Calcutta High Court
M/S Sunil Hi-Tech Engineers Ltd vs M/S Bharat Heavy Electricals Ltd on 25 November, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
AP No. 966 of 2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
M/S SUNIL HI-TECH ENGINEERS LTD.
Versus
M/S BHARAT HEAVY ELECTRICALS LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 25th November 2016.
Appearance:
Mr. Dhruba Ghosh, Senior Advocate
Ms. Sohini Bhattacharya, Advocate.
The dispute is arising out of a contract dated 4th March 2015
in relation to execution of work at North Kharanpura Super Thermal
Power Project (STTP), Jharkhand. Mr. Dhruba Ghosh, learned senior
counsel appearing on behalf of the petitioner submits that on 5th
November 2016, the respondent issued a letter of termination by
serving 14 days' notice and has threatened to execute the balance work at the risk and cost of the petitioner as per the contract provision. It is submitted that following the aforesaid, a representation was made to the respondent to arrive at an amicable settlement as contemplated in the agreement, prior to initiation of arbitration proceeding, and on consideration of such representation, the period of completion of the project by the petitioner was extended up to 15th January 2017. Mr. Ghosh has produced before this court documents which is a flow chart and appear to have been signed by the parties which indicate that the 2 respondent has agreed to extend the period for completion of the 40% balance work by 31st December 2016 and deck casting and other works by 15th January 2017.
The petitioner appears to have been shocked by a communication dated 23rd November 2016 by which the respondent enforced the earlier letter of termination dated 5th November 2016 and directed the respondent to stop all activities of the work with immediate effect and submit final measurement, final reconciliation statement of cement and steel etc. towards closure of the contract. The flowchart of the work and the letter dated 23rd November 2016, however, are not on record and leave is sought to file a supplementary affidavit to bring on record the said documents. Leave is granted to file a supplementary affidavit disclosing the documents by 28th November 2016. The letter dated 23rd November 2016 and the flowchart signed on 19th November 2016 by three persons consisting of four pages, duly initialed by the Assistant Registrar attached to this Court, are kept with the record.
On the basis of the materials on record, it appears that subsequent to the letter of termination dated 5th November 2016, on 19th November 2016, the parties have agreed mutually to extend the period of completion of the work. In view of such extension, it appears to this court that the letter of termination dated 23rd November 2015 has been issued mechanically and without adverting 3 to the earlier documents by which the period was extended. This court proceeds on the basis, in absence of an affidavit, that the documents handed over to the court showing extension are genuine and have been duly signed by the authorised representative of the respondent. In the affidavit to be filed, the particulars of the persons whose signatures are appearing in the said documents should be clearly disclosed.
In my view, the petitioner is able to make out a prima facie case and the balance of convenience lies in favour of passing of an ad interim order in favour of the petitioner since refusal to pass such order would cause greater hardship than the passing would have under the facts and circumstances. Moreover, the respondent had due notice of this application but has failed to appear to put any resistance to the prayers made in the petition. The allegations made in the petition along with the documents produced before this court for the time being have remained uncontroverted.
Under such circumstances, there shall be an order restraining the respondent to give effect to the notices dated 5th November 2016 and 23rd November 2016. The matter is made returnable on 6th December 2016. The interim order shall continue for a period of three weeks or until further order, whichever is earlier. The respondent shall be entitled to pray for variation, modification and/or recalling of the order on the returnable date. 4
The petitioner shall serve a copy of the supplementary affidavit and communicate this order to the respondent by 29th November 2016. An affidavit of service shall be filed in course of this day.
(SOUMEN SEN, J.) S. Kumar