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12.3 Mr. Khare invited the attention of this Court to few relevant averments made in the affidavit-in-reply. We quote those averments as under :-

"9. I further say & submit that the petitioner is trying to take shelter of pandemic situation for its non-performance of contract and trying to invoke Force Majure. It is to state that the Government of India had imposed a nationwide lockdown by order dated 24.03.2020 under Disaster Management Act, 2005 with effect from 2503.2020 due to Covid-19 pandemic situation. The copy of the notification dated 2 .03.2020 is annexed herewith and marked as Annexure-R-III As per the said order the essential services were permitted to continue after maintaining SOPs (Standard Operating Procedures).Under the said lockdown order, the plant and operation of oil industries were considered as an essential service. Thus, it was incumbent upon respondent to operate its SSEPT which could run smoothly only after efficient treatment of ETP for C/SCA/11391/2020 JUDGMENT DATED: 30/07/2021 which the maintenance and operation of the said ETP plant was awarded to the present petitioner. Thereby, meaning the activities and the scope of work under the subject contract was covered under the essential services.
10. I further say & submit that the petitioner instead of supporting respondent for smooth functioning of SSETP, had actually abandoned the contract during the lockdown period and had tried to invoke Force Majeure clause no.23.0 by its letter dated 29.05.2020 (Page No.62). In the said letter, the petitioner had pleaded lockdown due to Covid-19 pandemic situation for discontinuation of contract and invoking of force majeure. The respondent, vide its email dated 01.06.2020 and 09.06.2020(Page No.63), had replied to petitioner by communicating their decisions for rejecting such force majeure on the ground that
(a). there were no restrictions for essential services in District, Mehasana during the lockdown period from 23.03.2020 to 31.05.2020 and
(b). during the unlock period starting from 01.06.2020 such restrictions were further relaxed for all purposes by Government of India.

It is important to note that the petitioner had knowingly suppressed ONGC's reply email dt. 01/06/2020 in which ONGC had given above stated reasons for rejecting claim of Force Majeure. The copy of said ONGC email dt. 01/06/2020 is annexed herewith and marked as Annexure -- R-IV. Thus, as per the settled position of law by Hon'ble Supreme Court in case of (2017) 14 SCC 80, Energy Watchdog and ors vs Central Electricity Regulatory Commission and ors., there was no permanent inability of the petitioner for non-performance of contract.

13. I say and submit that it is evident from the above facts that the petitioners have failed to perform the contract since C/SCA/11391/2020 JUDGMENT DATED: 30/07/2021 inception and are now trying to take advantage a force majeure clause in guise of nationwide lockdown between the 23.03.2020 to 21.05.2020. It is to state that as per clause No.23 of GCC, it has been agreed between the parties that a force majeure shall mean an Act of God, war, civil riots, fire, flood, directly affecting the performance of the contract. Under the said clause it is also to agree that the petitioner was required to give notice in writing for force majeure within 72 hours of beginning of such cause. Whereas in the instance case the lockdown was implemented by official order dated 23.03.2020 which was highly circulated in media and petitioner had claimed such force majeure after expiry of entire lockdown period by letter dated 29.05.2020.