P. Chokkalingam vs The Divisional Engineer Telecom and The Deputy General Manager, Bharat Sanchar Nigam Ltd., Transmission Project

M. Jaichandren, J.—Heard Mr. S. Srinivasa Raghavan, the learned Counsel appearing on behalf of the Petitioner, as well as Mr. K. Govindarajan, the learned Counsel appearing on behalf of the Respondents.

It is stated by the learned Counsel appearing on behalf of the Petitioner that the Petitioner had entered into an agreement with the first Respondent, on 21.01.2009, for carrying out the trenching and pipe laying works, for the Sankarankovil Telephone Exchange. The first Respondent had issued the work order, on 21.02.2009. The time allowed for the completion of the works was 133 days or 19 weeks, commencing from 27.02.2009. Accordingly, the works had to be completed, on or before 09.7.2009.

It is further submitted by the learned Counsel appearing on behalf of the Petitioner that the Petitioner was suffering from a Cardio Thorasic disease and therefore, he could not commence the works, as he had already planned. Therefore, he had applied for extension of time limit for the completion of the works. Accordingly, a fresh work order had been granted, on 18.04.2009, granting the Petitioner 133 days or 19 weeks to complete the works, commencing on or before 24.04.2009. Even though the Petitioner had taken all the efforts to complete the works allotted to him, the first Respondent had terminated the contract entered into between the Petitioner and the first Respondent, by the impugned order, dated 13.07.2009. He had also issued the impugned consequential proceedings, dated 22.08.2009, inviting fresh tenders for the completion of the works.

The main contention of the learned Counsel appearing on behalf of the Petitioner is that the contract had been terminated by the first Respondent, by his impugned order, dated 13.07.2009, without issuing a prior notice to the Petitioner. Further, it had also been contented that the first Respondent has no authority or jurisdiction to terminate the contract, even before the extended period for the execution of the contract had come to an end. As per the extension granted to the Petitioner, the works had to be completed, on or before 04.09.2009. However, the impugned order had been issued by the first Respondent, on 13.07.2009, itself, without giving an opportunity of hearing to the Petitioner, by way of a show cause notice. Thus it is clear that the impugned order of the first Respondent, dated 13.07.2009, and the consequential proceedings, dated 22.08.2009, are arbitrary, illegal and void.

In the counter affidavit filed on behalf of the first Respondent it had been stated that due to the failure of the Petitioner to commence the works, the Respondent Bharat Sanchar Nigam Ltd., had incurred heavy losses. The existing subscribers were switching over to other service providers. In such circumstances, fresh tenders had to be called for to complete the works. It had also been stated that the Petitioner had failed to comply with the terms and conditions of the agreement to carry out the works within the specified time limit. Since, time was the essence of the contract, the first Respondent had terminated the contract, due to the failure of the Petitioner to carry out the works, by the impugned order, dated 13.07.2009. It had also been stated that the Petitioner had been clearly informed that the progress of the works would be monitored, as per the letter of indent and that no extension of time limit would be granted. It is wrong to state that the Petitioner had been granted extension of time, as claimed by him.

The learned Counsel appearing on behalf of the Respondent had submitted that the writ petition filed by the Petitioner before this Court, by invoking its writ jurisdiction, under Article 226 of the Constitution of India, is not maintainable, in view of the availability of an arbitration clause in Clause 5.111 of the agreement, entered into between the Petitioner and the first Respondent, on 21.01.2009.

The learned Counsel appearing on behalf of the Respondent had also placed before this Court, an order dated 30.04.2009, made in W.P.(MD) No. 12099 of 2008, passed by this Court, in similar circumstances, permitting the Petitioner therein to invoke the arbitration clause, to settle the dispute that had arisen between the said Petitioner and the Bharat Sanchar Nigam Ltd.

In reply, the learned Counsel appearing on behalf of the Petitioner had submitted that even though an arbitration clause was available in the agreement, entered into between the Petitioner and the first Respondent, the writ petition filed by the Petitioner is maintainable, in view of the fact that the first Respondent had passed the impugned order, dated 13.07.2009, without issuing a show cause notice to the Petitioner, which is in violation of the principles of natural justice, as held by Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, .

In view of the averments made in the affidavit filed in support of the writ petition and in view of the counter affidavit filed on behalf of the first Respondent and in view of the records available, and on considering the cases cited, this Court is of the considered view that the Petitioner has not shown sufficient cause or reason to grant the relief, as prayed for by the Petitioner, in the present writ petition. It is not in dispute that the Petitioner had failed to complete the works allotted to him, pursuant to the agreement entered into between the Petitioner and the first Respondent, on 21.01.2009, within the time specified therein. It is also not in dispute that there is an arbitration clause in the said agreement, which is to be invoked when a dispute arises between the Petitioner and the Respondent Bharat Sanchar Nigam Ltd. Even if it could be said that the first Respondent had issued the impugned order, dated 13.07.2009, terminating the contract, without issuing a show cause notice to the Petitioner, the Petitioner ought to have invoked the arbitration clause in the agreement, instead of invoking writ jurisdiction of this Court, under Article 226 of the Constitution of India. Even otherwise, the factual aspects of the dispute cannot be gone into by this Court, in the present writ petition. As such, it is clear that the present writ petition, filed by the Petitioner, is devoid of merits and therefore, it is liable to be dismissed, Hence, it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. However, it may be open to the Petitioner to settle the dispute, by invoking the arbitration clause of the agreement, dated 21.01.2009, if so advised, in the manner known to law.