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10. The respondent, on 17th January, 2023, sent a Notice alleging defaults of the petitioner under the Contract. In reply to the notice, the petitioner sent a letter dated 24th January, 2023 and denied all the allegations mentioned in the notice.

11. The respondent issued a notice of termination dated 31 st January, 2023 under Clause 63.1 of CoPA, giving a notice of 14 days, upon the expiry of which the respondent was automatically entitled to terminate the contract. The petitioner sent a reply to the said notice vide response dated 4th February, 2023. Thereafter disputes arose between the parties. It is the respondent‟s case that due to non-performance on the part of the petitioner which showed no progress in executing works even after lapse of six months (from 27th July, 2022 to 31st January, 2023) and after repeated reminders, the respondent was left with no option but to issue Notice of Intention To Terminate (NITT). This contention was vehemently refuted by the petitioner and it is under these circumstances that the petitioner, aggrieved by such action, has approached this Court through the present petition.

62. As per the petitioner, the delay in progress of works is attributable to respondent owing to delayed approvals. According to the petitioner, the work programme dated 18th August, 2022 was submitted in terms of original BOQ and with the consideration that the reciprocal obligations of the independent engineer/respondent were fulfilled before starting the construction works. While the contract was signed on 19th July, 2022 and the commencement date was fixed as 27th July, 2022, however, it is only on 23rd November, 2022 that the team leader gave approval for DBM and BC for km 107+100 to km 125+00 resulting in delay of 4 months. It is also argued on behalf of the petitioner that the respondent was also guilty of delaying the approval of work program, pending which, the petitioner could not have been expected to continue carrying on the work in project. The petitioner has also relied on the letter dated 8th February, 2023 to contend that upon approval of the revised work program by team leader, the entire basis of the dispute raised by the respondent through its NITT would stand negated and any termination after approval of the revised work program would be illegal. It was submitted by the respondent that the team leader had no authority to approve the revised work programme. It was submitted that the engineer had already issued a show cause notice/letter dated 13th February, 2023 to team leader to explain his NEUTRAL CITATION No.2023:DHC:3610 conduct in the peculiar circumstances and that the engineer vide its letter dated 15th February, 2023 had withdrawn/revoked the approval granted by team leader to the revised programme.

68. It is also the case of the petitioner that the respondent had not issued the NITT in terms of Clause 46.1 and that as such its issuance was illegal. As per the petitioner, issuance of NITT required the respondent to issue the notices under Clause 46.1 and Clause 37.4 of the GCC which were not complied with by the respondent. Further, NITT could not have NEUTRAL CITATION No.2023:DHC:3610 been issued pending dispute resolution mechanism invoked by the petitioner prior to issuance of the NITT. Per contra, learned senior counsel for the respondent submitted that no notice under Clause 46.1 was required before issuing NITT for 14 days and reliance was placed on Clause 63.1 to show that communication under the Clause 46 was non- conjunctive or a pre-requisite to Clause 63.1, in case, the respondent chose to invoke Clause 63.1(b)(ii). However, the NITT referred to various warning letters from Independent Engineer including letters dated 28th November, 2022, 3rd December, 2022, 5th December, 2022, 28th December, 2022, 17th January, 2023, 19th January, 2023, 20th January, 2023, 25th January, 2023 and 27th January, 2023 to the petitioner and thus, it is contended that the NITT was issued in terms of the Contract.

78. The petitioner during the arguments had further tried to impress upon this Court that vide the present petition under Section 9 of the Act, the petitioner has sought a stay on the NITT and not on Termination of the Contract. However, the petitioner falls short in its argument as under

the present Contract, it is necessary for the respondent to issue a NITT at least 14 days prior to the termination. A stay on the NITT would mean NEUTRAL CITATION No.2023:DHC:3610 stay on termination, inasmuch as, unless NITT is issued, the respondent in such contracts will never be able to terminate the Contract. The petitioner cannot seek to achieve something indirectly which it cannot achieve directly. The petitioner in its petition has itself pleaded, "if at the present stage, the respondent terminates the Contract with the petitioner, considerable loss and prejudice will be caused to the petitioner.... Further, if the respondent terminates the Contract, it will lead to grave loss of public money and inconvenience to the daily commuters of the national highway." Thus, the trinity test of granting an injunction as per the petitioner's own case has rested on the termination of the Contract. Further, this Court agrees with the argument put forth by the respondent that the petitioner by making such argument is attempting to seek a relief which otherwise cannot be granted directly. A court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power, a Court is bound to act within the four corners thereof.