Mahendar Kumar Goyal, J.
1.This intra court appeal has been preferred against the order dated 21.10.2019 whereby, the writ petition preferred by the appellant against the various letters/orders issued by the respondents herein seeking to invoke Clauses 2 and 3 of the agreement providing for levy of liquidated damages and risk and costs, has been dismissed by the learned Single Judge.
2. The facts in brief are that the appellant, a registered AA Class Contractor, was awarded work of Re-vamping and Rehabilitation of Sultanpur Sub-Branch and its Minors kms. 0 to 27.22, Bhonra Disty. System & direct off taking minors of RMC km. 9.04 to 25.22 & km. 43.5 to 57.5 & Jhalipura Disty. System & its Minors RMC CAD Chambal, Kota by the respondents under the agreement no.EE/2/2017-18. The date of start of the work, as stipulated under the agreement, was 13.4.2017 with 12.4.2020, being the date of completion of work. It has been case of the appellants that owing to certain contingencies either attributable to the respondents or beyond its control, it could not commence the work in time or complete its different stages in time. The appellant informed the respondents vide letters dated 11.1.18, 6.2.18, 18.2.18, 28.3.18, 6.4.18, 3.5.18, 24.5.18, 12.6.18, 14.6.18, 27.9.18, 3.1.19, 4.2.19, 16.4.19, 12.6.19 and 18.6.19 about the reasons for delay in execution of the work under the agreement. The appellant alleged that in spite of its repeated communications, the respondents through their notices/letters dated 3.6.19, 2.4.19, 18.2.19, 13.8.19, 16.7.19, 1.7.19 and 27.6.19 have threatened to impose liquidated damages under Clause 2 and Risk and Costs under Clause 3 of the agreement. In these circumstances, the appellant filed the writ petition with the prayers inter-alia that the orders impugned dated 3.6.19, 2.4.19, 18.2.19, 13.8.19, 16.7.19, 1.7.19 and 27.6.19 (Annexures-5 to 11 respectively) be quashed and the respondents may be restrained from imposing any liquidated damages under Clause 2 and /or Risk and Costs under Clause 3 of the agreement. Refund of the amount of Rs.16,12,663/- was also claimed alleging to have wrongfully been deducted under Clauses 2 and 3 of the agreement.
3. The writ petition has been dismissed by the learned Single Judge vide order dated 21.10.2019.
4. The learned counsel appearing for the appellant assailing the order dated 21.10.2019 as well as various letters/notices issued by the respondents submitted that action of the respondents in issuing the notices has been illegal and arbitrary. He contended that in absence of admission by the appellant about breach of terms of the agreement by it, the respondents could not invoke either Clause 2 or Clause 3 of the agreement. He further submitted that the law prohibits levy of even liquidated damages by one party to the agreement alleging breach of agreement's condition by another party till the competent court determines the liability of the party alleged to be in default as well as the extent of the damages. He, therefore, prayed that the appeal be allowed and the impugned order be set aside. He relies upon the judgements of the Supreme Court in Gangotri Enterprises Ltd. vs. Union of India & Ors, 2016 11 SCC 720, State of Karnataka vs. Shree Rameshwara Rice Mills, Thirthahalli, 1987 2 SCC 160 and a judgement of coordinate bench of this Court in M/s. Essar Projects Ltd. vs. State of Rajasthan & Ors., D.B. Special Special (Writ) No.143/2006 decided on 19.7.2017 to buttress his submissions.
5. Heard learned counsel and perused the record.
6. A perusal of the letters/notices dated 3.6.19, 2.4.19, 18.2.19, 13.8.19, 16.7.19, 1.7.19 and 27.6.19 (Annexures-5 to 11 respectively) reveals that vide these communications, attention of the appellant-firm has been drawn to the fact that in spite of repeated requests, the work under the agreement was not being done with the requisite pace and the firm has been instructed to proceed with the work as per the terms of the agreement failing which, it was stipulated that the respondents would be at liberty to invoke Clauses 2 and 3 of the agreement. We find no illegality in these communications wherein, the appellant has been required to execute the work in accordance with the terms of the agreement. Such letters/notices cannot be reckoned even, in our humble opinion, as show cause notices. There is nothing on record to show that the respondents have proceeded against the appellant either under Clause 2 or under Clause 3 of the agreement. In these circumstances, the writ petition was premature and no cause of action can be said to have arisen to the appellant against the letters/notices impugned herein. So far as the alleged deduction of the sum of Rs.16,12,663/- under Clauses 2 and 3 of the agreement is concerned, neither there a whisper of averment in the entire body of the writ petition or in th
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e memo of appeal as to under what circumstances, or by which order the said deduction has been made nor, any such order deducting the aforesaid amount has been placed on record by the appellant; in absence whereof, this Court is not in a position to adjudge its legality and validity. 7. We have gone through the order passed by the learned Single Judge and find no illegality or perversity to warrant interference of this Court under its intra court jurisdiction. 8. The special appeal, being devoid of merit, is dismissed.