T.K. ENGINEERING Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed the instant writ petition challenging the termination letter dated 17.01.2019 issued by the General Manager (Airports), RITES Ltd. whereby the Contract Agreement No. RITES/AP/ICP/DAWKI/2016/10150 dated 30.09.2016 for the work of

(2.) The brief facts of the case are that the petitioner was awarded the work of "Development of Integrated Check Post at Dawki (Meghalaya) along Indo-Bangladesh Border" vide Contract Agreement No. RITES/AP/ICP/DAWKI/2016/10150 dated 30.09.2016. The duration of the project was 2 years and the site was to be handed over to the petitioner contractor by 18.11.2016. It is the case of the petitioner that the causes of delay are attributable to respondents, inasmuch as, part of the project site where the main check gate and major part of the construction is to be carried out, has not been handed over to the petitioner as yet. The second contention of the petitioner is that there were changes in revised architectural drawings and designs of the integrated check post lay out plan and also that there was delayed clearances from Forest Department and Mining Departments apart from the obstruction to construction due to some land disputes of the local people. In spite of the hurdles, the petitioner has admittedly completed more than 52-53% of the work as stipulated in the contract. It is the further case of the petitioner that the respondents are trying to allot the remaining work to other contractors in a non- transparent manner, at the risk and cost of the petitioner and even the bank guarantee of Rs. 3,31,34,743/- (Rupees Three Crore Thirty One Lakh Thirty Four Thousand Seven Hundred Forty Three) only, has already been encashed and the petitioner served with the cancellation order dated 17.01.2019.

(3.) The respondents No. 3 to 6 have filed an affidavit dated 11.02.2019 questioning the maintainability of the writ petition. Maintainability of the writ petition is challenged on the following counts: (a) That there is an arbitration clause in the agreement providing for settlement of all aspects of disputes arising out of the contract agreement and, therefore, there being an alternative remedy by way of arbitration, the present writ petition is not maintainable; (b) That as per Clause 46.17 of the contract agreement the Courts in the City as specified in Schedule „F? alone shall have the jurisdiction to entertain any application or other proceedings in respect of anything arising under this agreement and any award or awards made by the arbitrator where Arbitration and Conciliation Act , 1996 is applicable shall be filed in the concerned court in the aforesaid city only. Schedule „F? mentions New Delhi city. As such, on account of the jurisdiction ouster clause, only the Courts in New Delhi has the jurisdiction and this Court lacks territorial jurisdiction; and (c) That the present writ petition involves complex disputed questions of fact and the same cannot be decided in a writ proceeding.