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Judgment
L. Mohapatra, J.—The petitioner in this writ application challenges the legality of the tender call notice in Annexure-5 inviting tender for completion of the balance work of Chainlink Fencing for Eastern Indian Refinery Project at Paradeep.
The case of the petitioner is that he was one of the tenderers for the work Chainlink Fencing for the Eastern Indian Refinery Project pursuant to advertisement issued by the opposite party No. 2 and its tender having been accepted, an agreement was entered into. Though the work was to be completed within a period of six months from the date of handing over the site, it is alleged by the petitioner that due to non-co-operation on the part of the opposite parties 1 to 3 in handing over the work site execution of the work was delayed. It is further alleged in the writ application that apart from delay in handing over the work site, the opposite parties 1 to 3 also did not provide any security as the local land owners strongly protested and objected to such work. It is stated in the writ application that though several letters were written to the opposite parties to hand over the site and provide security for execution of the work, nothing was done. It is claimed that in spite of such difficulties, the petitioner continued the work and continued to submit the running bills, but the opposite parties. 1 to 3 again defaulted in payment of the amount claimed in the running bills. In view of such conduct of the opposite parties 1 to 3, the petitioner alleges that it could not complete the work in time and the same gave rise to a dispute between the parties as a result of which the petitioner had moved this Court in M.J.C. No. 227 of 2001 for appointment of an Arbitrator as per terms of the agreement. However, the said petition was withdrawn on 19.9.2001 as per suggestion of the opposite parties to settle the matter amicably. Subsequently, after negotiation and discussion, the opposite parties agreed to allow the petitioner to complete the balance work, but in the minutes of the meeting held on 6.1.2003 it was observed that though the opposite parties have no objection for allowing the petitioner to complete the balance work, it was stipulated that a separate agreement has to be executed for the balance work and the Clause for arbitration has to be deleted. The petitioner objected to such a condition in his letter dated 16.1.2003. Without giving any reply to the said letter, another advertisement was made inviting fresh tender for execution of the balance work. Challenging the said advertisement inviting tenders, this writ application has been filed.
A preliminary counter affidavit has been filed by the opposite parties 1 to 3. The execution of the agreement between the petitioner and the opposite parties for the above work is not in dispute. It is stated in the counter affidavit that the job involved in the contract was erection of steel posts embedded in concrete over the boundary land covering 42 K.Ms. as well as erection of chain link fencing. Though the agreement was effective from 17.5.2000 and the petitioner was required to complete the work within six months, it could complete only 4% of the work as on 10.11.2000. Considering the difficulties expressed by the petitioner, the time for completion of the work was extended up to 31.3.2001 and the petitioner could not complete the work during that time and could complete only 58% of the work by 31.3.2001. It is alleged in the counter affidavit that in spite of all co-operation and the time extension granted by the opposite parties, the petitioner did not complete the work and time and again requested for closure of the contract. In view of the above, there was no other alternative available for the opposite parties except to close the contract and call for fresh tenders for completion of the balance work.
Shri B. M. Patnaik, the learned Senior Counsel appearing for the petitioner drew attention of the Court to Annexure-2 and submitted that since the opposite parties 1 to 3 had agreed for completion of the work by the petitioner in its meeting dated 6.1.2003, there was no reason for them to invite tender for completion of the balance work. According to Shri Patnaik, the petitioner had only objected to exclusion of the arbitration clause in the fresh agreement that was required for the execution of the balance work. The opposite parties could have considered the aforesaid point in stead of closing the contract and inviting tenders for completion of the balance work.
Shri Misra, the learned counsel appearing for the opposite parties 1 to 3, on the other hand, submitted that the petitioner neglected in performing the work and in spite of extension of time, it could complete 58% of the work and at least on two occasions requested for closure of the contract. It is also contended by Shri Misra that the intention of the petitioner was clear from the very beginning as during execution of the work, he approached this Court for appointment of an Arbitrator and also objected to exclusion of the arbitration clause from the agreement that was to be executed for the balance work. According to Shri Misra, keeping in mind the conduct of the petitioner in executing the work as well as his requests for closer of the contract, there was no other option available to the opposite parties except to close the contract and invite fresh tenders for completion of the balance work. In this connection, the learned counsel appearing for the opposite parties 1 to 3 drew attention of the Court to Annexure-3 as well as Annexure-H attached to the additional affidavit filed by the opposite parties 1 to 3.
On reading of the writ application as well as the counter affidavit and additional affidavit filed by the opposite parties, we find that the allegations made by the petitioner are controverted by the opposite parties 1 to 3. Whether the site was handed over to the petitioner in time or not, whether the opposite parties 1 to 3 extended all co-operation for execution of the work or not, whether the petitioner neglected in executing the work as alleged by the opposite parties 1 to 3 are all disputed questions of fact which cannot be gone into or decided in a writ application under Article 226 of the Constitution of India. If there is any dispute, it is open for them to seek for appointment of an Arbitrator as per the terms of the agreement. But so far as legality of the closure of the contract is concerned, we find from Annexure-H that by letter dated 9.2.2001 the petitioner expressed its desire to close the contract on the grounds mentioned therein and requested for payment of the final bill as early as possible. This letter was written at a time when the contract was operative and the petitioner had been directed to complete the work by 31st of March, 2001, Again we find from Annexure-3 that the petitioner requested the opposite parties to close the contract and settle the dues. Confronted with the aforesaid two letters Shri Patnaik, the learned counsel appearing for the petitioner submitted that those letters were written out of frustration. We are unable to accept such a contention since it is apparent from the record that there were disputes between the parties in relation to execution of the work and at one point of time the petitioner had approached this Court for appointment of an Arbitrator. The petitioner having requested for closure of the contract in his letters as indicated above, we find no illegality on the part of the opposite parties 1 to 3 in closing the contract and inviting fresh tenders for completion of the balance work. We do not find any merit in the writ application so far as it relates to the prayer for quashing Annexure-5 is concerned. The other prayer of the petitioner is for a direction to the opposite parties to settle the dues. Since there is an arbitration clause in the agreement, it is always open for the petitioner to seek for appointment of an Arbitrator in the event the opposite parties fail to settle the dues as claimed by the petitioner and there is no need for this Court to pass any order in exercise of jurisdiction under Article 226 of the Constitution.
We, therefore, do not find any merit in the writ application and the same stands dismissed.
Sujit Barman Roy, C.J.
I agree.