BJCL-BRITE (JV) THROUGH ITS LEAD PARTNER BHOLASINGH JAIPRAKASH CONSTRUCTION LIMITED (BJCL) Vs. NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI)

JUDGEMENT

(1.) THE petition under Section 9 of the Arbitration Act, 1996 was got listed yesterday post lunch. Finding no case for the grant of ex parte order and on the submission of the counsel for the petitioner that if the notice for a longer date is issued, the petition would become infructuous, notice of the petition was issued to the respondent for today. The counsel for the petitioner today in the morning informed that some of the banks had, in pursuance to the invocation of the bank guarantee by the respondent No. 1, already issued and delivered cheques thereunder to the respondent. It was also informed that notice of termination of contract had also been received from respondent. The senior counsel for the respondent also confirmed the said fact and stated that he had been unable to go through the voluminous paper book in the short time and requested the matter to be taken up later in the day. It was agreed that the cheques already received by the respondent shall not be encashed till then.

(2.) THE counsel for the parties have been heard. The petitioner in this petition has claimed three reliefs. Firstly, of a direction to the respondent to constitute Dispute Review Board (DRB) under Clause 67.1 of the contract; secondly for restraining the respondent from encashing and/or receiving payments under the bank guarantees and lastly for a direction to the respondent not to terminate the contract.

(3.) AS far as the third relief claimed is concerned, the senior counsel for the respondent has urged that the same has become infructuous, the notice of termination of contract having been already served on the petitioner. The counsel for the petitioner controverts, arguing that the notice is not effective as yet and termination will come into effect on 14th day from the said notice dated 13th January 2009 and as such the said relief can still be granted. A copy of the notice has been handed over in court. Clause 63.1 of the contract enables the respondent to terminate the contract in the eventualities prescribed therein, upon giving 14 days notice to the petitioner and in certain other eventuality, immediately. In my view, the 14 days time is to expel the contractor from the project site. The said time is to enable the contractor i.e., the petitioner, to remove itself and its goods and equipment from the site, whereafter the respondent becomes entitled to expel. It cannot be said that the termination does not come into effect till expiry of 14 days.