ORDER :

1. On 30.05.2023, the matter was heard and the order was reserved, on the application preferred by the respondents under Article 226 (3) of the Constitution of India seeking vacation of the ex parte interim order dated 13.03.2023 passed in the present petition.

2. As per the pleaded facts, the respondents issued a tender bearing no.NWR/SC/FL-DNA/Civil-419150307-R for the works of construction of major bridges (12 in number) and minor bridges (PSC Slab) from km 0.00 to km. 108.750 between Phulera-Degana Section of Jodhpur Division.

2.1. The petitioner applied pursuant to the said tender, upon being declared as a successful bidder, and the respondent no.5 vide Letter of Acceptance (L.O.A.) dated 25.02.2019, informed the petitioner that its tender for the works had been accepted for a contract price of Rs.29,70,55,223.89/-. The works in question were initially to be completed within a period of 18 months and the petitioner was called upon to execute and register an agreement with the respondents in regard thereto.

2.2. Thereafter, the petitioner addressed various letters to the respondents and requested them to extend the concurrency of the contract from time to time. The respondents time and again had granted extension of time to carryout and complete the works, without any penalty.

2.3. The respondents issued first 7 days’ notice dated 04.06.2022 to the petitioner in terms of Clause 62 of the General Conditions of Contract, 2014 (hereinafter referred as Contract, 2014) by which the petitioner was required to show the adequate progress of the works; the petitioner submitted a reply to the said notice. Thereafter, the respondents and the petitioner entered into a supplementary agreement dated 09.06.2022. The petitioner filed an application on 19.06.2022 for extension of currency of the contract in question.

2.4. The respondents again issued second 7 days’ notice on 16.07.2022 to the petitioner, again requiring the petitioner to show the adequate progress of the works; the petitioner filed a reply to the said notice also.

2.5. In response to the application submitted by the petitioner dated 19.06.2022, the respondents vide letter dated 14.10.2022 had extended the currency of the contract in question from 01.08.2022 to 31.01.2023. The respondents issued third and fourth 7 days’ notices dated 18.10.2022 and 20.01.2023, in regard to the same progress of the works, and alleging failure on the part of the petitioner to show the same. The respondents also issued first 48 hours notice dated 30.10.2022 for completion of the works in question, but the same was withdrawn in the meeting dated 01.11.2022, on the request made by the petitioner in its reply dated 31.10.2022.

2.6. Thereafter, the petitioner again applied for extension of the currency of the contract in question, which was accordingly, extended from 01.02.2023 to 28.02.2023 by the respondents vide letter dated 04.02.2023, while imposing a penalty of Rs.15,000/- per week upon the petitioner.

2.7. The respondents issued a fifth 7 days’ notice dated 09.02.2023 to the petitioner, which was replied on 16.02.2023 by the petitioner; thereafter, again a 48 hours notice was issued on 20.02.2023, which as per the petitioner, was received on 02.03.2023. Subsequently however, the respondents issued the impugned termination notice dated 24.02.2023, terminating the contract in question.

3. Mr. R.N. Mathur, learned Senior Counsel assisted by Mr.Nishit Shah, appearing on behalf of the petitioner, submitted that the aforementioned 7 days’ notice (five in number) were issued to the petitioner by the respondents seeking the progress report of the works in question only, and not for termination of the contract in question. Therefore, as per learned Senior Counsel, the impugned termination notice is not sustainable in the eye of law.

3.1. Learned Senior Counsel further submitted that the first 48 hours notice was withdrawn by the respondents in the joint meeting on 01.11.2022; whereafter, the