BJCL SRINATH (JOINT VENTURE) Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner, in the present case, has moved this Court for the following reliefs:-

(2.) Mr. Y.V. Giri, learned senior counsel representing the petitioner has taken this Court through the various factual aspects including that in the meeting held on 16.01.2019 in the Chamber of the Additional Chief Secretary, Water Resources Department, Government of Bihar in course of discussion it has come to his notice that the work in question could not be completed by the contractor because he could not be made available the required documents, approved map and FRL (finished road level). Learned senior counsel submits that the contractor could not complete the work in question for no fault on his part, but when the respondents intended to initiate action against him, he raised a dispute under the arbitration clause present in the standard bidding document, but then the respondents refused to appoint their arbitrator as a result thereof the arbitration proceeding could not commence. It is submitted that the contractor-petitioner is ready to complete the work and had requested the respondents for extension of time but without looking into the same the respondents have proceeded to encash the bank guarantee of Rs.17,89,49,227.00 which was provided to the respondents against the mobilization advance. It is submitted that if the contractor is given some time the entire work will be completed and till then the encashment of the bank guarantee be restrained.

(3.) Learned counsel representing the State has opposed the writ application. It is submitted that the present writ application has been filed in fact for grant of injunction against the encashment of the bank guarantee and as such the writ application is not fit to be entertained in the light of the judgment of the Hon'ble Apex Court in the case of Gujarat Maritime Board Vs. Larsen and Toubro Infrastructure Development Projects Limited and Another reported in (2016) 10 SCC 46. Learned counsel submits that a bare perusal of the reliefs prayed in the writ application would show that the petitioner is looking for declaration from this Court that the delay in completion of the work is not due to the default of the petitioner, this according to him will be a pure question of fact which cannot be decided by this Court under Article 226 of the Constitution of India. The further prayer for a direction to the respondents to grant time extension for completion of work would also amount to issuing a direction to a party to a contract to do certain things which he may like or not like in his own wisdom. It is submitted that another prayer made in the writ application is to appoint an arbitrator for resolution of the dispute regarding delay in completion of the project, again it is submitted that the appointment of arbitrator cannot be ordered under Article 226 of the Constitution of India as in case the petitioner has any grievance and the same is in the nature of an arbitral dispute, in terms of the provisions of the Arbitration and Conciliation Act, he may approach the appropriate court in appropriate jurisdiction for appointment of an arbitrator, but not before this Court.