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12. On 31st May, 2014, petitioner received a purported Notice of Termination on the ground of delay in execution of work under the contracts and the respondent directed the petitioner to comply with all the obligations within 7 days from the date of issuance of the notice. It is the case of the petitioner that time was not the essence of the Contract and therefore no such stipulation was incorporated under the Contract. On the contrary, the petitioner was given time extensions starting from the year 2011 uptil atleast October, 2014 for completion of the transmission line and as such after the lapse of more than 3 years from the contractual completion date, it cannot be said that time was the essence. As such the respondent had no right to terminate the contract or act in pursuance of the said Termination Notice at this stage owing to the alleged delay in completion of the works particularly when it was the respondent who gave time extension till October, 2014.

It has been stated that owing to severe delays in performance of the works by the petitioner, respondent was constrained to issued various letters 2014 informing the petitioner of its intention to carry out the pending works under the contract itself/through contractors in continued absence of successful completion of works under the Contract by the petitioner.

16. As the petitioner was far from achieving and successfully completing the portions of Contract even as per its own schedule of completion shared with the respondent on 12th July, 2013, the respondent was constrained to issue a default notice dated 9th May, 2014, sent on 14th May, 2014 citing all previous correspondences. The petitioner however vide letter dated 23rd May, 2014 agreed to hiving off part of the project being fully aware of its limitation in completing the Contract in time and having defaulted thrice in meeting deadlines. It is stated in reply that as the petitioner failed to remedy the breaches within 14 days of receipt of notice of default dated 9th May, 2014, the respondent terminated the Contracts vide termination letter 30th May, 2014. On account of urgency involved in the completion of the work, the Contract was simultaneously awarded to M/s Tata Projects Limited on 30th May, 2014.

(d) refuses or is unable to provide sufficient materials, services or labor to execute and complete the Facilities in the manner specified in the program furnished., under GCC Sub-Clause 14.2 at fates of progress that give reasonable assurance to the Employer that the Contractor can attain Completion of the Facilities by the Time for Completion as extended, then the Employer may, without prejudice to any other rights it may possess under the Contract, give a notice to the Contractor stating the nature of the default and requiring the Contractor to remedy the same. If the Contractor fails to remedy or to take steps to remedy, the same within fourteen (14) days of its receipt of such notice, then the Employer may terminate the Contract forthwith by giving a notice of termination to the Contractor that refers to this GCC Sub-Clause 36.2.

(iii) The respondent on 26th February, 2014 again put the petitioner to notice that in light of the several delays accruing in the contractual works, it would be constrained to complete the remaining works either on its own or through another contractor. The NIT to M/s. Tata Projects Ltd. was eventually issued on 28th February, 2014 and in this context.

60. Subsequently and in the absence of any further progress in the construction works, the respondent was constrained to issue the Notice of Cure (as per the provisions of the Contract) on 9th May, 2014 - requiring the petitioner to cure the various breaches committed by it and as had already been indicated to it through extensive correspondence on record. Owing, however, to the petitioner's failure to comply with the same within a stipulated time and in the absence of any immediate response to this Notice (the response only coming on 28th May, 2014 without addressing any specific concerns over the form and content of the 9th May, 2014 Notice), the respondent was constrained to terminate the Contract forthwith on 30th May, 2014 and award the remaining works as regards the same to M/s. Tata Projects Ltd. on the same date.