M/S Simplex Infrastructures Ltd v. National Highways and Infrastructure Development Corporation Ltd and 5 Ors

ORDER Date : 12.07.2024 Heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. M. Sahewalla, learned counsel for the petitioner. Also heard Mrs. R. Borah, learned standing counsel for the respondent nos.1, 2, 3, 4 and 6.

¶2This matter has been listed on mentioning being made by the standing counsel for the respondent nos.1, 2, 3, 4 and 6 on the ground that she had no notice of the matter being listed on 11.07.2024 and therefore, she was not available in the city on 11.07.2024, when the matter was taken up in the vacation Bench. She has also submitted that the petitioner has not annexed the entire contract agreement between the respondent no.1 and the petitioner and therefore, as infrastructure project has been stayed vide order dated

11.07.2024, passed in this writ petition. She has submitted that her endeavour is only to produce a copy of the Vol-1 of the contract agreement which contains 700 pages to show that it was permissible for the respondent authorities to terminate the contract and also to show that this Court has no territorial jurisdiction to entertain this writ petition.

¶3The learned standing counsel for the respondent nos.1, 2, 3, 4 and 6 has submitted that the contract agreement envisaged 4 (four) individual milestones to be achieved by the petitioner and only thereafter, on achieving first milestone of 10% contract work, the petitioner could have applied for extension of time. It is submitted that the relevant pages 420 and 421 being Schedule-J of the contract agreement Vol-1 has not been annexed to the writ petition. It is submitted that as on 29.10.2023, the petitioner was required to Page No.# 4/5 achieve milestone-I of 10%, which was not achieved till date and that as on

28.04.2024, the petitioner was required to achieve milestone-II of 35%, which is also not achieved and accordingly, the respondent authorities had a right to terminate the contract as per Clause-23.1(ii) of the contract agreement dated

21.11.2022 (Vol.1).

¶4It is submitted that for the time being, without entering into the merit of the claim made by the petitioner under Article 27, Clause-27.1 of the contract agreement dated 21.11.2022, the following is prescribed and agreed to between the parties: "27.1 Governing law and jurisdiction This Agreement shall be construed and interpreted in accordance with and governed by the laws of India, and the courts at [Delhi] shall have exclusive jurisdiction over matters arising out of or relating to this Agreement."

¶5The learned senior counsel for the petitioner has submitted that only upon termination of the contract, valuation of the unpaid work is calculated, the respondents could not have issued a tender for balance work on 12.03.2024 when the termination notice was issued on 24.06.2024. Accordingly, it is submitted that in view of the gross illegality committed by the respondent authorities, this Court will have jurisdiction to entertain this writ petition where arbitrariness decision making process is writ large on the face of records and in support of his contention, the learned senior counsel for the petitioner has placed reliance on the case of N.P. Power Management Co. Ltd., Jabalpur Vs. Sky Power Southeast Solar India Pvt. Ltd. & Ors., (2023) 2 SCC 703.

¶6The Court takes note of the fact that Clause-27.1 of the contract agreement under Article-27, which is contained in internal page 286 of Vol-1 of the contract agreement between the respondent no.1 and the petitioner, is not Page No.# 5/5 annexed to this writ petition.

¶7As the parties are not in dispute that the Courts at Delhi shall have exclusive jurisdiction over matters arising out of or relating to the said agreement, the said clause-27.1 is also not under challenge in this writ petition and there is no pleading as to why this Court could still exercise jurisdiction in connection with the contract agreement between the parties. Therefore, the Court is of the considered opinion that the said clause-27.1 would have the effect of ouster of territorial jurisdiction of this Court.

¶8Accordingly, the Court is of the considered opinion that the present writ petition would not be maintainable before this Court in view of clause-27.1 of the contract agreement (Vol-1), which is quoted hereinbefore.

¶9Hence, by granting liberty to the petitioner to approach the appropriate Court having jurisdiction, this writ petition stands closed without adjudication of the matter on merit.

¶10As the writ petition has been closed on account of lack of territorial jurisdiction, the interim order passed on 11.07.2024 is recalled and revoked. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010137962024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3511/2024o M/SoSIMPLEXoINFRASTRUCTURESoLTDo AoCOMPANYoINCORPORATEDoUNDERoTHEoCOMPANIESoACT,o1956oHAVINGo ITSoREGISTEREDoOFFICEoAToSIMPLEXoHOUSE,o27,oSHAKESPEAREoSARANI, KOLKATA-700017oANDoISoREPRESENTEDoBYoITSoDULYoAUTHORIZEDo REPRESENTATIVEoSMT.oDEEPTARAoDUTTA,oAGEDoABOUTo40oYEARS,o DAUGHTERoOFoLATEoNCoDUTTA,oRESIDENToOFoAToNIRUPAMAoNIWAS,o PHAGUNAoRABHAoPATH,oNEARoCENTRALoBANK,oKAHILIPARAoROAD,o ASSAMoSACHIVALAYA,oINoTHEoDISTRICToOFoKAMRUPo(M),oASSAM,oPIN- 781066 VERSUSo NATIONALoHIGHWAYSoANDoINFRASTRUCTUREoDEVELOPMENTo CORPORATIONoLTDoANDo5oORSo REPRESENTEDoBYoITSoMANAGINGoDIRECTOR,oMINISTRYoOFoROADo TRANSPORToANDoHIGHWAYS,oGOVT.oOFoINDIA,o3RDoFLOOR,oP11o BUILIDNG,o4-PARLIAMENToSTREET,oNEWoDELHI-110009. 2:THEoDIRECTORo(TECHNICAL) oNATIONALoHIGHWAYSoANDoINFRASTRUCTUREoDEVELOPMENTo CORPORATIONoLIMITED oMINISTRYoOFoROADoTRANSPORToANDoHIGHWAYS oGOVT.oOFoINDIA o3RDoFLOOR oPTIoBUILDING o4-oPARLIAMENToSTREET oNEWoDELHI-110009. 3:THEoGENERALoMANAGERo(PROJECTS) oPMU-DHUBRI Page No.# 2/5 NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED NEAR DHUBRI- PHULBARI BRIDGE ADABARI PART-2 P.O. CHAGOLCHARA DHUBRI ASSAM- 783324 4:THE EXECUTIVE DIRECTOR (P) GUWAHATI NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED 2ND FLOOR AGNISHANTI BUSINESS PARK OPP. AGP OFFICE GNB ROAD AMBARI GUWAHATI-781001. 5:THE AUTHORITY ENGINEER INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. IN ASSOCIATION WITH INNOVATIVE ENGINEERING ADVISORY LLP OFFICE OF THE TEAM LEADER VILL- NATABARI PART- II P.S. TAMARHAT DIST. DHUBRI ASSAM PIN- 783332. 6:THE DY. GENERAL MANAGER (P) GUWAHATI NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED 2ND FLOOR AGNISHANTI BUSINESS PARK OP. AGP OFFICE GNBROAD AMBARI GUWAHATI- 781001 Advocate for the Petitioner : MR G N SAHEWALLA Advocate for the Respondent : SC, NHIDC Page No.# 3/5 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA