Point of Law: Termination of contract - Force majure - The termination was automatic by efflux of time within the purview of the Indian Contract Act, 1872. Thus, the futile prayers for extension, even if produced at the time of passing of the order under review, could not have changed the fate of the writ petition.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. Since the arguments of the applicants in the review petition and respondent no. 1 were recorded at length in the order dated April 16, 2021, those are not being narrated again in order to avoid unnecessary repetition. However, such arguments are considered and referred to in the following order.

2. The review applicants primarily rely on certain documents which, although in the custody of the applicants when the order under review was passed, were not with learned counsel for the applicants at that point of time, due to which those could not be placed before Court on the said date.

3. The first such document is a print-out of Clause 70.0 which is the Force Majeure clause contained in the tender agreement entered into between the applicants and the tender issuing authority. Such clause is reproduced below:

“70.0 FORCE MAJEURE

If, at any time during the currency of the Contract, the performance in whole or in part by either party of any obligation under this Contract shall be prevented or delayed by reason of any war, hostilities, invasion, acts of public or foreign enemies, rebellion, revolution, insurrection, civil commotion, sabotage, large scale arson, floods, earthquake, large scale epidemics, nuclear accidents, any other catastrophic unforeseeable circumstances, quarantine restrictions, any statutory rules, regulations, orders or requisitions issued by a Government department or competent authority or acts of God (hereinafter referred to as “event”) then, provided notice of the happening of such an event is given by either party to the other within 21 days of the occurrence thereof:

(a) Neither party shall by reason of such event be entitled to terminate the Contract or have claim for damages against the other in respect of such nonperformance or delay in performance.”

4. The applicants also rely on a communication dated May 25, 2020 issued from the end of the applicants to the Vice-Chairman, Hooghly River Bridge Commissioners, seeking further extension of the time for completion of the work till March 31, 2021.

5. The other document relied on by the applicants is another communication dated June 15, 2020, reiterating the previous request for extension of time.

6. It is contended that the said documents, if considered by this Court while passing the order under review, could have changed the outcome of the writ petition.

7. By placing reliance on the relevant portions of the order under review, dated December 9, 2020, learned counsel argues that the primary basis of dismissal of the writ petition (WPA No. 10069 of 2020) was that the applicants had not requested for extension of time before expiry of the contract on its last-extended date, that is, May 31, 2020. However, the communications-in-question clearly indicate that such extension was actually sought by the applicants on May 25, 2020, that is, prior to the expiry of the extended period of contract on March 31. 2020. As such, it is contended that the premise of the order under review is rendered irrelevant in view of the said communications.

8. The primary basis of the contentions of respondent no. 1 is that the materials now produced, even if shown to the court at the juncture when the order under review was passed, would not have altered the fate of the writ petition.

9. It has been argued by respondent no. 1 that Clause 70.0 (a) restrains both the parties to the agreement from terminating the contract or claim for damages against the other in respect of such nonperformance or delay in performance.

10. In the present case, as observed in the order under review itself, the termination was automatic, that is, by efflux of time. Hence, there was no positive act of termination from the end of the tender issuing authority.

11. The scope of a review application is limited. In the present case, no error apparent on the face of the record is argued by the applicants, nor was there any reason akin to the grounds provided in Order XLVII of the Code