$~9

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 30^th May, 2023

+

O.M.P.(I) (COMM.) 69/2023 & I.A. Nos. 4381/2023,

4383/2023

M/S. SIMPLEX INFRASTRUCTURES LIMITED

..... Petitioner

Through:

Mr.Raj

Shekhar

Rao,

Sr.

Advocate with Ms. Hetu Arora

Sethi, Ms. Lalit Mohini Bhat,

Mr.Rahul Jain, Mr.Siddharth

Agarwal, Mr.Anirudh Bhat and

Ms.Prachi Dubey, Advocates.

versus

NATIONAL HIGHWAY AUTHORITY OF INDIA

..... Respondent

Through:

Mr.Manish K. Bishnoi and

Mr.Nirmal Prasad, Advocates.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

1.

This petition has been filed under Section 9 of the Arbitration &

Conciliation Act, 1996 (hereinafter referred to as „the Act‟) seeking

stay on the operation of the Termination Notice dated 27.02.2023

issued by the respondent, terminating the Contract dated 12.04.2018

by which, the respondent had awarded to the petitioner the work of

rehabilitation and upgradation to four laning of NH-31D from km

113.200 to km 154.854 (Package-II A) Ghoshpukur-Salsalabari

Digitally Signed By:SUNIL

Signing Date:01.06.2023

16:40:42

Signature Not Verified

Section in the State of West Bengal on Engineering, Procurement and

Construction (“EPC”) basis.

2.

The petitioner further prays for restraining the respondent from

encashing/invoking the Bank Guarantees given under the Contract and

also floating any fresh tender to carry/execute the balance work

awarded to the petitioner under the above mentioned Contract.

3.

The learned senior counsel for the petitioner, placing reliance

on Article 4.1.3 read with Article 8.1 and Annexure-II (Schedule-A)

of the Contract, submits that the respondent was under an obligation to

provide 60 meter Right of Way in 90% of the length along with

existing Right of Way in the complete length of the Project by the

„Appointed Date‟, which was 21.01.2019, and the balance 10% within

90 days of the said Appointed Date. He submits that admittedly, the

respondent failed to discharge its obligations under the Contract,

resulting in a Supplementary Agreement dated 01.04.2021 being

executed between the parties. The said Supplementary Agreement

records that even on the date of the Supplementary Agreement, only

27.8 kms of length of the land out of total of 41.654 kms was provided

by the respondent to the petitioner.The balance 13.854 kms of length

was to be provided by June, 2021. The petitioner was also instructed

not to deploy any machinery/resources on the stretches without

requirement to do so and written confirmation of the Authority

Engineer.

4.

He submits that in support of the above understanding, as on

31.10.2022, only 37.514 kms of the land was handed over by the

Digitally Signed By:SUNIL

Signing Date:01.06.2023

16:40:42

Signature Not Verified

respondent to the petitioner, and that too only in stretches which made

it impossible for the petitioner to carry out the work with expedition.

In this regard, he places reliance on a chart that has been handed-over

by the learned counsel for the petitioner during the course of

submissions.

5.

He submits that, therefore, the assertion in the Impugned

Termination Notice dated 27.02.2023 of the petitioner having

abandoned the Project Site is patently false and the respondent is

merely trying to pass the blame on to the petitioner. He submits that

the petitioner, without prejudice to all the rights and contentions of the

petitioner, is ready & willing to complete the project work and has

machinery, material and manpower on the site to complete the work in

an expeditious manner.

6.

On the other hand, the learned counsel for the respondent,

placing reliance on the monthly progress reports, submits that hardly

any work is being carried out by the petitioner at the Project Site. He

submits that even as per the recommendation of the Authority

Engineer, the petitioner was to achieve the Second Project Milestone

by 19.12.2022, which has no