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16.The learned Counsel for the petitioner submitted that the claims made by the petitioner towards the refund of Earnest Money Deposit and Security Deposit was rejected even though, the first respondent in its reply statement before the Arbitrator has admitted that the formation was not kept ready. Further, according to the learned Counsel for the petitioner, the contract can be terminated only under clause 62 of the General Conditions of Contract, which requires 7 days notice and thereafter 48 hours notice to be issued to the petitioner before issuing the termination letter. Instead of relying upon clause 62 of the General Conditions of Contract, the Arbitrator has relied upon the internal circular of the Railways which reads as follows:

The instructions of Railway Board contained in letters dated 18.12.1987 and 17.05.2004 supra have been meticulously followed by the Railway Administration in issuing the Termination Notice dated 04.06.2013. Consequently, I hold that the Termination Notice dated 04.06.2013 is legally valid and enforceable.

17.In fact the termination letter dated 04.06.2013, also refers to only clause 62 of the General Conditions of Contract, but does not refer to the internal circular of the Railways which was relied upon by the Arbitrator in his findings. According to the learned Counsel for the petitioner, the termination of the contract is invalid since clause 62 of the General Conditions of Contract were not fulfilled by the first respondent.

24.The termination letter dated 04.06.2013, issued by the first respondent was issued under clause 62 of the General Conditions of Contract, which requires 7 days notice and thereafter 48 hours notice, whereas the learned Arbitrator in his findings has not considered the clause 62 of the General Conditions of Contract but has relied upon an internal circular of the Railways and based on that circular held that the termination is valid. Admittedly, no notice was given to the petitioner in accordance with clause 62 of the General Conditions of Contract.

27.The contract became frustrated because of formation (earth work) not being kept ready by the first respondent and therefore, the petitioner has rightly foreclosed the contract.

28.The findings of the learned Arbitrator has not considered the representations made by the petitioner in his letters dated 07.03.2013 and 16.02.2013, that the formation (earth work) was not ready in all respects and also the admission made in the reply statement before the learned Arbitrator that the formation was not ready. Without considering the vital documents, based on an internal circular of the Railways dated 17.05.2004, to which the petitioner is not a party, the learned Arbitrator has held the termination notice dated 04.06.2013 issued by the first respondent to be valid. Even though, the termination letter dated 04.06.2013, refers to clause 62 of the General Conditions of Contract, the learned Arbitrator without considering the same has given his findings that the termination is valid based on an internal circular of the Railways. Therefore, the findings of the learned Arbitrator that termination is valid is certainly perverse and shocks the judicial conscience of this Court. This Court after considering the materials available on record, comes to the conclusion that the termination of the contract by the letter dated 04.06.2013 is an invalid termination.