AMBARWADIKAR AND COMPANY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present appeal has been filed by original plaintiff to challenge common order below Exhs.5, 6 and 7 dtd. 1/11/2023 by Commercial Court/District Judge-2, Aurangabad in Commercial Suit No.1/2023, thereby rejecting all the applications. (Hereinafter parties are referred as they were before the trial Court, for the sake of convenience.)

(2.) The original plaintiff is a registered Partnership Firm engaged in business of infrastructure. The plaintiff has executed various Government projects. Defendant No.2 had floated a tender in 2010 for the work i.e. construction of Earthwork Lining and Structures of Canal No.1 and Distribution System of Brahmagavan Lift Irrigation Scheme Part-II, Tq. Paithan, Dist. Aurangabad for estimated costs of Rs.4,494.86 lakhs. Plaintiff participated in the tender process and its bid was accepted. The plaintiff had deposited an amount of Rs.30,00,000.00 and also given bank guarantee of Rs.82,40,000.00 of Janata Sahakari Bank Limited in pursuant to the tender contract. It is the contention of the plaintiff that it was the duty of the defendants to see that all the land is made available to the plaintiff for carrying out the work. Upon the measurement of the work done and its verification the defendant authorities released part payment of Rs.18.32 Crores to the plaintiff. Defendant No.2 had issued letter dtd. 31/10/2017 stating that the progress of the work is slow and levied fine/penalty on the plaintiff @ Rs.25,000.00 per day till further orders. There was reference of the said penalty in letter 15/2/2020 issued by defendant No.2 and allegation that the plaintiff had sub-let the project work and informed that a meeting is scheduled on 18/2/2020 and asked it to remain present. The plaintiff had written a letter on 18/6/2019 that about 11 farmers are obstructing the progress of the work on the ground that their lands have not been acquired. According to the plaintiff, the possession of part of the land is not given by defendant No.2 to it and, therefore, the progress could not be made. Time and again, there was communication in respect of removal of the obstruction, however, there was no positive response. Approximately, 90% work is complete. Allegations have been levelled against the Engineers to misguide the higher authorities. Then it is stated that the plaintiff was shocked to see letter dtd. 15/5/2020 issued by defendant No.6 to defendant No.3 that the remaining work has been got completed through another contractor Mr. A.M. Ambhore from Jalna. Amount of Rs.3,25,14,000.00 was demanded for making necessary payments. Plaintiff raised protest by letter dtd. 18/5/2020 stating that no such work has been done by the said contractor and, therefore, no bill is required to be raised. Legal notice was also issued by the plaintiff on 23/5/2020 and reminder on 12/6/2020. Plaintiff had then requested to extend the time for completion up to 31/7/2022. The Superintendent Engineer and Executive Engineer by giving reference to the plaintiff's letter opined that it is appropriate to get the work done from the plaintiff. Action of imposing penalty should be reviewed, was the stand taken by them. By letter dtd. 14/8/2020 the Chief Engineer accepted that proposal in the name of other contractor has not been sanctioned. It is then stated that there were various communications between the plaintiff and the defendants and the defendant (Superintending Engineer) by letter dated 03. 12.2020 asked the plaintiff to submit documents and papers in relation to sub-letting contract. In the meantime, letter for extension was submitted. Plaintiff undertook that he would complete the work within two years. Plaintiff had then issued letter to defendant No.5 on 22/4/2021 and submitted copy of registered deed of cancellation executed between him and Sahas Engineers and Contractors Private Limited. Plaintiff says that the defendants are unnecessarily harassing with mala fide intention. He had also approached this Court in Writ Petition No.7036 of 2021. This Court gave liberty to file suit to the plaintiff by order dtd. 26/7/2022 and disposed of the writ petition. The action of the defendants is illegal and threatening to terminate the contract. Therefore, for various reliefs the suit was filed.

(3.) Plaintiff filed application Exh.5 for temporary injunction for various reliefs which will be dealt with at a later point of time. Thereafter, application Exh.6 was filed for mandatory injunction directing the defendants to make payment of Rs.3,00,75,900.00. An application Exh.7 was filed for stay of communication dtd. 6/1/2023, whereby it was informed that the contract in favour of plaintiff has been cancelled.