petitioner, in this application

under Article 227 of the Constitution of India, is that the learned

court below while admitting and issuing the notice to the

respondents in Misc. (Arbitration) Case No. 123 of 2017 filed by

the petitioner under Section 9 of the Arbitration & Conciliation Act,

1996 has failed to consider the relief as prayed for grant of interim

protection to the petitioner and pass appropriate order thereupon.

Learned senior counsel for the petitioner, after

elaborating the facts of the case in detail, has submitted that though

the learned court below has noticed the prayer of the petitioner for

grant of interim relief but has omitted to pass any order in that

regard which clearly amounts to failure to exercise jurisdiction in

the facts and circumstances. It has been contended that the

dispossession of the petitioner from the work site including the

materials thereupon will result in irreparable loss and injury to the

petitioner. It has also been pointed out that no notice for

cancellation of the contract as envisaged by clause 14 of the

contract (Annexure-1) has been received by the petitioner and in

fact the said contract has not been cancelled to the knowledge of the

petitioner but subsequent contract (Annexure-16) has been executed

by the respondents on 11.07.2017.

Learned counsel for the State-respondents while

resisting the assertions made on behalf of the petitioner has

submitted that the petitioner has already been dispossessed from the

work site and there is now no scope for grant of interim relief, as

prayed. It has been emphasized that the notice for cancellation of

the contract has already been issued to the petitioner and the

cancellation order has also been passed. Learned counsel has also

made submissions that the petitioner has not approached this Court

with clean hands and the facts of the case itself show that

substantial delay has already taken place in completion of the

important work in question for the reasons directly attributable to

the conduct of the petitioner.

After considering the submissions on behalf of the

parties and the materials on record, this Court in the facts and

circumstances and in view of the nature of the order being passed

refrains from going into the merits of the rival assertions. However,

from the order dated 10.07.2017 (Annexure-15) passed by the

learned court below in Misc. (Arbitration) Case No. 123 of 2017, it

is manifest that the prayer for grant of interim relief was indeed

made by the petitioner but has not been considered by the learned

court below. There is no reason assigned in the impugned order for

non-consideration of the said relief. It is, therefore, beyond cavil

that the learned court below has failed to exercise the jurisdiction.

Accordingly, this application is disposed of with

direction to the learned court below to pass appropriate order in

accordance with law on the prayer of the petitioner for grant of

interim relief as made before it. Learned counsel for the parties has

submitted that the learned court below be directed to hear the matter

on 26.07.2017, and have jointly submitted that both the parties

would be present on that date for hearing the matter on the issue of

grant of interim relief. Keeping in view the nature of the dispute

between the parties and the facts and circumstances of the case, the

learned court below is directed to take up the Misc. (Arbitration)

Case No. 123 of 2017 (M/s Vasishta Construction Pvt. Ltd. Vs. The

State of Bihar & Others) on 26.07.2017 for considering the prayer

for grant of interim relief as prayed by the petitioner and pass

appropriate order in accordance with law.

Further this Court restrains the respondents from

dispossessing the petitioner, if not already been dispossessed, from

the work site and the materials thereupon till 26.07.2017.

It is clarified that this Court has not gone into the merits

of the case of either of the parties and this order shall not prejudice

the case of the parties either in any manner and the same shall be

decided on its own merits in accordance with law.

Accordingly, this application is disposed of with the

above directions and observations.