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



M/s. Hardware Tools & Machinery Project Pvt Ltd. v/s State of Rajasthan


Company & Directors' Information:- B & C MACHINERY LIMITED [Active] CIN = U29253TN2007PLC064452

Company & Directors' Information:- J B M TOOLS LIMITED [Not available for efiling] CIN = U29220DL1990PLC039494

Company & Directors' Information:- A B TOOLS PRIVATE LIMITED [Active] CIN = U34300HP1981PTC004369

Company & Directors' Information:- C & S TOOLS PRIVATE LIMITED [Active] CIN = U28910TN2007PTC064404

Company & Directors' Information:- S K B PROJECT (INDIA) PRIVATE LIMITED [Active] CIN = U45202MP2008PTC020457

Company & Directors' Information:- INDIA MACHINERY CO LTD [Strike Off] CIN = U17232WB1937PLC009094

Company & Directors' Information:- TOOLS INDIA PRIVATE LIMITED [Active] CIN = U74899DL1972PTC006391

Company & Directors' Information:- S AND T MACHINERY PRIVATE LIMITED [Active] CIN = U29299TZ2014PTC020917

Company & Directors' Information:- H. R. TOOLS PRIVATE LIMITED [Active] CIN = U28997PB2020PTC051158

Company & Directors' Information:- R R TOOLS PRIVATE LIMITED [Active] CIN = U29220TN2007PTC064374

Company & Directors' Information:- G D TOOLS PVT LTD [Active] CIN = U28932PB1988PTC008164

Company & Directors' Information:- M G TOOLS PRIVATE LIMITED [Active] CIN = U29199DL2005PTC142466

Company & Directors' Information:- J C MACHINERY PVT LTD [Converted to LLP] CIN = U29259GJ1989PTC012518

Company & Directors' Information:- A J PROJECT PRIVATE LIMITED [Active] CIN = U70101WB2006PTC110040

Company & Directors' Information:- M. P. HARDWARE PRIVATE LIMITED [Active] CIN = U29253WB2003PTC096301

Company & Directors' Information:- M B S PROJECT PRIVATE LIMITED [Strike Off] CIN = U45209GJ2000PTC038147

Company & Directors' Information:- S N TOOLS PVT LTD [Active] CIN = U29224OR1984PTC001448

Company & Directors' Information:- G K HARDWARE PRIVATE LIMITED [Active] CIN = U52390TG2012PTC080105

Company & Directors' Information:- K C PROJECT INDIA PRIVATE LIMITED [Active] CIN = U55101DL1997PTC088558

Company & Directors' Information:- A. H. PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2010PTC141970

Company & Directors' Information:- M. C. TOOLS PRIVATE LIMITED [Active] CIN = U29253DL2010PTC202500

Company & Directors' Information:- C AND W TOOLS PRIVATE LIMITED [Strike Off] CIN = U29295TZ1994PTC005125

Company & Directors' Information:- A E C MACHINERY COMPANY PRIVATE LIMITED [Active] CIN = U21016PB1996PTC018445

Company & Directors' Information:- C R TOOLS PRIVATE LIMITED [Active] CIN = U02922TZ1995PTC005891

Company & Directors' Information:- RAJASTHAN TOOLS PRIVATE LIMITED [Active] CIN = U99999MH1982PTC026945

Company & Directors' Information:- K R TOOLS PRIVATE LIMITED [Active] CIN = U29256DL2004PTC125530

Company & Directors' Information:- V R E TOOLS PRIVATE LIMITED [Active] CIN = U29268KA2010PTC052674

Company & Directors' Information:- R R HARDWARE PRIVATE LIMITED [Active] CIN = U28939HP1996PTC017678

Company & Directors' Information:- H E F PROJECT PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1995PTC069794

Company & Directors' Information:- M. B. TOOLS PRIVATE LIMITED [Active] CIN = U31909MH1981PTC024989

Company & Directors' Information:- B J S PROJECT PRIVATE LIMITED [Active] CIN = U74900WB2015PTC206605

Company & Directors' Information:- I K TOOLS PRIVATE LIMITED [Strike Off] CIN = U29254UR2014PTC001273

Company & Directors' Information:- PROJECT Q AND S PRIVATE LIMITED [Active] CIN = U74999HR2020PTC086437

Company & Directors' Information:- G R S TOOLS PVT LTD [Active] CIN = U27209TN1987PTC015083

Company & Directors' Information:- J R D TOOLS PRIVATE LIMITED [Strike Off] CIN = U29222PB1996PTC018595

Company & Directors' Information:- V K TOOLS PRIVATE LIMITED [Strike Off] CIN = U28939TN1997PTC039072

Company & Directors' Information:- S S R M TOOLS PRIVATE LIMITED [Active] CIN = U21011TG1998PTC028908

Company & Directors' Information:- G B TOOLS LIMITED [Strike Off] CIN = U28112PB2010PLC033967

Company & Directors' Information:- RAJASTHAN HARDWARE PRIVATE LIMITED [Amalgamated] CIN = U28939RJ1999PTC015768

Company & Directors' Information:- D D HARDWARE PRIVATE LIMITED [Active] CIN = U29199DL1998PTC096606

Company & Directors' Information:- A N Y TOOLS PVT LTD [Strike Off] CIN = U29299WB1977PTC030867

Company & Directors' Information:- J D TOOLS PRIVATE LIMITED [Strike Off] CIN = U29294DL1988PTC032010

Company & Directors' Information:- S C R TOOLS PRIVATE LIMITED [Active] CIN = U28931KA1976PTC003003

Company & Directors' Information:- V V TOOLS PRIVATE LIMITED [Active] CIN = U28939PB1995PTC016956

Company & Directors' Information:- THE HARDWARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U27202DL1944PTC000768

Company & Directors' Information:- B I. TOOLS PRIVATE LIMITED [Strike Off] CIN = U99999GJ1986PTC009232

Company & Directors' Information:- S Y MACHINERY PRIVATE LIMITED [Strike Off] CIN = U29253MH2011PTC213775

Company & Directors' Information:- K D PROJECT PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209307

Company & Directors' Information:- S U HARDWARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900UP2014PTC062843

Company & Directors' Information:- S AND M HARDWARE PRIVATE LIMITED [Active] CIN = U26933DL2005PTC144077

Company & Directors' Information:- A J M TOOLS PRIVATE LIMITED [Active] CIN = U29292DL2014PTC265452

Company & Directors' Information:- R AND R TOOLS PRIVATE LIMITED [Active] CIN = U00000DL2001PTC109176

Company & Directors' Information:- C & C HARDWARE PRIVATE LIMITED [Strike Off] CIN = U74999DL2011PTC214626

Company & Directors' Information:- E PROJECT PRIVATE LIMITED [Active] CIN = U72300HR2015PTC057142

Company & Directors' Information:- B. D. MACHINERY PRIVATE LIMITED [Active] CIN = U29100GJ2011PTC064902

Company & Directors' Information:- M J HARDWARE INDIA PRIVATE LIMITED [Active] CIN = U36100PB2021PTC053889

Company & Directors' Information:- G TOOLS PRIVATE LIMITED [Strike Off] CIN = U29246TZ1990PTC002595

Company & Directors' Information:- S K TOOLS PVT LTD [Strike Off] CIN = U00339GA1982PTC000488

    Special Appeal Writ No. 1739 of 2019 & Civil Writ Petition No. 16443 of 2019

    Decided On, 02 March 2020

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA & THE HONOURABLE MR. JUSTICE MAHENDAR KUMAR GOYAL

    For the Appearing Parties: S.S. Hora, Advocate.



Judgment Text


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.
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