NARESH KUMAR GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner-contractor entered into a works contract with the respondents for construction of buildings to provide accommodation for married GCOs/HAVs / OR at Baramulla vide works contract No. CESZ-14 / 91-92, besides, accommodation for MED Regt. at Pattan vide Contract SESZ / 07 / 93-94. He claims to have completed these works on 06/05/1997 and 06/01/1998 respectively. To substantiate the contention, reliance is placed on the certificate issued by respondent No. 3 vide No. 8101 / CESZ - 14 / 91-92 / 992 / EB dated 06/05/1997 which is said to have been issued in terms of condition 49 of the General conditions of the contract enshrined in IAFW-2249. Relying on the certificate it is contended that the respondents are bound to make the payment to the petitioner within the period specified under condition 66.

(2.) The respondents have vehemently opposed the maintainability of the writ petition on the ground that no fundamental or statutory right of the petitioner has been infringed. They have contended further that the petitioner has failed to complete the work within the stipulated period and has neither rectified the defects nor has he returned the unused store items and breach of contractual obligations is ascribed to the petitioner in so many words. In this background it is canvassed that the petitioner should have sought the settlement of the dispute through arbitration under clause 70 of the IAFW-2249 which is extracted and reproduced for facility of reference :

(3.) The language of clause makes it very clear that in the event of dispute arising out of contract, it is referable to the arbitrator. Whether a dispute has arisen out of the contract, the pleadings of the parties assume significance and a cursory glance on the same unfolds that the petitioner claims relief on the basis of recitals of the agreement whereas the respondents deny his entitlement on the strength of the very terms and conditions of the agreement pressed into a service by the petitioner. It is appropriate to notice that the case on hand does not represent a situation where petitioner relies on one set of conditions and the respondents on a different one but fact of the matter is that both the parties rely upon a set of conditions contained in IAFW - 2249. In essence, the rights and obligations of the parties are sought to be worked out in the light of the terms of the agreement, thus the controversy centres around the interpretation of the terms and conditions of the contract which are binding on the parties and as a matter of fact by medium of their pleadings they have reiterated such binding. In this backdrop the petitioner is not entitled to invoke the jurisdiction of this court under article 226 of the Constitution, for, such course will tantamount to saying good bye to the terms of the agreement which cannot be permitted in view of the candid admission of the parties, evidencing the fact that their relationship is governed by the agreement.