The issuance of a termination notice does not terminate the contract if the affected party invokes arbitration within the stipulated period as per the agreement's clause.

JUDGMENT

Jyoti Singh, J. (Oral)--This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `1996 Act'), filed by the Petitioners praying for an interim order staying the operation of the impugned notice dated 30.04.2022 issued by Respondents No.1 & 2 (hereinafter referred to as the `Respondents') seeking to terminate the Consultancy Agreement with the Petitioners.

2. The disputes between the parties emanate from the Contract Agreement dated 14.06.2017 executed between the Petitioners as `Authority's Engineer' and the Respondents for the Work of Replacement of Superstructure of Existing Four-Lane Mahatma Gandhi Setu over Ganga River in NH-19, Patna, Bihar, from 212.72 KM to 218.295 KM on Engineering, Procurement and Construction Mode.

3. Learned counsel appearing on behalf of the Petitioners challenging the impugned notice and seeking stay of its operation, raises several contentions, inter alia: (a) Respondents have issued stagewise completion certificate to the Petitioners on being satisfied with the services rendered by them; (b) the action is malafide being initiated at the fag end of the contract when the tenure of the contract has entered the phase of maintenance and the 60 months long contract was to be concluded in the next 17 days; (c) conjoint reading of Clauses 2.8 and 2.9 of the Agreement establishes beyond certitude that the Petitioners were to be afforded an opportunity of remedying any defects/defaults, if any, prior to notice of suspension and only on failure to remedy, a notice of termination of 60 days could be issued which has not happened in the present case since no notice of suspension was issued and no opportunity was given to remedy a purported failure; (d) the report rendered by the Petitioners has been duly accepted by the Respondents; and (e) Completion Certificates dated 30.09.2020 and 16.03.2022 have been issued in favour of the Petitioners expressing satisfaction qua their work.

4. Lastly and emphatically, it was urged by the learned counsel that Clause 2.9.6 of the Consultancy Agreement provides that if either party disputes whether an event specified in paragraphs (a) to (e) of Clause GC 2.9.1 or 2.9.2 has occurred, such party may within 45 days after receipt of termination notice refer the matter to arbitration and this contract shall not be terminated on account of such event except in accordance with the terms of any resulting arbitral award.

5. Relying on an order dated 29.04.2021, passed by a Co-ordinate Bench of this Court in Egis India Consulting Engineers Private Limited v. Pawan Hans Limited, in OMP(I)(COMM.) 148/2021 wherein, reliance was placed on an earlier order dated 22.10.2018 in M/s. Eptisa Servicios De Ingeniera S.L. v. National Highways and Infrastructure Development Corporation Limited, in OMP(I)(COMM.) 371/2018, it is argued that based on a similar clause in the Agreements before the said Courts, interim orders staying the operation of the impugned termination notices have been granted. It is submitted that the Agreement in the present case contains Clause 2.9.6 which contemplates resolution of disputes pertaining to termination of Agreement through arbitration and the Petitioners have invoked the arbitration clause within the stipulated period albeit on the 45th day.

6. Mr. Shukla, on the other hand, opposes the grant of interim relief on the ground that the Agreement in question is a determinable contract. The effect of breach of a contract by a party seeking to specifically enforce the contract under the Indian Law is enshrined in Section 16(c) read with Section 41(e) of