The right of the petitioner to invoke the arbitration agreement is not obstructed by the failure of conciliation to take place within the stipulated time period.

JUDGMENT :

(Vipin Sanghi, J.)

The petitioner has preferred the present writ petition to seek the following substantive reliefs :

“i) Issue a writ, order or direction in the nature of certiorari, quashing the impugned office memorandum dated 20.06.2023 issued by respondent No. 2 (Annexure No. 4 to this writ petition).

ii) Issue a writ, order or direction in the nature of certiorari, quashing the impugned notice inviting bid dated 22.07.2023 issue by respondent No. 2 (Annexure No. 6 to this writ petition).

iii) Issue a writ, order or direction in the nature of mandamus, commanding/directing the respondents to strictly follow the dispute resolution clause provided under clause 26.2 of the contract bond and decide the dispute between the parties in accordance with the provisions contemplated under the said clause.”

2. The petitioner was awarded the contract by the respondent, namely, ‘Strengthening work from Km. 10.000 to Km. 25.000 and Km. 48.000 to Km. 77.100 on National Highway 309-B under Annual Plan 2020-21 in the State of Uttarakhand on EPC mode’, vide agreement dated 21.06.2021. By the impugned Office Memorandum dated 20.06.2023, the respondents have terminated the said contract, on the ground of alleged defaults committed by the petitioner-contractor. Thereafter, the respondents have initiated the fresh tender process for execution of the balance work, vide notice inviting bid dated 22.07.2023.

3. The case of the petitioner is that the petitioner has offered to complete the remaining work within four months, whereas the respondents are granting nine months under the new NIT dated 22.07.2023. The petitioner submits that the respondents should accept his offer. The further case of the petitioner is that the petitioner has invoked clause 26 of the agreement, which provides for conciliation, but there has been no response from the respondents. The further case of the petitioner is that, since conciliation has not taken place, the petitioner would not be able to invoke the arbitration agreement, contained in clause 26.3 of the agreement.

4. We have heard learned counsel for the petitioner, and perused the record, and we do not find any merit in the aforesaid submissions of the petitioner.

5. Firstly, the respondents have terminated the petitioner’s contract by giving reasons therefor in their impugned Office Memorandum dated 20.06.2023. It is not for this Court, in these proceedings, to adjudicate the legality, or correctness, of the said termination. The dispute – as to whether, the petitioner committed default, or not, is a matter arising from the contract between the parties. It involves determination of disputed questions of fact, and the petitioner has efficacious and alternate remedy for determination of the said dispute. Therefore, challenge to the Office Memorandum dated 20.06.2023, is rejected while leaving it open to the petitioner to agitate the same in appropriate proceedings.

6. The next submission of learned counsel for the petitioner that, since the respondents have not resorted to conciliation, as provided in clause 26.2, the respondents should be directed to conciliate the dispute, also has no merit.

7. Clauses 26.2 and 26.3, which deal with Conciliation and Arbitration respectively, read as follows:

“26.2 Conciliation

In the event of any Dispute between the Parties, either Party may call upon the Authority’s Engineer, or such other person as the Parties may mutually agree upon (the “Conciliator”) to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Conciliator or without the intervention of the Conciliator, 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 Contractor for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meet