Delhi High Court - Orders
Alankit Assignments Ltd vs Union Of India on 27 May, 2022
Author: Vipin Sanghi
Bench: Sachin Datta, Vipin Sanghi
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 366/2022
ALANKIT ASSIGNMENTS LTD ....... Appellant
Through: Mr. Ashutosh Dubey, Mr. Abhishek
Chauhan, Mr. Rajshri Dubey, Mr.
Amit P. Shahi, Ms. Divya Sharma and
Mr. Amit Kumar, Advocates.
versus
UNION OF INDIA ....... Respondent
Through: Mr. Chetan Sharma, ASG with Mr.
Ripu Daman Bhardwaj, CGSC with
Mr. T.P.Singh, Mr. Amit Gupta, Mr.
Rishi Dubey, Mr. Saurabh Tripathi
and Mr. Suhag Gargi, Advocates for
UOI.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 27.05.2022 C.M. Appl. No. 25789/2022 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.
LPA 366/20221. The present appeal under Clause 10 of the Letters Patent Act is directed against the impugned order and judgement dated 09.09.2020 passed by the Learned Single Judge whereby the Learned Single Judge has dismissed the Writ Petition, albeit, granting liberty to the petitioner to pursue its remedy in accordance with law.
2. The factual matrix has been set out in detail in the impugned judgement. However, a brief background of the controversy is that on Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 1 of 7 14:58:07 21.05.2014, a formal agreement was executed between the Embassy of India, Abu Dhabi, UAE and Appellant/Petitioner for establishing an Indian Workers Resource Centre (IWRC) at Dubai by the appellant for the benefit of Indian workers in the UAE for a period of three years, commencing w.e.f. 01.03.2014 till 28.02.2017. The said contract was extended till 28.02.2018. Furthermore, the respondent is stated to have decided to award the contract for setting up and management of IWRC at Sharjah from 01.04.2017 to 28.02.2018 also to the appellant. Thereafter, a fresh Request for Proposal (RPF) document for selection of service providers to establish and manage Pravasi Bhartiya Sahayata Kendra (PBSK) at Dubai and Sharjah is stated to have been issued in September, 2018 through Community Affairs Wing, Embassy of India, Abu Dhabi for a period of three years.
3. The appellant submitted its bid in terms of the said RFP and a letter of intent was issued in its favour by the respondent to manage the PBSK at Dubai and Sharjah for a period of three years w.e.f. 01.11.2018.
4. Thereafter, on 04.04.2019, the respondent issued a letter informing the appellant that the competent authority has reduced the term of services to be provided from three years to one year i.e., from 01.11.2018 till 31.10.2019; subsequently by letter dated 29.01.2020 respondent further informed that competent authority has conveyed its approval for further extension of services of the appellant for PBSK at Dubai and Sharjah till 30.04.2020.
5. It was thereafter, that the appellant filed the writ petition before this Court on 05.03.2020 seeking the following reliefs:
"(a) this Hon'ble Court further be pleased to issue any writ, order or direction in the nature of Certiorari or any other appropriate writ, order or direction in the nature thereof for quashing letter dated 04.04.2019 bearing No.Abu/CW/386/7/2017(ANNEXURE P-12) and communication dated 29.01.2020 (ANNEXURE P-15) issued by Respondent for reducing the term of the Contract granted to the Petitioner in terms of the Request Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 2 of 7 14:58:07 forProposal Document and the Letter of Intent dated 29.10.2018.
(b) this Hon'ble Court further be pleased to issue any writ, order or direction in the natureof Certiorari or any other appropriate writ, order or direction in the nature thereof for quashing Advance Notice for floating tender for Pravasi Bhartiya Sahayata Kendra dated 02.02.2020 (ANNEXURE P-17) and Request for Proposal document issued by Embassy of India Abu Dhabi dated 25.02.2020 inviting bids for establishing and managing the Pravasi Bhartiya Sahayata Kendra at Dubai (ANNEXURE P-18)."
6. In the meantime, a new RFP had been floated by the respondent on 25.02.2020. In the hearing held on 11.03.2020 before the single judge, the learned senior counsel for the appellant made a submission that without prejudice to its rights and contentions, it would participate in the said RFP.
7. Thereafter appellant/petitioner filed an application being CM No.11158/2020 seeking the following reliefs:
"a) Pass ex-parte ad interim order to direct the Respondent to continue to make payment of AED 1,00889.00 + Taxes to the Applicant as per the terms of the Letter of Intent dated 29.10.2018, till pendency of the present petition or expiry of terms of the contract/Letter of Intent dated 29.10.2018, whichever is later,'
b) Direct the Respondent to clear, the pending payments of the Applicants for rendering their services upto April 2020 @ AED 1,00889.00 + Taxes per month for Dubai and Sharjah PBSK Centres."
8. In the said application, it was asserted by the petitioner that the respondent has cancelled the fresh RFP dated 25.02.2020 wherein the petitioner had emerged as L-1 bidder, and that the respondent had extended the existing arrangement with the petitioner for three more months till July, 2020 as per the rates prevailing prior to November, 2018. The petitioner had Signature Not Verified also been called upon to close the Sharjah Centre w.e.f. 01.05.2020. Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 3 of 7 14:58:07
9. In the above backdrop, after taking into account the scope of writ jurisdiction in respect of the commercial disputes between the appellant and the respondent, and also taking into account the judgements of the Supreme Court in Joshi Technologies International Inc vs. UOI & Ors. 2015 7 SCC 728 and Dresser Rand S.A. vs. Bindal Agro Chem Ltd. and K.G. Khosla Compressor Ltd. 2006 (1) SCC 751, the Learned Single Judge, went on to consider the scope and effect of the Letter of Intent dated 29.10.2018 in favour of the appellant / petitioner.
10. In paras 24, 25 and 26 of the impugned judgement, the Learned Single Judge gave the following findings:-
"24. In the present case, the terms of Letter of Intent clearly reflect that it was in the nature of an Offer made to the petitioner for its acceptance. The petitioner claims to have accepted the same by its communication dated 30.10.2018, which reads as under:
" In response to your 'Letter of Intent‟ for Setting up Letter "Pravasi Bhartiya Sahayata Kendra (PBSK) " vide your letter no. Abu/CW/386/7/2017 dated 29th, October 2018. We Sincerely thank you for giving us another chance to continue our services to the Indian Community in UAE, your continued trust, is the testimony that our efforts are in the right direction in making PBSK as a hallmark of „grievance redressal‟ for Indian community in UAE.
We humbly accept the terms stated in the "Pravasi Bhartiya Sahayata Kendra (PBSK)" bid and assure the embassy that, we will continue to create higher benchmarks of services to the Indian Community in UAE.
Regarding the "point xiii‟ of your letter of intent for appointment of CPIO, in our communication dated 2nd August 2018 by Mr. Anish Chaudhary, we had submitted that;
"Alankit Assignment limited, is a retainer contractor as a private company to run the IWRC, UAE and works under the direct control and supervision of Indian Signature Not Verified Embassy/Counsellor at UAE. It does not act as independent Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 4 of 7 14:58:07 Public Authority. We, therefore, submit that, Alankit Assignment Ltd / IWRC, UAE is not covered under the ambit of RTI Act 2005. In view of this, the appointment of a Senior Official of Alankit at UAE, as CPIO under the RTI act does not seems to be correct".
The appointment of a CPIO was not part of the scope of this RFP as well.
Hence, through this letter we submit our acceptance to your LOI and also request the embassy to consider exluding the „point xiii‟ of the „letter of intent‟ from the contract."
25. A reading of the above would clearly show that this was not an unconditional Acceptance of the petitioner to the Letter of Intent. The petitioner sought exclusion of Clause xiii of the Letter of Intent "from the contract".
26. A formal decision on the above request of the petitioner was never taken by the respondent, though the petitioner was called upon to start the operation of the PBSK at Dubai and Sharjah from 01.11.2018. Was this therefore, an acceptance by the respondent of the request of the petitioner for deletion of the above condition or was the communication dated 30.10.2018 of the petitioner treated as its unconditional acceptance to the Letter of Intent, etc., are the questions that would arise and would require the parties to lead evidence. These cannot appropriately be considered in writ jurisdiction.
(emphasis on bold supplied by us)"
11. Having heard the respective counsels for the parties and having considered the matter, it appears to us that the findings rendered by the Learned Single Judge are perfectly in order. While taking note of the relevant facts and circumstances pertaining to the Letter of Intent and the communication sent by the Petitioner in response thereto, the Ld. Single Judge rightly concluded that the issue as to whether, or not, the communication dated 30.10.2008 was an unconditional acceptance, could only be conclusively decided after the parties adduce evidence in appropriate proceedings.Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 5 of 7 14:58:07
12. The Learned Single Judge also went on to hold that in writ jurisdiction, it could not sit on appeal over the decision to limit the period of contract. In this context, the Court held in para 29 as under:
"29. The effect and consequence of such decision of the respondent on the contract and the contractual claims, if any, in form of damages or specific performance, by the petitioner, can again be best determined by resorting to contractual remedies in form of arbitration, if available, or in form of a civil suit. Writ Court would not be a proper forum to adjudicate on such claims and they would necessarily involve highly contentious and disputed questions requiring assessment of evidence, the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses."
13. Learned Single Judge again, rightly held that there was no occasion for it to interfere with the decision to cancel the new RFP.
14. It can be seen from perusal of the impugned judgement that findings on the aforesaid aspects have been rendered by the Learned Single Judge based on the submissions made by the appellant, and upon a perusal of the pleadings and record before the Learned Single Judge. Clearly, the impugned judgement cannot be faulted for rendering findings on the aforesaid aspects in the light of the submissions made before the court.
15. Moreover, a perusal of the impugned judgement makes it clear that the Learned Single Judge was mindful of the fact that the effect and consequences of any decisions taken by the respondent on the contract and the contractual claims, if any, in the form of damages or specific performance by the petitioner, can be best determined by resorting to contractual remedies in the form of arbitration, if available, or in the form of a Civil Suit. It appears to us that the nature of the contract being a service contract, may not even be capable of specific performance and, consequently, no injunction could be sought to prevent its Signature Not Verified breach/termination. We may rely on the judgment of the Supreme Court in Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 6 of 7 14:58:07 Indian Oil Corporation Ltd. Vs. Amritsar Gas Service and Ors. (1991) 1 SCC 533.
16. The impugned judgement also held in favor of the Petitioner that that services provided by the petitioner beyond the curtailed period, would be governed by Section 70 of the Indian Contract Act and fair compensation for the same cannot be determined by the writ court, as it would again require recording of evidence, with examination and cross-examination of the witnesses. Clearly, the Learned Single Judge has examined the matter being fully mindful of the scope of the proceedings before it and having regard to the relevant facts and circumstances and the submissions made before it.
17. In the circumstances, we find no reason to interfere with the judgement rendered by the Learned Single Judge. However, the petitioner is at liberty to take recourse to such other contractual remedies as may be available to it and initiate appropriate proceedings for adjudication of any monetary or any other claims it may have against the respondents in accordance with law, and in terms of the directions already made by the Ld. Single Judge.
18. Since there is an arbitration agreement between the parties, we grant liberty to the Appellant to take all such pleas before the Arbitral Tribunal, as may be permissible to it under law, including pleas in relation to the facts and circumstances noticed in the impugned judgement.
19. With the aforesaid observations, the present appeal is dismissed, however, with no order as to costs.
VIPIN SANGHI, ACJ SACHIN DATTA, J MAY 27, 2022/cl Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:02.06.2022 LPA 366/2022 Page 7 of 7 14:58:07