M/s Jindal Vegetable Products Limited vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

(Via video conferencing)

The petitioner who contends and claims itself to be a Limited Company, which has been incorporated under the provisions of the Companies Act of

1956, is engaged in the construction work and construction related activities, including the construction of canals etc.

Admittedly as per the writ assertions, the respondents invited the tenders from probable contractors, by way of a publication of the tender notice

dated 08.06.2017, and on the basis of the tender inquiry bearing no.4/AA/2017-2018, the petitioner submitted his tender and had participated in the

tendering process for awarding the plantation work of inspection house at Mundiyan Kalan, Block Bazpur, District Udham Singh Nagar.

Consequent to the culmination of a contract, a work contract No.10/EE/2017-2018, dated 20.06.2017, was executed in favour of the petitioner,

which according to the terms of the contract and the schedule of completion of work given by the petitioner in paragraph no.6 of the writ petition, the

work was supposed to be completed, as back as on 19.09.2017.

The petitioner contends that an admitted amount of Rs. 11,19,884/- has fallen due to be paid by the respondents, which he contends that despite of

various efforts made by him by approaching the authorities, the said amount was not paid to him and hence he contends that it was not a disputed

amount, hence he filed the writ petition being WPMS No.601 of 2019, M/s Jindal Vegetable Products Limited Vs. State of Uttarakhan,d

which was dismissed by the Coordinate Bench with the liberty left open for the petitioner to file a fresh vide order dated 12.06.2019, as the very

foundation of the writ petition, i.e. the contract bond dated 20.06.2017 was not filed with the writ petition.

What is relevant here, is to observe is that according to the case of the petitioner himself, the amount shown to be fallen due to be paid to him was

on 20.07.2017, and he sat over it and approached the writ court raising a claim for the first time in the year 2019, and the writ petition was decided on

12.06.2019, on the ground that the copy of the contract, which was the foundation of the dispute was not on record, despite of the said liberty granted

to the petitioner way back in the year 2019 petitioner yet again slept over his claim. Now the writ petition has been filed in 2021, contending thereof

that a writ of mandamus may be issued to the respondents, to make the payment to the petitioner of the amount due along with the interest @ 15%,

which according to the contention of the petitioner is not a disputed amount. He further submits that after the decision of 12.06.2019, he collected the

various documents from the respondents and that itself reflects that the amount as claimed by the petitioner has fallen due to be paid, but I am of the

view that looking to the correspondence made on 26.11.2020, by way of a Letter No.3772, yet again there happens to be an almost identical

controversy, which was in dispute of getting the work done, even without a budget being sanctioned and the proceedings were being drawn against the

then Executive Engineer, for getting the contract executed without sanction of budget, was once again an issue which entail a consideration in the

present case also. Hence, it cannot be said in view of the said observations that the said amount is an admitted amount, which was due to be paid by

the respondents.

This time when the petitioner has filed the present writ petition, he has annexed the contract and as per Clause 44 of the contract, which reads as

under:-

“Every dispute, difference or question which may at any time arises between the parties have to or any person claiming under them, the thing

arising out or in respect of this deed or the subject matter thereof, shall be referred to the arbitration of addl. Chief Engineer/Superintending Engineer

or any person nominated by him. It will be no objection to any such appointment that the arbitrator so appointed is Government servant than he had to

deal with matter to which the contract relates and that in the course of his duties as Govt. servant as had expressed views on all of any of the matters

in dispute or difference. In the event of the arbitrator to where the matter is originally referred being transferred or vacating his office or being unable

to act for any reason whatsoever he, shall either enter upon the reference himself or appoint another person to act as arbitrator. Such person shall be

entitled to proceed with reference from stage it was left by his predecessor. It is also a term of this contract that no person other than a person

appointed as aforesaid should act is arbitrator and if for any person that is not possible the matter is not to be referred to arbitration at all. In all cases

where the court of the claim in dispute is Rs.50000/- (Rupees fifty thousand) and above the arbitrator shall give reasons for the award.â€​

It carries an arbitration clause and since the controversy requires an appreciation of evidence and facts, coupled with the facts that the time slab,

which has passed in determination of the inter se rights between the petitioner and the employer, this writ petition would be barred by latches as its a

claim of 2016 amount, hence would not be tenable under Article 226 of the Constitution of India, as the petitioner would be bound by the Arbitration

Clause No.44, of the contract bond dated 20.06.2017, for the determination of his claim.

Hence this writ petition is dismissed on the ground that the petitioner has to approach the Arbitrator for enforcement of his rights under the terms of

the contract. Accordingly, the writ petition stands dismissed.