Chattisgarh High Court
M/S R.K.Transport And Constructions ... vs National Thermal Power Corporation ... on 28 April, 2022
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for orders on :06/04/2022
Order passed on : 28/04/2022
WPC No. 1780 of 2021
M/s R.K.Transport and Constructions Pvt. Ltd. (A Company duly
registered under relevant Provisions of the Companies Act, 1956)
Through the Authorised Signatory having its Office At 65-A, Transport
Nagar, Korba, District Korba Chhattisgarh, District : Korba, Chhattisgarh
---- Petitioner
Versus
1. National Thermal Power Corporation Limited (A Government of India
Enterprise) having its Registered Office at NTPC Bhavan, Scope
Complex, 7 Institutional Area, Lodhi Road, New Delhi 100003., District :
New Delhi, Delhi
2. A.G.M., (NTPC, SSC) Western Region- II, NTPC Sipat PO- Ujjwal
Nagar, District Bilaspur, (Chhattisgarh) Pin- 495555, District : Bilaspur,
Chhattisgarh
---- Respondents
For Petitioner : Shri Kshitij Sharma and Shri Rishabh Garg, Advocates. For Respondents : Shri B.D. Guru, Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 28/04/2022
1. It is submitted that the petitioner is a transport company. The respondent company issued a notice inviting tender dated 19-07-2019 inviting bids for transportation of pond ash from Lagoons at Dhanras Ash Dyke and filling in the same part of Manikpur Open Cast Mine Pit.
2. The petitioner participated by submitting bid and he was successful bidder. Work order was issued to the petitioner on 27-11-2019 (Annexure- P/3). The petitioner then deployed his vehicles which were Tata trailers. The officials of the respondents objected. The petitioner immediately brought -2- this issue to the notice of respondent No.2, vide Annexure-P/4. In response respondent sent a communication dated 18-12-2019 (Annexure-P/5), that PO conditions provides for preferably Hywa or vehicle of higher capacity and in view of the rules formulated by DGMS (Director General of Mine Safety), TATA trailer cannot be allowed in the mining areas. The petitioner responded by communication dated 30-12-2019 (Annexure-P/6) mentioning that TATA trailers are of higher capacity than Hywa, therefore, they can be plied on roads of the mines area and thus, the petitioner requested for submission of revised price bide or in the alternative for cancellation of the work order and refund of EMD. The respondents by reply dated 09-01-2020 (Annexure-P/7) declined the request of the petitioner and threatened him with consequences. The petitioner then made another communication dated 15-01-2020 stating that contract has been been executed on the basis of misrepresentation of facts and law, therefore, it is void and termination of contract was requested. The respondent then by communication dated 21- 01-2020 (Annexure-P/9) terminated the contract, alleging breach on the part of the petitioner and also showing intent to refer to Clause 47.3.1 of General Conditions of Contract. The petitioner then by letter dated 06-11-2020 requested for settlement of dispute as per Clause 8.1 of the GCC and then again sent reminder dated 11-12-2020 (Annexure-P/10) for the same.
The petitioner then participated in the conciliation proceeding, but his representation was not considered and he was issued communication dated 12-01-2021, by which the petitioner has been proposed to be banned for a period of three years. The petitioner preferred WPC No.989/2021 before this Court challenging the arbitrariness of the letter dated 12-01-2021 (Annexure-P/14), which was disposed off as withdrawn by order dated 24- -3- 02-2021.
It is submitted, that the issue raised is this, whether a party in contract can decide the breach. Further, issuance of notice Annexure-P/1 dated 18-02-2021 is against the principles of natural justice. Reliance has been placed on the order of this Court passed in WPC No.817/2016 (M/s Kymore Engineering Works Pvt. Ltd. Vs. State of Chhattisgarh and others) on 02-08-2017, in which it is held that a party to an agreement cannot be an arbitrator in his own cause. Reliance has also been placed on the order of this Court in WPC No.1297/2021 (Sharda Offset Printers Pvt. Ltd. Vs. Chhattisgarh Textbook Corporation and another) delivered on 08-09-2021 and prayer has been made for grant of relief as prayed by quashing the notice dated 18-02-2021(Annexure-P/1).
3. Shri B.D. Guru, learned counsel for respondents opposes the submissions and submits that the impugned order, Annexure-P/1 has been passed after giving opportunity of hearing to the petitioner and this order is appealable under Clause 5.11, before the appellate authority, under the Policy and Procedure for Withholding and Banning of Business Dealings. Clause 8.1 of General Conditions of Contract (GCC) provides for resolution of dispute by Mutual Consultation. In case the parties fail to resolve the dispute by mutual consultation, then further remedy is Resolution of Dispute through Expert Settlement Council as mentioned in Clause 8.2 of the GCC. Therefore, the petitioner has remedy available and without availing the same he has filed this petition, which is not maintainable. In the notice inviting tender under the head of Scope of Work and Additional Special Conditions of Contract and under the Sub-head of Work Site and route, it was very clearly mentioned that deployment of loading equipment and -4- placement of transporting vehicles (preferably Hywa or vehicle of higher capacity) includes for transportation and further Clause 15 of the same Scope of Work and Additional Special Conditions of Contract mentions about Adherence to Applicable Laws which includes the terms of DGMS circulars which have effect of rules. It is submitted that execution of work through tractor, trailers etc. had been a bad experience earlier. Therefore, there is specific direction for plying the vehicles like Hywa or vehicle of higher description in which the petitioner has very clearly failed and he has failed to comply with the tender conditions. Hence, the ban imposed upon the petitioner is proper in accordance with law and rules. Hence, the petition may be dismissed.
4. In rebuttal, it is submitted by learned counsel for the petitioner that the petitioner had always intended to ply the vehicles as specified. Therefore, the petitioner is entitled for relief.
5. Considered on the submissions.
6. As per the notice inviting tender, it was specific clause that there shall be deployment of loading equipment and placement of transporting vehicles (Preferably Hywa or vehicle of higher capacity), which can easily ply on roads as well as within mining areas. The petitioner has continuously insisted on plying TATA trailers, relating to which the respondents had objection, that use of trailer is prohibited under the DGMS circular/Mining Rules. On the representation made by the petitioner, the mutual discussion has also taken place, but the respondents had not agreed to the petitioner proposition for allowing him to ply TATA trailers for execution of the work order and therefore, the contract failed. It is not a case in which the respondents have decided the breach of contract. From perusal of the -5- communication letters, it is very clear that the petitioner never offered to ply vehicles like Hywa or such vehicles of higher description than Hywa, regarding which there is clear mention in the notice inviting tender and also on the various communications sent by the respondent authorities. As regards the passing of impugned order (Annexure-P/1), it is clear that the petitioner was given opportunity of hearing before passing of this order and further, this order is appealable under the Policy & Procedure for Withholding and Banning of Business Dealing, which is a policy framed by the respondents regarding which there is specific clause 5.11 present. Hence, the petitioner has opportunity to file appeal against the impugned order before the appellate authority. Therefore, I am of this view that this petition is not maintainable. Hence, this petition is dismissed and disposed off and the petitioner is granted liberty to file appeal under the clause and the policy mentioned hereinabove, before the appellate authority and if any such appeal is filed before the appellate authority then the said authority is expected to consider on the same by giving opportunity of hearing to the petitioner and others concerned and decide the same in accordance with law, rules and also terms of the contract present between the parties. With these observations, the petition is disposed off.
Sd/-
(Rajendra Chandra Singh Samant) Judge Aadil