GVR INFRA PROJECTS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is before this Court claiming to be aggrieved by the letter dated 04.01.2017 (Annexure-A) issued by the respondent No. 3 terminating the agreement entered into between the parties. The petitioner is seeking that enquiry be initiated into the gross acts of omission and commission on the part of respondents No. 1 to 3 in playing fraud upon the petitioner.

(2.) The petitioner having participated in the tender process for the work of strengthening from KM 216.00 (Gulagalale) to KM 237.00 (Maranahalli) and providing rigid pavement from KM 250.620 (Kempuhole) to KM 263.00 (Addahole) (Shiradi Ghat) of NH-48, Bengaluru-Mangaluru Section, being successful had entered into an agreement dated 06.11.2015 with the respondents No. 1 to 3 called as Engineering, Procurement and Construction' ('EPC' for short). The project cost was fixed at Rs. 90,27,83,520.00. The petitioner in that regard has referred to the different Articles contained in the agreement including the term to appoint a consulting firm and the manner of commencement of the work as per the appointed date. The petitioner contends that as per the requirement they had submitted the Performance Bank Guarantee, but the respondents had failed in their obligation to provide 90% right of way' of the project to carry out the work. According to the petitioner, the work could have been commenced only after the right of way was provided so as to enable the petitioner to undertake the work. The petitioner contends that the work of Bituminous road (strengthening) for 21 kms and rigid pavement/concrete of 125 kms had been carried out and 50 Nos. of structures were also constructed. The traffic continued to play on the project Highway wherein the petitioner was to undertake the work. The respondent No. 3 was required to close the project highway for vehicular traffic and handover the same to the petitioner in terms of Art. 8.1 and Schedule-A to the EPC agreement. The concrete road/rigid pavement could have been carried out only if the road was completely blocked as the work also involved the construction of Culverts, Earthwork, Dry lean Concrete, Pavement quality concrete.

(3.) The petitioner further reiterates about the right of way not being provided and that the respondent No. 3 had verbally informed the petitioner to not carry out the work in the stretch from KM 216.000 to KM 237.000 as there is likely to be variation/ change in the scope of work which was recorded in the meeting dated 04.12.2015. It is further contended that due to the heavy rainfall in the region the work cannot also be carried out between May to October. Hence the possibility of carrying on with the work is only between Nov. to April. Despite not handing over the right of way the respondents forced the petitioner to procure construction material and equipment up to the extent of 50% of the entire project. It is contended that due to the action of the respondents they were forced to invoke Art. 26 of the agreement for dispute resolution and sought for appointment of the Conciliator. Despite all this the respondents illegally issued the notice of termination on 02.12.2016 without complying the natural justice. The petitioner in that view filed a petition under Sec. 9 of the Arbitration and Conciliation Act for interim measure and injunction against invoking the bank guarantee was obtained. Petitioner contends that the four laying of KM 189.700 at Hassan to KM 237.000 at Maranahally of NH 48 was awarded to respondent No. 4 without informing the petitioner and it came to their knowledge only subsequently. Due to such action of the respondents, the petitioner has approached this Court.