AMIT-MASS (J.V.) Vs. NORTH WESTERN RAILWAY

JUDGEMENT

(1.) THIS petition has been filed challenging the letter/order dt. 30.10.2012 whereby the petitioner -Company was directed by the Dy. Chief Engineer Construction, N.W. Railway, Udaipur that action be taken to restart the construction work and time bond programme for adequate progress of work in the contract awarded to the petitioner -Company be submitted. It was required that compliance with the directions aforesaid be made within 48 hours in terms of clause 62 of General Conditions of Contract and in the event of non -compliance with the directions on the expiry of period of 48 hours, the contract awarded to the petitioner -Company would stand rescinded and the work under the contract be carried out independently without the participation of the petitioner -Company. The petitioner -Company was informed that following the rescinding of the contract, the full security deposit made by the petitioner -Company with the N.W. Railway would be forfeited and the performance guarantee would also be encashed. On the matter coming up before this Court on 09.11.2012, while issuing notices, it was directed that till 21.11.2012, the respondents not invoke the bank guarantee. The said interim order dt. 09.11.2012 has continued till date.

(2.) ON notice being served on the respondent -N.W. Railway, reply to the petition has been filed. It has been stated that the writ petition ought to be dismissed at the threshold in view of the fact that in the contract agreement dt. 21.10.2011 between the petitioner -Company and the respondent -N.W. Railway to which this petition relates, a provision had been made under clause 64 (GCC) as referred to at clause 85 in the agreement for arbitration of all disputes and differences between the parties in respect of the contract. It is submitted that in terms of Section 5 of the Arbitration and Conciliation Act, 1996 (hereinafter 'the Act of 1996'), interference of the Court in disputes covered under the arbitration agreement under a valid contract is to be eschewed except otherwise statutorily provided. This would entail this Court desisting from exercising its writ jurisdiction in such makers. It is submitted that aside of the writ petition not being maintainable, this Court should also take note of the fact that the petitioner -Company has itself moved an application under Sec. 9 of the Act of 1996 read with Order 39 R.1 & 2 CPC before the District Judge, Jaipur City inter alia praying for the same relief as prayed before this Court, i.e. that the performance guarantee submitted by the petitioner -Company not be encashed. It has been submitted that the petitioner -Company having availed its statutory remedy, parallel proceeding for the same relief by way of this writ petition ought not to be allowed and the writ petition should be dismissed also on this count.

(3.) THE writ petition stands dismissed accordingly.