Jharkhand High Court
M/S. Kmc-Eci(Jv) Represented Through ... vs The State Of Jharkhand Through The ... on 2 May, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:13181
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 99 of 2025
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M/s. KMC-ECI(JV) represented through its authorized signatory Peddu Srinivasa Rao son of Late Peddu Venkata Ratnam, the authorized representative of the petitioner company having its principal office at Corporate House, Shilpa Homes Layout, Gachibowli, Hyderabad (Telangana) and having its corporate office at KMC-ECI (JV), Bukru, P.O.& P.S. - Keredari, Hazaribagh ... ... Petitioner Versus
1. The State of Jharkhand through the Principal Secretary, State Highway Authority of Jharkhand, , Ranchi
2. The State Highway Authority of Jharkhand (SHAJ), Ranchi represented by its Chief Executive Officer
3. The Principal Secretary, the State Highway Authority of Jharkhand (SHAJ), Ranchi
4. The Chief Executive Officer, the State Highway Authority of Jharkhand (SHAJ), Ranchi
5. The Member Technical, the State Highway Authority of Jharkhand (SHAJ), Ranchi
6. The Engineer-in-Chief, the State Highway Authority of Jharkhand (SHAJ), Ranchi
7. The Central Bank of India represented by its Senior Branch Manager, having its office at Corporate Finance Branch, Bank Street, P.O. & P.S. - Koti, District- Hyderabad (Telangana)
8. IDBI Bank, represented by its Senior Branch Manager having its office at Specialized Corporate Branch, P.O. & P.S.- Chapel Road, District- Hyderabad (Telangana) .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Amit Kumar Das, Advocate For the Respondents :
Order No. 10 Dated: 02.05.2025 The present Civil Miscellaneous Petition has been preferred by the petitioner seeking clarification of the order dated 15.05.2018 passed by this court in W.P.(C) No. 7190 of 2017 to the effect that the liberty granted to the petitioner in Paragraph nos. 32, 33 and 35 of the said order to invoke arbitration clause of the EPC contract agreement i.e., clause- 26 was in relation to all grievances raised by it including that of termination of its contract. It has also been prayed to clarify that the findings as 1 2025:JHHC:13181 well as the factual observations made by this Court in the said order would not prejudice the case of the parties before the learned Arbitral Tribunal.
2. Learned counsel for the petitioner submits that the petitioner had preferred writ petition being W.P.(C) No. 7190 of 2017 challenging the termination order bearing no. 1668 dated 07.12.2017 whereby the State Highways Authority of Jharkhand (in short, "SHAJ") had taken decision to terminate its contract and had also prayed for quashing the letter no. 1670 dated 07.12.2017 issued under the signature of the Member (Technical), SHAJ whereby the Senior Manager, Central Bank of India, Corporate Finance Branch, Bank Street, Koti Hyderabad had been directed to encash the bank guarantee deposited by the petitioner towards the performance security. The said writ petition was disposed of by this court vide order dated 15.05.2018.
3. It is further submitted that the order dated 15.05.2018 passed by this court in W.P.(C) No. 7190 of 2017 had intended to grant liberty to the petitioner to raise all the contentions before the learned Arbitral Tribunal including the question of termination of contract which would be evident from reading of paragraph nos. 32 and 35 of the said order, however a doubt has cropped up from paragraph- 33 of the said order in which the liberty granted to the petitioner seems to be only in relation to encashment of the performance bank guarantee deposited by it.
4. It is also submitted that the question with respect to legality of encashment of the performance security cannot be decided by 2 2025:JHHC:13181 the learned Arbitral Tribunal unless it also decides the legality of the termination of contract.
5. Learned counsel for the petitioner further submits that the petitioner had filed an application being Arbitration Application No. 11 of 2020 before this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking direction to appoint Arbitrator for resolution of the dispute which was disposed of by a co-ordinate Bench of this Court vide order dated 23.06.2022 appointing second Arbitrator for resolution of dispute as well as providing liberty to the parties to raise all the legal issues for consideration by the Arbitrators in accordance with law which invariably included the dispute qua termination of contract.
6. It is also submitted that on the one hand, the respondent - SHAJ has tried to justify the validity of the termination of contract before the Arbitral Tribunal, however on the other hand, it has claimed that the matter of termination of contract has already been decided by this Court in its order dated 15.05.2018 passed in W.P.(C) No. 7190 of 2017. Thus, the petitioner has been constrained to approach this Court seeking clarification of the order dated 15.05.2018. It is expedient in the interest of justice that the order dated 15.05.2018 passed by this court in W.P.(C) No. 7190 of 2017 should suitably be clarified to the effect that the liberty granted to the petitioner in paragraph nos. 32 and 33 of the said order to invoke arbitration is in relation to all the grievances of the petitioner including that of termination of contract.
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7. Heard learned counsel for the petitioner and perused the order dated 15.05.2018 passed by this Court in W.P.(C) No. 7190 of 2017, the relevant part of which reads as under: -
"32. Under the aforesaid circumstances, I am of the considered view that after taking decision for termination of contract agreement, the respondent- SHAJ has rightly invoked Clause 23.6.1 of the EPC contract agreement and has encashed/appropriated the performance security as a predetermined compensation. If the petitioner has any grievance, it may invoke Clause 26 of the EPC contract agreement.
33. In view of the discussions made herein above, the present writ petition is disposed of with the following observations:
(i) No interference is warranted with the order of termination contained in Memo no. 1668 dated 07.12.2017 as the same does not suffer from any arbitrariness, unreasonableness, irrationality, biasness and mala fide.
(ii) So far the order of encashment of performance security deposited by the petitioner is concerned, the same is within the competence of the respondent-SHAJ. However, the petitioner is at liberty to invoke clause 26 of the EPC contract agreement."
8. Generally, Civil Miscellaneous Petition (C.M.P.) is filed for correction of typographical error or omission of a word, etc. in a judgment or order, however if such a petition is filed seeking review or modification of an order or judgment, the same cannot be entertained. The present C.M.P. has been filed seeking clarification of the order dated 15.05.2018 passed in W.P.(C) No. 7190 of 2017 not because any such clarification is found necessary, rather the applicant actually wants a review of the order dated 15.05.2018 passed in W.P.(C) No. 7190 of 2017. I am of the view that a party cannot be permitted to claim review in 4 2025:JHHC:13181 the garb of filing a Civil Miscellaneous Petition. Undoubtedly, Civil Miscellaneous Petition seeking clarification or modification of the order or judgment touching the merit of the matter is not maintainable. If any error is apparent on the face of the record, an application for review can be filed. What cannot be done directly cannot be permitted to be done indirectly.
9. On perusal of the prayer made in the present C.M.P., it appears that in the garb of clarification, the petitioner in fact has sought review of the order dated 15.05.2018 passed in W.P.(C) No. 7190 of 2017 contending that vide said order, the petitioner has been granted liberty to invoke arbitration clause of the EPC contract agreement in relation to all grievances of the petitioner including termination of contract. The petitioner has further sought clarification that the findings given by this court in the said order should not prejudice the case of the parties before the learned Tribunal. I am of the view that such kind of prayer cannot be entertained by way of Civil Miscellaneous Petition.
10. Moreover, In the light of the order dated 15.05.2018, the petitioner invoked the dispute resolution process as contained in Clause 26 of the EPC Contract and by now the parties have led their respective evidences in the arbitral proceeding and the matter is at the stage of argument of the parties.
11. The present C.M.P has been filed on 29.11.2024 i.e., after about more than six years from the date of order passed in the aforesaid writ petition without giving any cogent explanation for committing such an inordinate delay in filing the same. If the 5 2025:JHHC:13181 petitioner had any doubt in the said order, it should have promptly approached this Court invoking appropriate jurisdiction. Hence, I am of the view that the conduct of the petitioner is not bonafide, rather the present C.M.P. appears to have been filed to delay the arbitral proceeding which certainly amounts to abuse of the process of the Court.
12. Otherwise also, the matter is pending before the Arbitral Tribunal which is competent enough to interpret the order dated 15.05.2018 passed by this Court in W.P.(C) No. 7190 of 2017.
13. The present C.M.P. is accordingly dismissed.
14. This Court takes serious note of the conduct of the petitioner as it has consumed valuable time of the Court by filing this frivolous petition. Such attitude of the petitioner is deprecated and it deserves to be saddled with an exemplary cost.
15. Accordingly, the petitioner shall pay a cost of Rs.50,000/- in favour of the Jharkhand State Legal Services Authority (JHALSA), Ranchi within four weeks from today and shall file proof of the same, failing which the office shall place this case before the Bench to take appropriate action against it.
(Rajesh Shankar, J.) Ritesh/A.F.R. 6