Orissa High Court
M/S. Jindal India Thermal Power vs M/S. Quartz Infra And Engineering on 30 August, 2022
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.04 of 2021
(Through hybrid mode)
M/S. Jindal India Thermal Power .... Appellant
Ltd.
Mr. C. Mukhopadhay, Senior Advocate
Mr. S.P. Mishra, Senior Advocate
Mr. Goutam Mukherjee, Senior Advocate
Mr. Satyajit Mohanty, Advocate
Mr. Prashant Mehta, Advocate
Mr. Asit Kumar Das, Advocate
Ms. Divita Vyas, Advocate
-versus-
M/S. Quartz Infra and Engineering .... Respondent
Pvt. Ltd.
Mr. Vegesna Subba Raju (in person)
CORAM: JUSTICE ARINDAM SINHA
ORDER
30.08.2022 Order No.
18. 1. Mr. Mukhopadhay, learned senior advocate appears on behalf of appellant. He submits, the award was mostly for damages on wrongful termination. He draws attention to paragraphs 393, 401 and 402 to submit, the Tribunal formed opinion on the one hand that non-payment of admitted bills together with encashment of bank guarantees were deliberate acts on part of his client to make respondent weaker, while on the other found there was no dispute that pace of work on part of claimant was slow, as had completed Page 1 of 1 // 2 // about 9% of the contract work within period of one year. Referring to paragraphs 323 to 325 in the award he submits, finding was appellant, without any notice having been issued, could not have made delay a ground, either for termination of contract or for encashment of the bank guarantees. He submits, there was no case advanced by claimant in the reference to that effect, as recorded in paragraph 325, that the proposition of law was not argued by parties. He submits, his client did not have opportunity to meet this proposition, but it was used by the tribunal in aid of respondent. He refers to work order by writing dated 14th December, 2011, from which clauses 12.4 to 12.7 are extracted and reproduced below.
" 12.4. We reserve the right to reduce / terminate this order either in part or in full.
12.5. You do hereby undertake to fully comply with the terms and conditions of this order and perform the jobs so assigned to our entire satisfaction. In the event of failure to do so, we shall have the right to terminate the assignment and claim damages as per applicable law and the terms of this Order.
12.6. All the work is to be done in conformity as per Tender Specifications.
12.7. You shall mobilize sufficient resources, as required for the job based on the target date of completion."
2. He submits, time was essence of the contract and his client's contention on termination was per provision in section 55 of Contract Act, Page 2 of 3 // 3 // 1872. He then draws attention to paragraphs 866, 872 and 873 in the award to show that entitlement of respondent for damages on wrongful termination of contract were given as reasons. He submits, he will rely on authorities to show firstly, termination can be on ground of delay and secondly a party to a contract can reserve to itself unilateral right to terminate it, as was with his client under the contract, without liability of damages.
3. List on 15th September, 2022 at 2:00 P.M. Appellant is expected to conclude its argument on adjourned date.
(Arindam Sinha) Judge Prasant Page 3 of 3