Dismissed

M/S.P.K.Ores Ovt.Ltd. v. Orissa Mining Corporation Ltd.

Orissa HC6 Apr 2021WP(C)/607/2020

Case brief

AI extract

What is this about?

The High Court of Odisha disposed of a writ petition challenging an RFP floated by the Respondent Corporation. The Court held that since the one-year performance period granted by the sole Arbitrator had expired by the time the petition was heard, and no earlier execution proceedings were filed, the challenge is no longer maintainable.

What did the court decide?

The interim order staying the RFP is vacated. The writ petition is disposed of with no justification for entertaining a challenge to the RFP after the Award's one-year period expired.

M/S.P.K.Ores Ovt.Ltd. Vs Orissa Mining… — Contract and Commercial Disputes | Orissa HC (2021)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

W.P.(C) No.607 of 2020

¶3

M/s. P.K. Ores Pvt. Ltd.

¶4

Petitioner

¶5

Mr. B.P. Das, Advocate

¶6

-versus- Orissa Mining Corporation and another

¶7

…. Opp. Parties

¶8

Mr. A.K. Parija, Advocate General and

¶9

Mr. B.S. Tripathy-I, Advocate for Oppposite Party No.2

¶10

CORAM:

¶11

THE CHIEF JUSTICE JUSTICE B. P. ROUTRAY

Order No.

ORDER 06.04.2021

This matter is taken up by video conferencing mode.

¶16

The grievance of the Petitioner in the present petition is against a request for proposal (RFP) floated by Odisha Mining Corporation (OMC) (Opposite Party No.1) on 21^st December, 2019 for selection of mine operator for Khandbandh Iron Ore Mine through reverse auction bidding process.

¶17

The background facts are that an agreement No.8/2010-2011 dated 3rd September, 2010was entered into between the Petitioner and OMC awarding the aforementioned contract for operating the mine in question. Aggrieved by OMC terminating aforementioned contract by a termination letter dated 4/7^th September, 2015, the Petitioner invoked Clause 37.4 of the agreement and sought settlement of the dispute through arbitration. The sole Arbitrator adjudicated the

¶18

// 2 //

¶19

dispute and rendered an Award on 31^st January, 2019, the operative portion of which reads as follows:

¶20

“Thus, once it is held that the Contract/Work Order entered into between the Claimant Company and the Respondent Corporation is subsisting, the Agency shall perform the work within a reasonable period which I hold in 12(twelve) months time. After expiry of this period of one year, the Claimant Company under no circumstances can pray for renewal for further extension of time and the Respondent Corporation would be entitled to initiate appropriate action in accordance to Law and as per the Contract.”

¶21

According to the Petitioner, although the OMC filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 ('Act') challenging the said award, there was no stay granted thereof by the learned District Judge, Khurda. The grievance of the Petitioner is that even while the said Award was subsisting, the impugned RFP dated 21^st December, 2019 was floated and this, according to the Petitioner, was in clear violation of the Award.

¶22

The present petition was filed on 7^th January, 2020. On 17^th January, 2020, an interim order was passed staying the aforementioned RFP dated 21^st December, 2019. That interim order has continued since. It is may be noted that an I.A. filed by OMC for vacating the stay to permit to continue the bidding process pursuant to the RFP was dismissed by the Court on 2^nd November, 2020.

¶23

The other development that has taken place in the interim is that the twelve month period within which the Petitioner had to perform the contract, in terms of the Award, expired on 31^st January, 2020. The Petitioner appears to have filed an execution petition in the court

¶24

Page 2 of 5

¶25

// 3 //

¶26

of the learned District Judge, Khurda, long thereafter, on 11^th May, 2020.

¶27

Mr. A.K. Parija, learned Advocate General appearing on behalf of the OMC pointed out that there being no stay of the Award and with the one-year period granted to the Petitioner by the learned Arbitrator to complete the work having expired, there cannot be any further stay of the RFP dated 21^st December, 2019. He submitted that the Petitioner, if still aggrieved, should work out its remedies in the proceedings either under Section 34 of the Act or the execution proceeding that are pending.

¶28

Mr. B.P. Das, learned counsel for the Petitioner, on the other hand submitted that the impugned RFP having been issued even before the expiry of the one year period ought to be held to be invalid. The response of Mr. Parija, the above submission is that the last date for submission of bids was 14^th February, 2020 i.e. after the expiry of the one year period and therefore there was no violation of the operative portion of the award.

¶29

The above submissions have been considered. The fact of the matter is that the Award in question granted only one relief to the Petitioner i.e. holding that the termination of the contract to be invalid and thereby holding that the contract subsisted. Nevertheless, the learned Arbitrator added a rider that the Petitioner should perform its work within one year and that after the expiry of that period, "the Claimant Company under no circumstances can pray for renewal for further extension of time and the Respondent Corporation would be entitled to initiate appropriate action in accordance with law as per the contract."

¶30

Page 3 of 5

¶31

// 4 //

¶32

If, as is now sought to be contended by learned counsel for the Petitioner, the above rider should be interpreted as the one year period beginning to run only from such time that OMC makes it possible for the Petitioner to execute the contract, then the Petitioner ought to have taken steps either by filing a Section 34 petition itself or seeking appropriate clarification in the proceedings instituted by OMC before the learned District Judge. If indeed the Petitioner found that it was unable to execute the work it ought to have immediately filed an execution petition particularly since there was no stay of the Award granted by the Arbitrator. The Petitioner, however, failed to do so and filed the execution proceeding only on 11th May, 2020.

¶33

As far as the present petition is concerned, with the one-year period having expired, there appears to be no justification in continuing to entertain a challenge to the RFP dated 21^st December, 2019 which in any event, made it clear that the last date of submission of bids was 4 pm on 14^th February, 2020. thus the contract would have commenced only after the expiry of one-year after the Award. Therefore, a challenge to the impugned RFP dated 21^st December, 2019 cannot be entertained any longer. Clarifying that it would be open to the Petitioner to work out its remedies in the pending proceedings before the learned District Judge, the writ petition is disposed of in the above terms.

¶34

The interim order stands vacated.

¶35

As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out

¶36

Page 4 of 5

¶37

// 5 //

¶38

thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25th March, 2020.

¶39

(Dr. S. Muralidhar)

¶40

Chief Justice

¶41

( B.P. Routray) Judge

¶42

KC Bisoi

¶43

Page 5 of 5

M/S.P.K.Ores Ovt.Ltd. v. Orissa Mining Corporation Ltd.

Case brief

What is this about?

What did the court decide?

M/S.P.K.Ores Ovt.Ltd. v. Orissa Mining Corporation Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Jaya Sankar Acharya Vs State and Ors.

Kutra Gram Panchayat Vs State and Ors.

Mid East Integrated Steel Plant Vs Union of India

Pradeep Behera Vs State of Orissa

Manorama Acharya Vs the Authorised Officer Cum Chief Manager Punjab National Bank, Bbsr

Rajendra Ballv Behera Vs State of Orissa