Jharkhand High Court
Aka Logistics Private Limited vs Central Coalfields Limited (Ccl) on 3 May, 2023
Author: Ananda Sen
Bench: Sanjaya Kumar Mishra, Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 105 of 2023
With
I.A. No. 3886 of 2023
With
I.A. No. 224 of 2023
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AKA Logistics Private Limited, through its authorized signatory, namely Om Prakash
Pareek, Durgapur, District -Barddhman, West Bengal .......... ..... Petitioner.
-Versus-
1. Central Coalfields Limited (CCL), through its Chairman-cum-Managing Director,
Darbhanga House, Ranchi.
2. The General Manager (Washeries), CCL, Darbhanga House, Ranchi.
3. Union of India, Ministry of Finance, Department of Expenditure, Public
Procurement Division, through its Secretary, New Delhi. ... Respondents.
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Petitioner(s) :M/s Sumeet Gadodia, Shilpi Sandil Gadodia, Ankit Kumar and Aanya, Advocates.
For the CCL :Mr. Anoop Kumar Mehta, Advocate.
For UOI :Mr. Shiv Kumar Sharma, CGC
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07/Dated: 03.05.2023
I.A. Nos. 224 and 3886 of 2023
The matter is taken up on two issues; firstly an application has been filed by respondent No. 1 under Section 8 (1) of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as 'the Act') questioning the maintainability of the writ petition, in view of the fact that the agreement allegedly entered into between the parties contains arbitral Clause and the matter should be referred to the Arbitral Tribunal for arbitration.
2. However, in course of hearing it came to light that though there is oral agreement regarding the acceptance of bid of the petitioner, no formal document has allegedly been singed. Thus, there is no specific agreement regarding referring the matter to the arbitration in terms of Section 8 of the aforesaid Act.
3. In that view of the matter, this Court is of the opinion that the writ petition is maintainable and it cannot be referred for arbitration at this stage in exercise of the powers conferred upon us under Section 8 of the Act.
4. Hence I.A. No. 3886 of 2023 is dismissed without there being any merit.
5. The second application (I.A. No. 224 of 2023) is for stay of the order impugned. It is brought to our notice that the petitioner though was declared successful bidder, he could not execute the work because of the office memorandum, issued by the Ministry of Finance on 23 rd July 2020, whereby 2. Rule 144 of the General Financial Rules, 2017 entitled 'Fundamental Principles of Public Buying' has been amended providing 'notwithstanding anything contained in these Rules, Department of Expenditure may, by order in writing impose restrictions, including prior registration and/or screening, on procurement from bidders from a country or countries, or a class of countries, on grounds of defence of India, or matters directly or indirectly related thereto including national security; no procurement shall be made in violation of such restrictions'. Thereafter, Public Procurement Division also issued an order on 23 rd July 2020 prohibiting any process of tender/auction with a direction to initiate de novo process, if the tendering process has crossed the first exclusionary qualificatory stage, in case of bidder having any kind of agreement with any bidder from foreign country.
6. It is not disputed at this stage that the petitioner's consortium comprised of one company of Beijing, China and therefore, by virtue of Section 56 of the Indian Contract Act, prima facie, the contract is not executable because of doctrine of frustration.
7. It is also argued by learned counsel for the petitioner that the forfeiture of E.M.D. will have larger implications, inasmuch as he shall be precluded and will be declared or may be declared ineligible to participate in any other tender in the country, as far as the impugned order remains in force.
8. In that view of the matter, we are inclined to allow the application for stay. Consequently, the impugned order dated 25.10.2022 (Annexure-22) shall remain stayed, as far as it relates to disqualification attached to it. However, we are not inclined to pass any order with regard to refund of EMD, as the petitioner is not pressing at this stage for refund of E.M.D.
9. I.A. No. 224 of 2023 is allowed.
WP(C) No. 105 of 2023.
List this case on 14.06.2023.
In the meantime, let counter affidavit be filed by the respondents. In the meantime, learned counsel for the Union of India will take instruction regarding authenticity of Annexures-20 and 21 of the writ petition and whether the same are in force, as on today, or not.
(Sanjaya Kumar Mishra, C.J.) Anu/-Cp2. (Ananda Sen, J.)