The existence of an arbitration mechanism as an alternative efficacious remedy under the EPC Agreement influenced the court's decision.

JUDGMENT :

ARUP KUMAR GOSWAMI, J.

1. Heard Mr. Kshitij Sharma, learned counsel for the petitioner. Also heard Mr. Gagan Tiwari, learned Deputy Government Advocate appearing for respondent Nos. 1 to 3, Mr. Ramakant Mishra, learned Assistant Solicitor General for Union of India appearing for respondent No. 4 and Mr. Anand Shukla, learned counsel for respondent No. 5.

2. By this writ petition, the petitioner has called in question the termination letter dated 09.11.2021, by which the contract given to the petitioner for improvement of crust and strengthening work of Raipur-Durg 4-Lane including improvement of junction in Km. 281.00 to Km. 307.600 of N.H. 53 (Old N.H. 6) in Chhattisgarh State has been terminated.

3. By filing a return, respondent Nos. 1 to 3, amongst others, stated that Article 26 of the Engineering Procurement and Construction (EPC Agreement) provides for Dispute Resolution System. At paragraph 13, amongst others, it is stated as follows:

“That, as per clause 26.3 appropriate remedy efficacious remedy for the petitioner company in the circumstances of the instant case would be to get the matter referred to the Arbitral Tribunal for decision from the date of impugned occurrence as per the other detailed conditions of arbitration clause 26.3 of the EPC agreement. The dispute of with regard to delay in execution of work as per EPC agreement is a disputed question of fact which would require to be proved by way of leading evidence by the petitioner company that it is attributed to the answering respondent not to the petitioner hence the appropriate remedy would be getting the dispute referred to arbitrator as per clause 26.3 of the EPC agreement.

It is pertinent that as the petitioner company has miserably failed to comply with the aforesaid provisions, despite repeated requests and communications sent, therefore, the answering respondents had no other option left but to invoke the termination clause for termination of contract/agreement executed in favour of the petitioner company and accordingly the agreement/contract awarded to the petitioner company has been terminated vide impugned order dated 09.11.2021 (Annexure P/1) which is just, proper and legal and does not suffer from any illegality or infirmity.”

4. Mr. Sharma does not dispute the fact that there is an arbitration mechanism in terms of the EPC Agreement.

5. In view of the alternative efficacious remedy, we are not inclined to entertain this writ petition any further and accordingly, this petition is disposed of reserving liberty to the petitioner to seek remedy in accordance with law.