Delhi High Court - Orders
Rae Bareilly Allahabad Highway Pvt. Ltd vs National Highways Authority Of India on 7 September, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 262/2022 & I.A. 14559/2022
RAE BAREILLY ALLAHABAD HIGHWAY
PVT. LTD. ..... Petitioner
Through: Mr. Krishna Vijay Singh, Mr.
Nachiketa Goyal and Ms. Anushka
Dikshit, Advs.
versus
NATIONAL HIGHWAYS AUTHORITY
OF INDIA ..... Respondent
Through: Mr. A.P. Singh, Ms. Padmapriya and
Ms. Akanksha Das, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 07.09.2022 I.A. 14559/2022 Exemption allowed subject to all just exceptions. Application stands disposed of.
O.M.P.(I) (COMM.) 262/2022
1. This petition has been filed by the petitioner with the following prayers:
"In the light of the above stated facts and the circumstances, it is most respectfully prayed that pending the resolution of the disputes between the parties by arbitration, this Hon'ble court may be pleased to:
(a) stay the operation of the Termination Notice dated 25.08.2022 and restrain the Respondent from taking any coercive steps under the or pursuant to the Termination Notice dated 25.08.2022 against the Petitioner;
(b) restrain the Respondent from carrying out or causing any Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.09.2022 14:32:57 works of four Ianing to be undertaken or carried out through M/s R&C lnfra-APS JV or any other person other than the Petitioner in the Rae Bareli - Allahabad Section of NH-24B from Km 82.000 to Km 188.600 in the state of Uttar Pradesh;
(c) restrain the Respondent from awarding any further works in the Rae Bareli- Allahabad Section of NH-24B from Km 82.000 to Km 188.600 in the state of Uttar Pradesh to any third-party contractor in violation of the Concession Agreement;
(d) direct the Petitioner to release the payment against the bill of the Petitioner raised for the work done by the Petitioner in relation to the punch list items;
(e) pass ex-parte ad-interim orders in terms of prayers (a) to (d) above;
(f) award the costs of the present petition in favour of the Petitioner and against the Respondent; and
(g) grant such other or further relief(s) in favour of the Petitioner and against the Respondent as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The grievance of the petitioner in this petition is primarily with regard to a communication dated August 25, 2022 sent to the petitioner, which is in the nature of notice of termination of contract.
3. It is the submission of the learned counsel for the petitioner that the petitioner was awarded work for four laning at the Rae Bareli -Allahabad Section of NH-24B from Km 82.000 to Km 188.600 in the State of Uttar Pradesh on March 31, 2011. The impugned notice has been issued to the petitioner in violation of the provisions of the contract which contemplates 90 days, 120 days and / or a cure period of 60 days to be adhered to before taking a final action of termination. He states on December 18, 2021, the Independent Engineer had issued punch list of items to be carried out by the petitioner. In fact, the petitioner took up the works but the payment against Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.09.2022 14:32:57 the invoices for the work done was not released and instead the respondent had asked the petitioner to stop work on the punch list items vide letter dated January 15, 2022 stating that the balance work will be carried out by the petitioner's risk and cost. In other words, it is his submission that if the respondent had not directed the petitioner to stop the work on the punch list items and had approved the release of payment of the petitioner's invoice from the Escrow Account in terms of Article 14.4.1 of the Concession Agreement, the petitioner would have been under an obligation to complete the punch list items within 90 days of issuance of the 2 nd PCOD i.e. on or before March 18, 2022, failing which the Respondent would have been entitled to recover damages and extend the period for further period of 120 days i.e. up to July 16, 2022.
4. According to the learned counsel for the petitioner in view of the above facts issuance of notice for termination is uncalled for.
5. During the course of hearing, the counsel did concede to the fact that a third party has been appointed by the respondent for carrying out the punch items.
6. There is no dispute that the Concession Agreement is determinable. This Court is of the view that the prayers as sought for by the petitioner seeking stay of the impugned notice dated August 25, 2022 cannot be granted, more so when third party rights have intervened as is clear from the letter dated January 15, 2022 (page 285).
7. In the facts of this case, this Court is not inclined to entertain the present petition. The same is dismissed.
V. KAMESWAR RAO, J SEPTEMBER 7, 2022/jg Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:07.09.2022 14:32:57