Adherence to the dispute resolution mechanism provided in the contract before seeking judicial intervention.

JUDGMENT

1. The Petitioner has filed the present writ petition being aggrieved by the order dated 25.09.2020 by which the contract in question has been cancelled.

2. The facts of the case reveal that the Notice Inviting Tender (NIT) inviting bids for development of storage of wheat at Agra under Design, Build, Finance, Own and Operate (DBFOO) basis was issued in the year 2017. The Petitioner being a successful bidder was issued a Letter of Acceptance on 19.06.2018.

3. The Petitioner's contention is that on account of COVID-19 Pandemic, the Petitioner was not able to carry out the work. There are also other grounds raised by the Petitioner for failure to carry out the work. As the Petitioner could not complete the work as per the terms of the contract, the Respondent organisation has terminated the contract.

4. Learned Counsel for the Respondent, at the outset, has drawn the attention of this Court towards Clause 25 of the Concession Agreement dated 03.01.2020 which is a dispute resolution mechanism and the same reads as under:

"ARTICLE 25

25. DISPUTE RESOLUTION/GOVERNING LAW AND JURISDICTION

25.1. Dispute Resolution Governing Law and Jurisdiction

1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the mediation procedure set forth in Clause 25.2.

25.1.2. The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.

25.2. Mediation

25.2.1. In the event of any Dispute between the Parties, either Party may call upon the Independent Engineer & Auditor (IE&A) to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Independent Engineer or without the intervention of the Independent Engineer, either Party may require such Dispute to be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the Concessionaire for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 (seven) day period or the Dispute is not amicably settled within 15 (fifteen) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 25.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 25.3.

25.3. Arbitration

25.3.1 Any Dispute which is not resolved amicably by mediation, as provided in Clause 25.2, shall be referred to arbitration by a Board of Arbitrators appointed in accordance with Clause 25.3.2. The arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the "Rules"), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration and Conciliation Act,1996 (No 26 of 1996). The venue of such arbitration shall be Delhi, and the language of arbitration proceedings shall be English.

25.3.2. There shall be a Board of three arbitrators, of whom each Party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules.

25.3.3. The arbitrators sha