Gauhati High Court
Page No.# 1/9 vs The Union Of India And 6 Ors on 17 February, 2025
Page No.# 1/9
GAHC010114012024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1751/2024
M/S TECHNO STEEL AND CRAFT INDUSTRIES AND ANR
HAVING ITS REGD. OFFICE AT G.N. BORDOLOI ROAD, AMBARI, GHY.
REPRESENTED BY ITS PROPRIETOR SRI PLABAN DAS
2: PLABAN DAS
S/O LT. NARAYAN DAS
H/NO.3, G.N. BORDOLOI ROAD
AMBARI, GUWAHATI
DIST- KAMRUP METRO
ASSA
VERSUS
THE UNION OF INDIA AND 6 ORS
THROUGH THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
SHIPPING, TRANSPORT BHAVAN, PARLIMENT STREET, NEW DELHI-01
2:INLAND WATERWAYS AUTHORITIES OF INDIA MINISTRY OF SHIPPING
GOVT. OF INDIA
H.O.A-13
SECTOR -I, NOIDA-201301
UTTAR PRADESH
3:THE CHAIRMAN
INLAND WATERWAYS AUTHORITIES OF INDIA MINISTRY OF SHIPPING
GOVT. OF INDIA
H.O.A-13, SECTOR -I
NOIDA-201301
UTTAR PRADESH
4:THE DIRECTOR
INLAND WATERWAYS AUTHORITIES OF INDIA MINISTRY OF SHIPPING
GOVT. OF INDIA
H.O.A-13
Page No.# 2/9
SECTOR -I, NOIDA-201301
UTTAR PRADESH
5:THE DY. DIRECTOR
INLAND WATERWAYS AUTHORITIES OF INDIA MINISTRY OF SHIPPING
GOVT. OF INDIA
H.O.A-13, SECTOR -I
NOIDA-201301
UTTAR PRADESH
6:THE CHIEF ENGINEER
INLAND WATERWAYS AUTHORITIES OF INDIA MINISTRY OF SHIPPING
GOVT. OF INDIA
H.O.A-13, SECTOR -I
NOIDA-201301
UTTAR PRADESH
7:THE DIRECTOR
ENGINEER IN CHARGE
INLAND WATERWAYS AUTHORITIES OF INDIA
REGIONAL OFFICE
PANDU PORT COMPLEX
PANDU, GHY-12
ASSAM
Advocate for the Petitioner : MS. PADMINI BARUA, MS. RUKMINI BARUA
Advocate for the Respondent : DY.S.G.I., MS. I DAS (R-7),MR. SURAJIT DUTTA (R-7)
Linked Case :
M/S TECHNO STEEL AND CRAFT INDUSTRIES AND ANR
VERSUS
THE UNION OF INDIA AND 6 ORS H
------------
For petitioner/appellant(s) : Ms. Rukmini Borauh, Advocate Ms. Padmini Borauh, Advocate For respondent(s) : Mr. Surajit Dutta, Advocate Ms. I. Das, Advocate Ms. B. Sarma, CGC Page No.# 3/9
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR 17.02.2025 (Vijay Bishnoi, CJ) I.A. (C) No. 1751/2024
1. The matter comes upon for consideration of the Interlocutory Application with a prayer to condone the delay of 242 days in filing the connected writ appeal.
2. In the Interlocutory Application, the main contention of the applicants for condoning the delay is that the applicant No. 2, being the sole proprietor of M/s Techno Steel and Craft Industries (applicant No. 1), is having exclusive domain to decide upon the legal matters and since he was suffering from illness, such as high blood sugar, it resulted in a disoriented feeling for several months for which the connected writ appeal could not be filed within the prescribed limitation period.
3. Another ground taken in the application for condoning the delay in filing the connected writ appeal is that the premises, on which the construction yard of the applicants is located, is at Panikhaiti, near Guwahati, which is on the bank of the river Brahmaputra and is subjected to continuous erosion since is year 2021 and, during the period ending the year 2023 to the beginning of the year 2024, again erosion took place and the said situation required constant attention and monitoring by the applicant No. 2, which resulted in the delay in filing the connected writ appeal.
4. The non-applicant Nos. 2 to 7 have opposed the contentions raised in the application on the ground that the reasons assigned for condoning the delay are not convincing and the statements made by the applicants are casual, vague and indeterminate assertions. It is further contended that since the plea of illness of the applicant No. 2 is not supported by any documentary evidence, it is obvious that the Page No.# 4/9 said statements are false and concocted.
5. The statements of the applicants regarding the continuous erosion of land at the site of their construction yard, which is also one of the reasons assigned by the applicants for condonation of the delay, is also countered by the non-applicant Nos. 2 to 7 while contending that under no circumstances the said explanation can be viewed as a possible cause for the delay in filing the connected appeal.
An affidavit-in-opposition is filed on behalf of the applicants annexing thereto certain medical prescriptions relating to the medical condition of the applicant No. 2 and also highlighting the flood situation, which is stated to have affected the construction yard of the applicants.
6. Having gone through the contents of the application, the affidavit-in-opposition filed by the non-applicant nos. 2 to 7 and also having gone through the reply affidavit filed by the applicants, we, in the interest of justice, deem it appropriate to condone the delay in filing the connected writ appeal.
Hence, the Interlocutory Application is allowed and the delay of 242 days in filing the connected writ appeal is condoned.
Interlocutory Application stands disposed of.
WA No. 5112/2024 (Filing number)
1. With the consent of the parties, the connected writ appeal is heard on merit.
2. The connected writ appeal has been preferred by the appellants against the judgment and order dated 03.08.2023 passed by the learned Single Judge in WP(C) No. 1066/2014.
3. The facts of the case, in brief, are that the appellants were awarded three contracts by the Inland Waterways Authority of India in relation to construction and supply of 2 (two) pontoons each for Tezpur, Nimati and Dibrugarh. Letter of Page No.# 5/9 Acceptance was issued on 27.02.2998 in respect of Tezpur and Letters of Acceptance were issued on 09.07.2008 for both Nimati and Dibrugarh. As per the said Letters of Acceptance, the period for delivery of the pontoons was to be completed within 7 (seven) months from the date of issuance of the work order as per the agreed terms and conditions.
4. It is not in dispute that a delay of 117 days (17 weeks) was caused in construction and supply of two pontoons for Tezpur. Similarly, a delay of 164 days (24 weeks) was caused in construction and supply of two pontoons for Nimati and a delay of 206 days (30 weeks) was caused in construction and supply of two pontoons for Dibrugarh.
The respondent Inland Waterways Authority of India released final bills to the appellants after deducting 10% of the total value of each contract against liquidated damages. The appellants represented against the said deductions with the request for waiver of liquidated damages and to release the amount so deducted against liquidated damages. The respondent authorities issued certain communications asking the appellants to provide adequate documentary proof to substantiate the delay in supply of the pontoons and also to establish that the delay was beyond the control of the appellants.
5. It appears that pursuant to the communications issued by the respondent authorities, the appellants furnished some documents. However, when the respondent authorities did not take any steps on the various representations and reminders submitted by the appellants, the appellants approached the writ Court under Article 226 of the Constitution of India.
6. In the writ proceeding, the respondents filed affidavit-in-opposition taking a stand that the claim of the appellants for releasing the amounts deducted against liquidated damages had been duly taken into consideration and, thereafter, the claim was rejected. It is also stated in the affidavit-in-opposition that the appellants had Page No.# 6/9 preferred a departmental appeal against the decision of the respondents not to release the amounts so deducted against liquidated damages. However, the said appeal found no favour with the appellate authority and no relief was granted to the appellants. In the writ proceeding, the respondents also raised objections regarding maintainability of the writ petition filed by the appellants claiming that as per the terms of agreement entered into between the appellants and the respondents, the appellants are having adequate and efficacious remedy to go for arbitration.
7. The learned Single Judge, after taking into consideration the rival stands of the parties, has disposed of the writ petition by leaving the parties to take recourse to arbitration. The learned Single Judge has also made it clear that the parties may either agree upon an arbitrator and refer their disputes to him/her, or, in the event of the parties failing to arrive at an agreement, they would be at liberty to take recourse to the provision of the Arbitration and Conciliation Act, 1996.
8. On behalf of the appellants, it was argued before the learned Single Judge that as per Clause 21.1 of the agreement executed between the parties, the issues which have attained finality cannot be disputed before the Arbitrator.
9. The learned Single Judge, while rejecting the said argument made on behalf of the appellants before it, has observed as under:
"14. From the above quoted Clause more particularly Clause 21.1, it has been stipulated as what disputes can be referred to arbitration. Mr. D. Mozumder, the learned Senior counsel appearing on behalf of the Petitioners though submitted that the imposition of the liquidated damages have already attained finality and as such the arbitration clause cannot be adequate and effective remedy. This submission however has been refuted by Mr. S. Dutta, the learned Senior counsel appearing on behalf of the Respondent Nos. 2 to 7. This Court have given due consideration to the respective submissions. A perusal of Clause 21.1 stipulates that except as otherwise provided, all questions, disputes or difference in respect of which the decision had not been final and conclusive arising between the contractor and the authority in relation to or in connection with the contract shall be referred for arbitration in the manner provided and the sole arbitrator to be appointed as stipulated in sub-clauses (i), (ii) and (iii).
Page No.# 7/9 The use of word "final and conclusive" would only mean and has to be construed as such questions, disputes or difference which have attained finality on account of acceptance of the decision or have attained finality on the basis of the terms and conditions agreed upon by the parties. In the opinion of this Court, the decision as regards the imposition of liquidated damages was taken on 01.08.2014 i.e. much after the filing of the writ petition. The continuation of the litigation by way of the instant proceedings pursuant to the order dated 01.08.2014 further shows that the Petitioners have not accepted the order dated 01.08.2014 and as such, the dispute as to whether the imposition of liquidated damages upon the Petitioners in respect to the 3 (three) contracts in question was as per the terms and conditions of the contract continues to be alive and as such, the submission so made by Mr. D. Mozumder, the learned Senior counsel appearing on behalf of the Petitioners to the effect that the arbitration clause cannot be made applicable in the opinion of this Court is misconceived.
10. The learned Single Judge has also taken into consideration Clause 14 of the special conditions of the contract agreement executed between the parties and has come to the conclusion that the dispute involved not only touches on the interpretation of Clause 14 of the special conditions of the contract but it would also require various documents to be taken note of to ascertain as to whether Force Majeure clause could have been invoked after completion of the contract, or whether there are documents to the effect that during the period of the contract steps were being taken by the contractor, i.e. appellants herein, for the purpose of invoking Force Majeure clause. The learned Single Judge, while referring to Clause 21.1 has opined that interest of justice would be met if the parties are referred to under Section 8 of the Arbitration and Reconciliation Act, 1996 rather than adjudicating the dispute by the writ court. The relevant observations made and the conclusions arrived at by the learned Single Judge in the impugned judgment are quoted hereunder:
"18. Now coming to the Arbitration Clause i.e. Clause 21.1, it would show that all questions, disputes or differences in respect of which a decision had not been final and conclusive arising between the contractor and the authority in relating to or in connection with the contract has to referred for arbitration. This Court cannot also be unmindful of Section 5 of the Arbitration and Conciliation Act, 1996 which stipulates that in respect of all matters governed by Part-1 i.e. Page No.# 8/9 domestic arbitration, no judicial authority shall intervene except where so provided in the said Part. Taking into account that the disputes involved herein pertains to interpretation of Clause-14 of the Special Conditions of Contract which touches on as to whether a recommendation so made by the Engineer-in- charge after completion of the contract can be construed to be a certification in terms with Clause-14 of the said Special Conditions of the Contract and also taking into account that various factual determinations has to be made, it is the opinion of this Court that the interest of justice would be met if the parties are referred to under Section 8 of the Arbitration and Conciliation Act, 1996 by this Court rather than adjudicating the dispute before this Court. This conclusion so arrived is based upon the reasons that the determination required to be made would entail adjudication of disputed questions of facts and law and further the materials before this Court would not be sufficient to adjudicate such questions.
19. At this stage, this Court further finds it relevant to refer to a judgment of the Supreme Court in the case of State of Goa Vs. Praveen Enterprises reported in (2012) 12 SCC 581 and more particularly paragraph No.13 which connotes what does the reference to arbitration mean. The said paragraph is reproduced hereinudner:
"13. "Reference to arbitration" can be in respect of reference of disputes between the parties to arbitration, or may simply mean referring the parties to arbitration. Section 8 of the Act is an example of referring the parties to arbitration. While Section 11 contemplates appointment of arbitrator [vide sub-sections (4), (5) and (9)] or taking necessary measure as per the appointment procedure under the arbitration agreement [vide sub-section (6)], Section 8 of the Act does not provide for appointment of an arbitrator, nor referring of any disputes to arbitration, but merely requires the judicial authority before whom an action is brought in a matter in regard to which there is an arbitration agreement, to refer the parties to arbitration. When the judicial authority finds that the subject-matter of the suit is covered by a valid arbitration agreement between the parties to the suit, it will refer the parties to arbitration, by refusing to decide the action brought before it and leaving it to the parties to have recourse to their remedies by arbitration. When such an order is made, parties may either agree upon an arbitrator and refer their disputes to him, or failing agreement, file an application under Section 11 of the Act for appointment of an arbitrator. The judicial authority "referring the parties to arbitration" under Section 8 of the Act, has no power to appoint an arbitrator. It may however record the consent of parties to appoint an agreed arbitrator."
20. Taking into account the above paragraph of the judgment in the case of Praveen Enterprise (supra), this Court therefore refers the parties herein to arbitration and leaving the parties to take recourse to their remedies by way of arbitration. It is further made clear that the parties before this Court may either Page No.# 9/9 agree upon an arbitrator and refer their disputes to him/her or failing agreement would be at liberty to take recourse to the provision of the Arbitration and Conciliation Act, 1996."
11. While concluding, the learned Single Judge has also observed that the observations made therein shall not affect the claims and counter claims of the parties, if they resort to arbitration for resolving the disputes involved.
12. Having gone through the impugned judgment and the material available on record, we do not find any infirmity in the conclusions arrived at by the learned Single Judge in the impugned judgment. The learned counsel appearing for the applicants/appellants has also failed to persuade us to take a contrary view.
13. Hence, we do not find any case for interference in the impugned judgment passed by the learned Single Judge.
In view of the above, the connected writ appeal, which is yet to be registered, be treated as dismissed.
The Registry is directed to register the connected writ appeal and treat it as disposed of.
JUDGE CHIEF JUSTICE Comparing Assistant