Dismissed

M/S B.C. Biyani Project Pvt. Ltd. through Its Authorized Signatory Shri. Sanjay Patil v. the State of Maharashtra, through Its Secretary Irrigation Dept. Mumbai and 3 Others

Bombay HC29 Sept 2014WP/1499/2014

Case brief

AI extract

What is this about?

High Court Nagpur Bench dismissed two joined writ petitions challenging the cancellation of a dam construction contract due to serious disputes of fact regarding soil availability and completion timelines, holding that the writ jurisdiction could not be exercised under such circumstances.

What did the court decide?

Petitions dismissed with no order as to costs; points in WP 5299/2014 kept open.

M/S B.C. Biyani Project Pvt. Ltd. through… — Contract and Commercial Disputes | Bombay HC (2014)

Order

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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WRIT PETITION Nos. 1499 & 5299 OF 2014. M/s. B.C. Biyani Projects Pvt. Ltd.

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VERSUS

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The State of Maharashtra and others.

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Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders.

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Shri S.Sanyal, Advocate for the Petitioner. Shri D.P. Thakare, Addl. G.P. for respondent no. 1. Shri S.G. Jagtap, Advocate for respondent nos.2 to 4.

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CORAM : SMT. VASANTI A NAIK & P.R. BORA, JJ.

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DATED : SEPTEMBER 29, 2014.

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Heard.

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Since the facts involved in both the writ

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petitions are identical, the same are heard together and

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are decided by this common order.

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The contract in respect of the work relating

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to the construction of a Dam was awarded to the

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petitioner in the year 2006 by the Executive Engineer,

Order

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Akola Irrigation Division, Akola. According to the petitioner, the soil necessary for filling up the dam site was not made available and therefore, it was not possible for the petitioner to complete the contract within the time frame. According to the petitioner, the soil strata was hard, requiring more time for completion of the work. It is averred in the petition that the time was extended from time to time, and ultimately the petitioner was granted time till 31.10.2013 to complete the work under the contract in terms of the undertaking given by the petitioner in a Civil Suit filed by the petitioner before the Civil Court at Akola in the year 2011.

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Since the respondent no.4 was inclined to cancel the contract, the petitioner filed an appeal under Clause 30.2 of the Agreement. Since the appeal was not decided and the respondents were desirous of canceling the contract, the petitioner filed Writ Petition No.1488/2014 seeking various directions including the direction to the Secretary to decide the appeal filed by the petitioner within a time frame.

Order

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However, during the pendency of the Writ Petition No.1499/2014, the respondents canceled the contract by the order dated 28.07.2014.

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The petitioner has filed Writ Petition No.5299/2014 for a declaration that the cancellation of the contract by the respondent is bad in law and is liable to be set aside. The petitioner has also sought a declaration that the respondents do not have any right to impose penalty of Rs. 10,000/- per day on the petitioner. Certain other directions are also sought.

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On hearing the learned counsel for the parties and on perusal of the affidavit-in-reply filed on behalf of the respondent nos. 3 and 4, it appears that the relief sought by the petitioner in Writ Petition No.5299/2014 cannot be granted and the cause for filing Writ Petition No.1499/2014 has been rendered infructuous due to the cancellation of the contract, which is subjected to challenge in Writ Petition No.5299/2014. Several disputed questions of facts arise for determination in these writ petitions. It is the case of the petitioner that the petitioner could not be in

Order

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a position to complete the contract within the time frame due to the non-availability of the soil for filling up dam site. It is stated that the soil strata was hard and therefore, the petitioner was not able to complete the contract within the stipulated time. These facts are seriously disputed by the respondent no.4 in the affidavit in reply. It is also pointed out by the learned counsel for the respondent no.4 on the basis of the affidavit in reply, that the petitioner had filed Regular Civil Suit No.115/2011 in the Civil Court at Akola seeking a declaration that the action of the respondent no.4 of terminating the contract by the letter dated 09.03.2011 is illegal. It is brought to the notice of this Court that in the said suit a declaration was also sought by the petitioner that the contract between the petitioner and the respondent nos. 3 and 4 was still in force. In the said suit, an undertaking was given by the petitioner that the petitioner would complete the contract in any case before 31.10.2013. It is stated that the petitioner did not complete the contract before 31.10.2013, therefore, the contract was canceled by an

Order

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order dated 28.07.2014. It is clear from the facts narrated herein above and the affidavit in reply filed on behalf of the respondent nos. 3 and 4 that the facts asserted by the petitioner are seriously disputed by the respondent nos. 3 and 4. It would not be proper in the facts of this case to entertain and decide the writ petition in exercise of the writ jurisdiction.

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Hence, the writ petitions are dismissed with no order as to costs. The points raised in Writ Petition No.5299/2014 are however, kept open.

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JUDGE JUDGE

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Rgd

M/S B.C. Biyani Project Pvt. Ltd. through Its Authorized Signatory Shri. Sanjay Patil v. the State of Maharashtra, through Its Secretary Irrigation Dept. Mumbai and 3 Others

Case brief

What is this about?

What did the court decide?

M/S B.C. Biyani Project Pvt. Ltd. through Its Authorized Signatory Shri. Sanjay Patil v. the State of Maharashtra, through Its Secretary Irrigation Dept. Mumbai and 3 Others

Case brief

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What did the court decide?

What the court decided

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Coram

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