WARIS BUILDCON Vs. UNION OF INDIA

JUDGEMENT

(1.) No counter-affidavit has been filed on behalf of the respondent nos. 1 and 2.

(2.) This is an application under sec. 11(6) of the Arbitration and Conciliation Act, 1996 (in short, AC Act) by Waris Buildcon Private Limited for appointment of an Arbitrator in terms of Clause 26.3 of the Engineering Procurement and Construction Agreement dtd. 16/12/2021 (in short, EPC Agreement).

(3.) The aforesaid agreement was executed for the work under Job No.-NH-114A-JHR-2020-21/291 for widening and strengthening of 2-Lane with Paved Shoulder and Geometric improvement of NH-114A for a distance between 65.500 Kilometer to 87.530 Kilometer between Tower Chowk, Dumka to Basukinath on EPC mode within the State of Jharkhand. This is the case pleaded by the applicant that it submitted 50% of performance security amounting to Rs.1,23,39,675.00 on 2/12/2021 and after execution of the agreement it has further deposited the balance performance security amount. The applicant has made grievance in respect of obligations of the Ministry of Road Transport and Highways (in short, the employer) under EPC Agreement which has decided that 28/1/2022 shall be the appointed date. The applicant has also raised a grievance that 90% of the Right of Way was not handed over to it by the employer before the appointed date. The applicant has laid a foundation for raising a grievance against termination of the aforesaid EPC Agreement and forfeiture of the performance security on 30/3/2022 referring to several instances of failure on the part of the employer. The applicant also moved O.M.P.(I) (COMM.) 109/2022 before the High Court of Delhi invoking the provisions under sec. 9 of the AC Act. However, on 8/4/2022, this application was withdrawn presumably on an understanding that the Court at Delhi has no territorial jurisdiction. Thereafter the applicant moved the Commercial Court at Ranchi under sec. 9 of the AC Act wherein an ad-interim order dtd. 13/4/2022 has been passed restraining the employer from encashing the bank guarantees furnished by the applicant. The applicant has further pleaded that it has responded through the letters dated 21st and 22/4/2022 to the termination order and has brought to the notice of the employer the instances of irregularities and illegalities committed in course of execution of EPC Agreement. There are references of invoking Clause 26.2 of EPC Agreement at different stages, and finally on 4/6/2022 the invocation of Clause 26.3.