10-01-2025 IN THE HIGH COURT AT CALCUTTA Item No.6 Constitutional Writ Jurisdiction Subrata Bhattacharyya Appellate Side AR(C)

WPA No.676 of 2025 M/s. Bose Enterprise -vs-

Union of India & Another Mr. Bikash Ranjan Bhattacharya, sr. adv.

Mr. Sakya Sen, sr. adv.

Mr. Priyankar Saha, adv. Mr. Hemant Tiwari, adv.

Mr. Satrajeet Sen, adv. …for the petitioner Mr. Soumak Bera, adv. …for the respondents

1. Affidavit of service filed in Court be taken on record.

2. The petitioner is aggrieved by the termination notice dated January 7, 2025 (Annexure P8, pp.91 & 92) terminating the contract of the petitioner in terms of clause 62 of the Standard General Conditions of Contract. By the said notice, the petitioner has been barred from participating in the tender for executing the balance work; the security deposit of the petitioner has been directed to be forfeited; and Performance Guarantee is liable to be encashed.

3. The petitioner submits that the railway authorities have extended the completion date of the contract up to May 20, 2025 without imposition of the liquified damages as per paragraph 17A of the General Conditions of Contract. The petitioner was advised to accept the modified date of completion of the contract and completion of other necessary procedures related to time extension.

4. On December 27, 2024, a seven days’ notice was given to the petitioner under clause 62 of the Standard General Conditions of Contract to make good the progress, failing which further action, as provided in clause 62 of the Standard General Conditions of Contract namely to terminate the contract and complete the balance work without its participation, would be taken.

5. On January 3, 2025, the petitioner replied to the said notice seeking withdrawal of the aforesaid notice. A 48-hours’ notice was served through e- mail to the petitioner on January 6, 2025 at 12.38 p.m. asking it to commence work and to make good the progress of the work; failing which and on expiry of the 48-hours’ notice, the contract will be rescinded. The file attached to the e-mail is dated January 4, 2025 but the same was sent to the petitioner only on January 6, 2025. Immediately thereafter on January 7, 2025, the impugned notice of termination was served upon the petitioner.

6. Specific case of the petitioner is that as time was extended unconditionally till May 20, 2025, the railway authorities could not have invoked the clause for termination of the contract prior to the expiry of the said date.

7. Learned counsel representing the railways seeks time to obtain instruction in the matter.

8. Clauses 17A and 62 of the Standard General Conditions of Contract have been placed before this Court.

9. Clause 17 deals with extension of time in contract. The said clause is invoked only when the extension of time is made due to certain modification in the contract or when the delay is not due to the railways or the contractor or when the delay is due to the railways.

10. The invocation of the aforesaid clause implies that the petitioner was not directly liable for the delay in concluding the work within the contract period.

11. Once the authority invokes clause 17A and extends the time for a particular period, immediately within a week or thereafter, the authority ought not to have issued the 48-hours’ notice for conclusion of the work. The subject work could not have been completed within 48 hours.

12. In view of the above, the Court is, prima facie, satisfied that the petitioner has made out a strong case for passing an interim order in its favour.

13. Hence, the respondents are restrained from giving any effect and/or further effect to the notice of termination of contract till April 30, 2025 or until further order, whichever is earlier.

14. The contract of the petitioner has been extended till May 20, 2025. The petitioner shall be bound to continue with the work in such a manner so that the same may be completed within the extended time period.

15. The railways are directed to file their affidavit-