w w w . L a w y e r S e r v i c e s . i n



Bridge And Roof Infrastructures v/s Union Of India


Company & Directors' Information:- BRIDGE & ROOF CO (INDIA) LTD [Active] CIN = U27310WB1920GOI003601

Company & Directors' Information:- C K INFRASTRUCTURES LIMITED [Active] CIN = U70200DL1997PLC089706

Company & Directors' Information:- D B INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U04520MP2006PTC018493

Company & Directors' Information:- R S INFRASTRUCTURES LIMITED [Active] CIN = U45201PB1997PLC020316

Company & Directors' Information:- K R INFRASTRUCTURES LIMITED [Active] CIN = U73100TG1992PLC013995

Company & Directors' Information:- I M B INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102DL2009PTC195079

Company & Directors' Information:- Y K M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45202CH2006PTC029960

Company & Directors' Information:- R 3 INFRASTRUCTURES LIMITED [Active] CIN = U45400DL2014PLC268953

Company & Directors' Information:- P G M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U01119AP2007PTC054326

Company & Directors' Information:- N H INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45209CH2010PTC032243

Company & Directors' Information:- Y D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102UP2009PTC037603

Company & Directors' Information:- C 4 INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201MH2013PTC242843

Company & Directors' Information:- B S V R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45209TG2009PTC064901

Company & Directors' Information:- V AND K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TG2001PTC036581

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- K-BRIDGE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200GJ2001PTC040174

Company & Directors' Information:- J L INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TN2008PTC066965

Company & Directors' Information:- T & C INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC060995

Company & Directors' Information:- U R C INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058894

Company & Directors' Information:- R V A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102UP2013PTC056289

Company & Directors' Information:- S R G INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74110DL2005PTC134967

Company & Directors' Information:- S R G INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70101DL2005PTC134967

Company & Directors' Information:- N. C. R. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45400UP2008PTC034623

Company & Directors' Information:- P T INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U51909DL2007PTC159635

Company & Directors' Information:- S. L. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45203PB2007PTC031300

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- V C H INFRASTRUCTURES PRIVATE LIMITED [Under Process of Striking Off] CIN = U45203KL2011PTC028762

Company & Directors' Information:- P A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45208TN2009PTC071929

Company & Directors' Information:- A E K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45309TN2009PTC071702

Company & Directors' Information:- K G N INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74200DL2007PTC167982

Company & Directors' Information:- M A M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70109KA2012PTC062160

Company & Directors' Information:- P N INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45201OR2010PTC012647

Company & Directors' Information:- R S INFRASTRUCTURES INDIA PRIVATE LIMITED [Strike Off] CIN = U45206TN2013PTC091533

Company & Directors' Information:- J S K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200MH2005PTC156097

Company & Directors' Information:- S A INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400WB2013PTC192691

Company & Directors' Information:- L & W INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200DL2008PTC182372

Company & Directors' Information:- K R R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC061194

Company & Directors' Information:- INFRASTRUCTURES PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200JH2007PTC012792

Company & Directors' Information:- S AND A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45206UR2012PTC000345

Company & Directors' Information:- J & K INFRASTRUCTURES LIMITED [Active] CIN = U40101JK2009PLC003034

Company & Directors' Information:- V. J. S. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035636

Company & Directors' Information:- K R M INFRASTRUCTURES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC073850

Company & Directors' Information:- M D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201CH2001PTC024224

Company & Directors' Information:- V K INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400UP2008PTC034415

Company & Directors' Information:- K Y INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201DL2004PTC127815

Company & Directors' Information:- A K C INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200KL2010PTC025716

Company & Directors' Information:- D N D INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45203PN2008PTC133243

Company & Directors' Information:- G V R INFRASTRUCTURES INDIA PRIVATE LIMITED [Strike Off] CIN = U45209AP2008PTC059504

Company & Directors' Information:- K & K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74120KA2006PTC040900

Company & Directors' Information:- A & G INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U31900PB2012PTC036358

Company & Directors' Information:- Y R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201RJ2015PTC047298

Company & Directors' Information:- U D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45400MH2010PTC203382

Company & Directors' Information:- J W INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74120MH2015PTC268554

Company & Directors' Information:- G AND G INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200MH2004PTC147316

Company & Directors' Information:- G S ROOF PRIVATE LIMITED [Strike Off] CIN = U70100MH2011PTC214821

Company & Directors' Information:- A. N. Y. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45206MH2013PTC243735

Company & Directors' Information:- J V S M S INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200TG2010PTC070371

Company & Directors' Information:- K S V V INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45209TG2010PTC069359

Company & Directors' Information:- A V R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400DL2009PTC186399

Company & Directors' Information:- A P S INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70109DL2013PTC248564

Company & Directors' Information:- R R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70109DL2006PTC150324

Company & Directors' Information:- S D P INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200HR2013PTC048666

Company & Directors' Information:- B P K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45203KA2009PTC049331

Company & Directors' Information:- T M R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400TG2007PTC054647

    Decided On, 26 February 2009

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE R.S. GARGAND & THE HONOURABLE MR. JUSTICE U.C. MAHESHWARI

    For the Appearing Parties: Indira Nair, Sanjay Agrawal, Sharad Punj, Advocates.



Judgment Text

(1.) THIS order shall dispose of W. P. No. 4227/2006 (M/s. Bridge and Roof Infrastructures Vs. Union of India and others) and W. P. 7881/2007 (M/s. Bridge and Roof Infrastructures Vs. Union of India and others).

(2.) SHORN of unnecessary details the question in dispute can be summarized in the nutshell to say that whether the recovery notices issued by the respondent in one of the cases whether in relation to quantified damages or unqualified damages are valid and are in accordance with law or not and whether cancellation of the contract was valid.

(3.) UNDISPUTEDLY the petitioner had entered into certain agreements with the respondents for repair of certain railway bridges. It appears that after sometime the petitioner, as alleged by the respondents abandoned the work and refused to restart the work or take up the work again Taking into consideration the alleged conduct of the petitioner/contractor the respondents cancelled the contract, engaged some debit-able agency and proceeded to get the work finished at the expenses of the petitioner/contractor. After completion of the work the Union of india/railways finding that they had to undergo extra expenses issued demand notice and circulated the same to all other stations of the Railways that an amount of Rs. 16,95,919. 00 be not paid to the petitioner/contractor

(4.) BEING aggrieved by termination of the contract the petitioner has filed W. P. No. 4227/2006 and against issuance of the demand and the restraint order has filed W. P. No. 7881/2007.

(5.) AFTER notices the respondents have appeared before us and have filed their separate returns in each of the matter. It is submitted by the respondents that as the petitioner for the reasons best known to him had abandoned the work, the respondents were absolutely justified in cancelling the agreement/contract. It is also submitted that as the. work was got done through the debitable agency and as the respondents had to undergo additional expenses to the tune of Rs. 16,95,919/-they are entitled to recover that amount from the petitioner. It is submitted by the respondents that the petitioner did not go to the arbitration, therefore, the respondents are entitled to recover the money.

(6.) SHRI Agrawal, learned counsel for the petitioner placing his strong reliance upon a single Bench judgment of this Court in W. P. No. 640/1998 (M/s. Thakurdas Narang and Sons Vs. State of MP. and 3 others) decided on 13. 4. 1999 which was later on followed by another single Bench in the matter of M/s. F. A. Construction, Mumbai Vs. Narmada Valley Development Department and another reported in 2006 (2) MPHT 216 submitted that the respondents are not entitled to recover the money without adjudication of the dispute and seeking an award from the arbitrator. It is submitted that clause 64 of the agreement would clearly provide that any party aggrieved of the dispute has to refer the matter to the arbitrator. It is also submitted by him that the respondents were absolutely unjustified in cancelling the contract and issuing demand notes and the mandates without making any enquiry or without getting the matter adjudicated that who was the defaulter. BRIDGE AND ROOF INFRASTRUCTURES (M/s) Vs. UNION OF INDIA 1

(7.) SMT. Indira Nair, learned Senior Counsel and Shri Rajneesh Gupta, leamee counsel for the respondents, however submitted that in accordance with Clause 1 6 3 of the agreement if the petitioner was aggrieved by cancellation of the contracq or by a demand that he was required to refer the matter under clause 63 to the railways or under Clause 64 (1) (i) to the Arbitrator. It is also submitted by them that the petitioner who was obliged to approach the Arbitrator having not approached the Arbitrator is not entitled to any reliefs.

(8.) FOR proper appreciation of the dispute clause 63 and clause 64 of the alleged agreement are required to be seen. The clauses read as under :

63. Matters finally determined by the Railway. :- All disputes and difference of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract shall be referred by the Contractor to the Railway and the Railway shall within 120 days after receipt of the Contractor's representation make and notify decision on all matters for which provision has been made in clauses 8 (a), 18, 22 (5), 39,43 (2), 45 (a), 55,55-A (5), 57, 57a, 61 (1), 61 (2) and 62 (1) (b) of General Conditions of the contract or in any clause of the special conditions of the contract shall be deemed as 'excepted matters' shall stand specifically excluded from the purview of the arbitration clause and not referred to arbitration.

64 (l) (i) - Demand for Arbitration :-In the event of any dispute or difference between the parties here to as to the construction or operation of this contract, or the respective rights and liabilities of the parties or any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such ease, but except in any of the'excepted matters 'referred to in clause 63 of these conditions, the Contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that then dispute or difference be referred to arbitration. (ii) - The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item-wise. Only such dispute (s) or difference (s) in respect of which the demand has been made, bridge AND ROOF INFRASTRUCTURES (1) UNION OF INDIA together with counterclaims or set or shall be referred to arbitration and other matters shall not be included in the reference. (ii) (a) - The arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the railway. (b) - the claimant shall submit his claim stating that the facts supporting the claims along with all relevant documents and the relief or remedy sought against each claim within a period of 30 days from the date of appointment of the Arbitral Tribunal. (c) - The Railway shall submit its defence statement and counter claim (s), if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter, unless otherwise extension has been granted by Tribunal. (iii).- No new claim shall be added during proceedings by either party. However, a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings subject to acceptance by Tribunal; having due regard to the delay in making it. (iv).- If the Contractor (s) does/do not prefer his/their specific and final claims in writing, within a period of 90 days of receiving the intimation from the Railways that the final bill is ready for payment, he/they will be deemed to have waived his/their claim (s)and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. "

(9.) A perusal of clause 63 of the agreement would make it clear that for resolution of the dispute and differences in connection with the contract during the progress of the work or after its completion or before or after determination of the contract the Contractor shall be obliged to refer the same to the Railway and the Railway shall within 120 days of the receipt of the representation make or notify a decision on all matters. Clause 63 though uses the word 'refers' but in fact it is an enabling provision. Clause 63 would only mean that the contractor is required to make a representation to the higher authorities to pass a final order on the dispute. Clause 64 (1) (i) relates to demand for arbitration. Though it is submitted that Clause 64 (l) (i) has not been observed by the petitioner but from a perusal of the said clause it would clearly appear that in the event of any dispute or the respective right and liability of the parties on any matter in question, dispute or difference on any account etc. or if the Railway fails to make a decision within 120 days then in any such case or except in any of the "excepted matters" referred in clause 63 of the condition, the Contractor after 120 days but within 180 days of presenting his final claim shall demand in writing that the dispute or difference be referred to arbitration. A perusal of clause 63 and clause 64 would make it clear that clause 63 is a departmental action on a representation or application by the contractor in relation to all disputes and differences of any kind whatsoever arising out or in connection of the contract whether during the progress of the work or after its completion etc. Clause 64 (1) provides that in case of the differences between the parties the contractor may approach the Railways for appointment of an Arbitrator, h? can also approach the Railways with a submission that the matter be referred the contract shall be deemed as 'excepted matters' shall stand specifically excluded from the purview of the arbitration clause and not referred to arbitration.

64 (l) (i) - Demand for Arbitration :-In the event of any dispute or difference between the parties here to as to the construction or operation of this contract, or the respective rights and liabilities of the parties or any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such ease, but except in any of the'excepted matters 'referred to in clause 63 of these conditions, the Contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that then dispute or difference be referred to arbitration. (ii) - The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item-wise. Only such dispute (s) or difference (s) in respect of which the demand has been made, bridge AND ROOF INFRASTRUCTURES (1) UNION OF INDIA together with counterclaims or set or shall be referred to arbitration and other matters shall not be included in the reference. (ii) (a) - The arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the railway. (b) - the claimant shall submit his claim stating that the facts supporting the claims along with all relevant documents and the relief or remedy sought against each claim within a period of 30 days from the date of appointment of the Arbitral Tribunal. (c) - The Railway shall submit its defence statement and counter claim (s), if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter, unless otherwise extension has been granted by Tribunal. (iii).- No new claim shall be added during proceedings by either party. However, a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings subject to acceptance by Tribunal; having due regard to the delay in making it. (iv).- If the Contractor (s) does/do not prefer his/their specific and final claims in writing, within a period of 90 days of receiving the intimation from the Railways that the final bill is ready for payment, he/they will be deemed to have waived his/their claim (s)and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. "

(9.) A perusal of clause 63 of the agreement would make it clear that for resolution of the dispute and differences in connection with the contract during the progress of the work or after its completion or before or after determination of the contract the Contractor shall be obliged to refer the same to the Railway and the Railway shall within 120 days of the receipt of the representation make or notify a decision on all matters. Clause 63 though uses the word 'refers' but in fact it is an enabling provision. Clause 63 would only mean that the contractor is required to make a representation to the higher authorities to pass a final order on the dispute. Clause 64 (1) (i) relates to demand for arbitration. Though it is submitted that Clause 64 (l) (i) has not been observed by the petitioner but from a perusal of the said clause it would clearly appear that in the event of any dispute or the respective right and liability of the parties on any matter in question, dispute or difference on any account etc. or if the Railway fails to make a decision within 120 days then in any such case or except in any of the "excepted matters" referred in clause 63 of the condition, the Contractor after 120 days but within 180 days of presenting his final claim shall demand in writing that the dispute or difference be referred to arbitration. A perusal of clause 63 and clause 64 would make it clear that clause 63 is a departmental action on a representation or application by the contractor in relation to all disputes and differences of any kind whatsoever arising out or in connection of the contract whether during the progress of the work or after its completion etc. Clause 64 (1) provides that in case of the differences between the parties the contractor may approach the Railways for appointment of an Arbitrator, h? can also approach the Railways with a submission that the matter be referred to the arbitration because decision on his representation submitted under Clause 63 has not been made within 120 days. I

(10.) IN each of the case if the contractor is aggrieved then he has to make a representation to the Railway authorities or make a representation to them to refer the matter to the arbitration. If contractor is not aggrieved by any action I taken by the Railway authorities then he is not required either to take an action under Clause 63 or make an application to the Railways under Clause 64 for appointment of the Arbitrator.

(11.) IN the present case the petitioner is aggrieved by cancellation of the contract. If that be so then under clause 64 (1) he has to make an application for making a reference to the arbitrator. In W. P. No. 4227/2006, we refuse to interfere because the petitioner can approach the appropriate authority for appointment of an Arbitrator.

(12.) SO far as issuance of demand notice and the mandate issued by the Railway authorities are concerned, undisputedly the matter was not referred by the Railway authorities to the Arbitrator nor any competent and authorized person has ever adjudicated upon the dispute between the parties. It appears that the respondents assumed the role of an Arbitrator in their own matter. After cancelling the contract they started the work through the debatable agency and after holding that the petitioner committed lapses by abandoning the work they started assessing the losses and damages and therefore issued an Order to*all other agencies of Railways not to makethe payment to the tune of Rs. l6,95,919. 00etc. Undisputedlya gain. the respondents before issuing the demand notice or the mandate to the other agency did not issue any show cause notice to the petitioner nor had made any enquiry into the damages or into the cause which led to cancellation of the contract or abandonment of the work. If such enquiry is not made then obviously the respondents would not be entitled to recover the money on their lopsided ft calculations.

(13.) IN the matter of M/s. Thakurdas Parang and Sons Vs. State of M. P and 3 others (W. P. No. 640/1998 decided on 13. 4. 1999) a single Judge (one of us) placing reliance upon the judgment of the Apex Court in the matter of State karnatakavs. Shree Rameshwara Rice Mills, Thirthahalli (AIR 1987 SC 1359 observed as under :

17. From the judgment of the Supreme Court, it would bridge ANDROOFINFRASTRUCTURES (M/s) Vs. UNION OF INDIA clearly appear that interest of justice and equity require that where a party to the contract disputes committing of any breach of conditions, the adjudication should be by an independent person or body and not by the other party to the contract

18. On-face of this judgment, Shri Seth, learned counsel for respondents now submits that in the matter of State of karnataka. Supreme Court was considering a case of recovery. . , of damages, while present is a case of recovery of excess expenses suffered by the State. In his submission, in a case where the state has to recover the damages, it may not be permitted to enter into the field of making the decision, but in a case where the State has suffered extra expenses because of the breach committed by the contractor/petitioner, the State certainly is entitled to recover the amount which was paid by the State to the debitable agency through which or under whose hands the work was got executed. In the opinion of this Court, the argument is not sustainable. The question for consideration simply is that who committed the breach. Unless it is decided that the petitioner committed the breach, the state would not be entitled to recover the amount spent in excess of the original contract amount. Everything would depend upon a finding as to who committed the breach. Should the task be given to a party to the contract, that is, the State and its officers, or should it be submitted to a third agency, arbiter, Court or Tribunal. If the task is handed over to the State Government, then it would certainly run contrary to the age old saying audi- alterm- partem. The principles of natural justice clearly provide that neither one should be condemned unheard nor a party should be a judge or arbiter in his own case or cause. If the State is given the authority to decide that who committed the breach, then possibility of a prejudice and bias cannot be ruled out. However, fair the authority is, it would always offend the principles "that justice should riot only be done but it should appear to have been done". If the state decides that who committed the breach, men this would again run contrary to the judgment of the Supreme Court in the matter of State of Karnataka. While appreciating clause 12 of the agreement of the said matter, the Supreme Court qbserved that on a plain reading of the words it would be clear that right of the second party to assess damages would arise only if the breach of conditions was admitted or if no issue was made of it. The supreme Court further observed that even if the clause 12 afforded scope for being construed as empowering the officer of the State bridge ANDROOF INFRASTRUCTURES (M/s) Vs. UNION OF INDIA to decide upon the question of breach as well as assess the quantum of damages that adjudication by the officer regarding the breach of the contract cannot be sustained under law because a party to the agreement cannot be an arbiter in his own cause and case. In the present case, the State is simply relying upon the actions of the Executive Engineer. According to them, the rescission of the contract was in accordance with law and as the state had to pay extra expenses, the State was entitled to re cover the money. Unfortunately the actions of the State do not take into consideration as to who has to decide that who committed the breach of the terms. In the present case, the State certainly can recover the money provided a third party decides that because of the breach committed by the petitioner the State had to suffer extra expenses. Though the agreement does not give any power, right or authority to the State or its agency to decide the question of breach, but even assuming the State had such a power, then too, it could not decide the question as to who commit

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ted the breach nor would it be entitled to assess the quantum of extra expenses because in such a situation, State would be acting as an arbiter or a Judge in its own cause. 19. Undisputedly, the question of the breach of the contract has not been decided by any competent authority, arbitrator, Court or Tribunal and un less such a decision is given by such an authority, the State would not be entitled to recover the money, I must hasten to say that if a private party is required to approach the Court or tribunal for establishment of his claim, then the State, though almighty, must seek a proper decision on the dispute and should not decide its own case, take the authority in its own hands and proceed to recover the money through its own agency. " (14.) THE said observations made by the learned single Judge in the case of m/s. Thakurdas Narang and Sons Vs. State of M. P. and 3 others (supra)were followed by another single Judge in the matter of M/s. F. A. Construction mumbai Vs. Narmada Valley Development Department and another (supra)and it was finally observed that so far as the question of recovery of damages were concerned the same could not be put into implementation without proper adjudication. (15.) AS in this matter undisputedly there had been no adjudication in relation to loses suffered by the Railways the respondents cannot be allowed to recover the money as per their own calculations. (16.) IF advised the respondents may also approach the competent arbitrator or nilu (SMT.) Vs. MP. STATE ELECTRICITY BOARD make a representation to the competent authority for appointment of the arbitrator. So long as this dispute is not decided by the Arbitrator, the respondents would not be entitled to recover the money from the petitioner.- (17.) IN view of the above the directions issued in letter dated 6. 6. 2007 to recover the amount of Rs. 16,95,919. 00 and further directions to the concerned General manager (Works) of different stations and department of the Railways asking to withhold the amount of Rs. 16,95,919. 00 are quashed. (18.) BOTH the petitions are accordingly disposed of. There shall be no order as to costs. Petition disposed of.
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