Gauhati High Court
M/S Dromos Engineers And Contractors ... vs M/S Khagemba Transmission And ... on 28 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010130542025
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1963/2025
M/S DROMOS ENGINEERS AND CONTRACTORS (OPC) PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT VILLAGE- SHALJHAR, P.O. KHATUL
HOOGLY WEST BENGAL-712611 REPRESENTED BY ITS DIRECTOR, MR
PARTHA SARATHI DUTTA,
VERSUS
M/S KHAGEMBA TRANSMISSION AND CONTRUCTION AND ORS
A REGISTERED PARTNERSHIP FIRM, AND MEMBER OF THE JOINT
VENTURE, M/S DECPL-KTC-ALTIS JV, HAVING HEAD OFFICE AT
PISHUMTHONG OINAM LEIKAI IMPHAL WEST, MANIPUR-795001 AND
REPRESENTED BY ITS MANAGING PARTNER, MR LANGPOKLAKPAM
TOMBA SINGH AGED ABOUT 68 YEARS.
2:UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER
N.F. RAILWAY MALIGAON
GUWAHATI-781011
3:THE PRINCIPAL CHIE ELECTRICAL ENGINEER/ CONSRUCTION
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
4:CEE/CON-III/MLG
NFR-CONST HQ-ELECTRICAL OFFICE OF GM
CONSTRUCTION N.F. RAILWAY
MALIGAON
GUWAHATI-781011
5:DY. CEE/CON/SCL
Page No.# 2/7
OFFICE OF CEE/CON-I/MLG N.F.RAILWAY
MALIGAON
GUWAHATI-781011
6:M/S DECPL-KTC-ALTIS JV
A JOINT VENTURE
VILLAGE- SHALJHAR
P.O. KHATUL
HOOGLY WEST BENGAL-712611
Advocate for the Petitioner : MD IMRAN, MR. R J SARMA,MR S HOQUE,MR S H
SIKDAR,MR. Y S MANNAN
Advocate for the Respondent : DY.S.G.I., MS P PHUKAN,SC, NF RLY
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
28.08.2025
1. Heard Mr. G. Kabir, learned counsel for the applicant M/s Dromos Engineers & Contractors (OPC) Private Limited and Mr. R. Sharma, learned Senior Counsel for the respondent no.1 M/s Khagemba Transmission & Construction & others (M/s KTC). No one appears for the other respondents today.
2. This application has been filed, praying for modification/clarification of the order dated 30.05.2025 passed in WP(C) 2974/2025, to the extent that till a Joint Venture (JV) Account is opened, the Railway Authorities should be directed to make payment of the Engineering, Procurement and Construction (EPC) contract bill, in the account of the lead member of the JV, i.e. the applicant.
Page No.# 3/7
3. The facts of the case in brief is that a JV comprising of the applicant, the respondent no.1 and ALTIS Holding Corporation had been formed, for doing the contract work pertaining to the EPC contract relating to an electrical railway line between Jiribam to Noney under the NF Railways.
4. In terms of the JV Agreement between the three parties at Clause 1.5.2, it was provided as follows :
"1.5.2 Without prejudice to the joint and several liability of all the members of the Consortium/Joint Venture, the Lead Member shall represent all the members of the Consortium/Joint Venture and shall at all times be liable and responsible for discharging the functions and obligations of the Contractor. The Contractor shall ensure that each member of the Consortium/Joint Venture shall be bound by any decision, communication, notice, action or inaction of the Lead Member on any matter related to this Agreement and the Authority shall be entitled to rely upon any such action, decision or communication of the Lead Member. The Authority shall have the right to release payments solely to the Lead Member and shall not in any manner be responsible or liable for the inter se allocation of payments among members of the {Consortium/Joint Venture}"
5. Accordingly, all payments regarding the EPC contract had been submitted in the account of the Lead Member, i.e. the applicant and not to any other account. However, a joint meeting of all the stakeholders of the JV and the railways was held on 09.05.2025, wherein it was decided that a JV account would be opened and till the same was opened, payment could be made in the Lead Member's account. The decision taken in the meeting dated 09.05.2025, wherein all the three JV Members and the railways participated is as follows :
"Decisions Taken:
Page No.# 4/7
1. Documents for opening of IV Account as required by BoB/Ballygunj will be arranged by KTC, DECPL will cooperate them. Till date up to which JV Account not opened payment will be made in Lead Member. KTC will arange JV account in 10 days.
2. KTC will execute the work from Khongsang to Noney. For execution of said work the necessary Design and Drawings will be submitted by KTC immediately.
3. Simulation of ROCS and FOCS at Khongsang will be jointly surveyed and planned by KTC and DECPL
4. KTC and DECPL will both submit ROCS design and drawings so that Change of Scope (COS), required may be processed in due course. The Change of Scope (COS) will be processed through JV account only."
5. Payment for ROCS will be done to DECPL up to Tunnel-20 beyond that ROCS payment will be done to KTC as per share in the JV agreement.
6. If length of ROCS is increased beyond the length in the agreement during simulation, then payment will be made to both the parties for their respective portion."
6. The respondent no.1 thereafter approached this Court by way of WP(C) 2974/2025, with a prayer for a direction to be issued to the authorities not to make any further payment in the bank account of the applicant and to deposit the payments of the EPC contract only in the JV account that was to be opened. On 30.05.2025, WP(C) 2974/2025 was disposed of, with a direction that any payments to be made by the railways on the EPC contract would, henceforth, have to be deposited in JV account, which was to be opened by the JV, comprising the applicant, the respondent no.1 and ALTIS Holding Corporation. In the order dated 30.05.2025 disposing of WP(C) 2974/2025, the No Objection letter dated 25.05.2025 issued by ALTIS Holding Corporation for setting up a JV account, for deposit of payments for the EPC contract, had also been reflected.
Page No.# 5/7
7. As stated earlier, the present application has been submitted by the applicant for a modification/clarification of the order dated 30.05.2025 passed in WP(C) 2974/2025, to the extent that till a JV account was opened, the railways should be directed to make payment of the EPC contract bills in the account of the applicant.
8. During the proceedings of the present I.A.(C) 1963/2025, the applicant had taken a stand that the respondent no.1 had not shown any inclination to open a JV account, as they had not signed the Application Form for opening the JV account, though the applicant and ALTIS Holding Corporation had signed the Application Form. Today, the Application Form which was to be submitted for opening a JV account in the State Bank of India, Bidhanagar Branch, Kolkata has been produced. A perusal of the same shows that the respondent no.1 has not signed the said Application Form in one place. On a query made to the counsel for the respondent no.1, as to why the respondent no.1 has not signed in the Application Form, the counsel for the respondent no.1 submits that unless and until the JV account is operated jointly by all the three JV account members, the opening of a JV account without the respondent no.1 being allowed to operate the same along with the other members, would nullify the purpose/necessity for opening a JV account.
9. Thus the issue that has been raised by the JV members is not with regard to whether a JV account should be opened or not. It is an admitted stand taken by all the parties that a JV account should be opened by the JV members. The dispute is centered around who can operate the JV account.
10. Though the applicant is desirous of operating the JV account with the Page No.# 6/7 respondent no.1 and ALTIS Holding Corporation jointly, the learned counsel for the applicant submits that at the time of signing the cheque for withdrawal of the money, the applicant should be allowed to withdraw the money on the basis of the signature of the applicant and any one of the two remaining JV members, who are present at the relevant point of time.
11. Mr. R. Sharma, learned counsel for the respondent no.1, on the other hand, submits that the respondent no.1 will always be ready and present to give their signature to the cheque for withdrawal of money, as and when the applicant wants to withdraw the money from the JV account, to be distributed between the JV members, as per their share of the contract/"loss & profit" in the JV. He however submits that the cheque for withdrawal of money should be signed jointly by all the JV account members, i.e. the applicant, the respondent no.1 and ALTIS Holding Corporation.
12. On considering the submissions made by the counsels for the parties and keeping in view the fact that it is an admitted fact that all the members of the JV want a JV account, this Court is of the view that at the time of withdrawal of money, all the members of the JV should sign the cheque jointly. In this regard, the respondent no.1 shall ensure that they are always present and ready to sign the cheque for withdrawal of money, inasmuch as, the very purpose of opening the JV account and operating the same would be lost, if all the members of the JV are not allowed to operate the same jointly. The disbursal of the amount withdrawn would thereafter be determined as per the share of participation of each JV members in the JV.
13. The above being said, the respondent no. 1 has given the required Page No.# 7/7 signature/s to the form signed by the applicant and ALTIS Holding Corporation in the Court today for opening a JV account. I.A.(C) is accordingly disposed of.
JUDGE Comparing Assistant