1. Since the facts and circumstances of the case are one the same in all these Writ Petitions, they are all taken up together and decided by a common order.
2. While W.P.(MD).Nos.18823 and 18824 of 2014 has been preferred by M/s. Saisudhir Infrastructures Ltd. and W.P.(MD).Nos.20318 to 20320 of 2014 has been preferred by M/s. IVRCL Ltd., Telugana. Both of them are challenging the action of the respondents in going for a fresh tender for completion of the balance work, which according to the respondents, they have failed to do so, within the stipulated period granted to them.
3. According to the M/s. IVRCL Ltd., Telugana, they have been awarded the contract by the respondents and as per the agreement entered by them, they were directed to complete the said contract work within a stipulated period of mentioned in the contract. Before approaching this Court, according to the petitioner firm, they have completed the contract work awarded to them in the following manner:-
They petitioner firm would contend that they could not complete the work for various reasons as stated in paragraph No. 6 of the affidavits filed in support of the Writ Petitions. Eventually, they would contend that the delay in execution of the contract awarded by the respondents was not due to them. However, the authorities without considering the said aspect, cancelled the very contract itself. Apart from that, as per the contract, there is a clause for settlement of dispute, namely, the Dispute Redressal Committee. Therefore, they have preferred necessary appeals in respect of the contracts awarded in W.P.(MD).Nos.20318 to 20320 of 2014 before the said Committee.
4. Similarly, in the other two contracts was awarded to M/s. Saisudhir Infrastructures Ltd., who are the petitioners in W.P.(MD).Nos. 18823 and 18824 of 2014. The said contract should have been completed by the petitioner firm within a period of 18 months including the operation and maintenance for a period of six months. But, according to the petitioner firm, they have completed the contract work awarded to them in the following manner:-
Here again, they would contend that they could not complete the work for various reasons as stated in paragraph No. 6 of the affidavits filed in support of the Writ Petitions. Eventually, they would contend that the delay in execution of the contract awarded by the respondents was not due to them. However, the authorities without considering the said aspect, terminated the very contract itself on 30.09.2014. As per the contract, here also, they have preferred necessary appeals in respect of both Writ Petitions before the said Committee on 08.10.2014.
5. According to the petitioner firms, pending appeals, the respondents have called for a fresh publication calling for fresh tenders to complete the balance of work done by them. If the tenders are called for and the technical bids are opened, the petitioner firm would be put to lot of prejudice and the third party interest will come into play. Further, their legal rights to complete the remaining works would be lost. The Dispute Redressal Committee is the competent authority to look into the matter to which they have already made necessary applications. Once the said appeals are pending, the subsequent action of the respondents in going for a paper publication is not sustainable in the eye of law. Therefore, they have challenged the impugned orders with a specific prayer in each of their Writ Petitions to dispose of the appeals at the first instance.
6. The second respondent has filed a detailed counter affidavits and vacate stay petitions. The respondents in W.P.(MD).Nos.20318 to 20320 of 2014 would contend that in order to complete the water works and put it for beneficial use of the public called for tender notification and implementation of water supply improvement of Scheme to Virudhunagar, Sivakasi, Sattur and Vembakottai Unions. The said work included laying of water pipe line, construction of overhead tanks, sumps and construction of power house and allied works. The chart would throw light upon the entire facts:-
7. Even thereafter, the petitioner firm have not taken any effective steps to improve and complete the project. Therefore, they have no other go except invoking the Clauses 33 and 41 of the terms of the contract and issued show cause notice to the petitioner firm as to why the agreement in favour of the petitioner firm should not be terminated. Their explanations were considered by the Board and the Board did not accept their explanations and hence decided to terminate the contract as per the Clause of 33 and 41 of the terms of the contract and issue the order of termination of agreement on 24.09.2014, 25.09.2014 and 30.09.2014 respectively. Therefore, the petitioner cannot have any grievance at all since there was inordinate delay in executing the contract awarded to them. If at all the petitioner firm wants to invoke the Clause 67 of the terms of the agreement, they ought to have invoked the same before the termination of the contract, when he was issued the show cause notice itself. Accordingly, the respondents have called for a fresh tender notification on 06.11.2014. The mere pending of his application before the Dispute Redressal Committee will not be an impediment in proceeding with the tender notification. At this point of time, the petitioner firm cannot approach the respondents invoking the Clause 67 of the terms of the agreement, that too, after the termination of the contract. The petitioner who had failed to opt for the remedy under Dispute Redressal Committee at the time of giving show cause notice itself could not go for the same, as he is estopped from doing so. It is also pertinent to point out that the claim of the petitioner firm to refer the matter to the Dispute Redressal Committee by his letter dated 03.11.2014 was already rejected by the Board dated 04.12.2014 and hence, the subject matter itself becomes infructuous. Therefore, these Writ Petitions are not at all maintainable.
8. Similarly, W.P.(MD).Nos.18823 and 18824 of 2014 they would contend that the project in these Writ Petitions is for Kovilpatti and Cumbum Municipality respectively. The said work included laying of water pipe line, construction of overhead tanks, sumps and construction of power house and allied works.
Here also, they would reiterate the same reason as stated in paragraph No. 7. Hence, they prayed for the dismissal of the Writ Petitions.
9. The main argument of the learned Senior Counsel for the petitioner firms is that when the appeals are pending before the Dispute Redressal Committee, they have no locus standi to call for a fresh tender. He would further contend that even if there is a delay, as per the agreement, the petitioner firm could be charged with penalty. When such clause is available, there is no question of cancelling the very contract itself. Above all these things, the delay was not due to the petitioner firm. It was because of the various reasons enumerated in the affidavits filed in support of the Writ Petitions as stated supra. Especially, in some of the cases, the handing over the site itself is under dispute. Even cancelling of the contract is without reasons of course, it is subject matter in the appeal. But without awaiting for the order, the present tender notification is issued for completion of the balance work, which will take away the rights of the petitioner firm and the third party right will accrue on it. The sum and substance of the learned Senior Counsel appearing for the petitioner firm is unless the appeals preferred by the petitioner firm is disposed of by the respondents, the present tender notification issued by the respondents is not maintainable.
10. Per contra, the learned Standing Counsel for the respondents would only contend that inspite of extension granted to the petitioner firm to complete the contract work, as the project is life source of the people, the petitioner firm did not bother about to complete the contract work. The delay in implementing the contract work will adversely affect the people at large. Since even after extension granted to the petitioner firms, there was no substantial work done by them and therefore, the contract itself was terminated, as per the agreement and a fresh tender is called for, to enable the respondents to complete the contract work within a stipulated period of time and put into for the beneficial of the public at large. Eventually, he prayed this Court for the dismissal of the Writ Petitions.
11. Heard both sides. By consent, all these Writ Petitions are taken up together.
12. The core issue involved in these Writ Petitions according to the petitioner firm is that first of all, the respondents should dispose of the appeal preferred by the petitioner firm and thereafter, they should call for fresh tender. That is what, prayed in all these Writ Petitions. In the counter, it is specifically stated that their appeal request was already rejected by the respondents vide their letter dated 04.12.2014 before filing of the Writ Petitions in W.P.(MD).Nos.20318 to 20320 of 2014. Of course, the Writ Petitions in W.P.(MD).Nos.18823 and 18824 are preferred earlier on 19.11.2014. If the petitioner firms have got any grievance, they could only challenge the rejection order dated 04.12.2014 in the manner known to law. Even, if the petitioner firm wants Clause 67 of the agreement can also be challenged in the manner known to law. Therefore, the prayer in all these Writ Petitions have already been infructuous. In this connection, it is relevant to extract Clause 67 of the said contract for proper appraisal of this case:-
"67. Settlement of disputes
67.a. Dispute Redressal Committee
In order to ensure a dispute Redressal mechanism, a Committee headed by the Managing Director/Joint Managing Director and consisting of Engineering Director, TWAD Board and Engineering Director, CMWSS Board as Member, will comprise the "Dispute Redressal Committee" for each package in order to resolve any disputes between the Employer/Engineer incharge concerned and the contractor.
67.b. Jurisdiction of Court
In the event of non-settlement of any dispute by the Dispute Redressal Committee arising between the parties hereto in respect of any matter comprised in the contract, the same shall be settled by a competent court having jurisdiction over the place where the contract is awarded and agreement is concluded and by no other Court."
13. The second limp of the argument of the learned Senior Counsel is that when the appeals are pending, whether the respondents could call for a fresh tender. As per Clause 33(d) and 41 of the agreement, it reads as follows:-
"33. Default by contractor
If the contractor shall become bankrupt or have a receiving order made against him or present his petition in bankruptcy or shall make an arrangement with or assignment in favour of his creditors or shall agree to carry out the contract under a committee of inspection of his creditors, or being a corporation shall go into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction), of if the contractor shall assign the contract, without the consent in writing of the employer first obtained, or shall have an execution levied on his goods, of if the engineer in charge shall clarify in writing to the employer that in his opinion, the contractor.
"d. Despite previous warnings in writing by the Engineer in charge, not executing the works and achieving the progress as stipulated in the programmed scheduled drawn for the contract is persistently or flagrantly neglecting to carry out the obligations under this contractor. <
br /> ......... 41.Termination The Employer may terminate the Contract for any reason that is regarded as breach of the Contract. If the contract is terminated, the contractor shall stop work immediately, make the site safe and secure and leave the site as soon as reasonably possible....................... " 14. Therefore, as per the agreement, a right has been given to the respondents to terminate the contract. Above all these things, in a matter of contract, the Supreme Court has held that the role of the Court is limited in contractual obligations. That too, in this case, show cause notices were given and replies were considered and rejected by the respondents. It is pertinent to point out in some of the cases extensions were also given. Inspite of it, the petitioner firm could not execute the contract awarded to them. Therefore, the calling of a fresh tender is well within the domain of the respondents, which cannot be questioned by the petitioner firm at this length of time. Needless to state that it is open to the petitioner firms to approach the appropriate Civil forum to work out their remedy in the manner known to law, if the petitioner firms, so advised. 15. In the light of the discussions and observations, these Writ Petitions stand dismissed. However, there shall be no order as to costs.