Neutral Citation Number : 2022/DHC/005778

$~21

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Judgment delivered on: 15.12.2022

+

FAO(OS) (COMM) 295/2022 & CM APPL. 45618/2022, CM

APPL. 45619/2022, CM APPL. 45620/2022 & CM APPL.

49377/2022

RAM KRIPAL SINGH CONSTRUCTIONS PVT. LTD ...... Appellant

versus

INDIAN OIL CORPORATION LTD

..... Respondent

Advocates who appeared in this case:

For the Appellant:

Mr. Amit Pawan, Mr. Arun, Mr. Hassan Zubair Waris, Ms.

Shivangi and Mr. Aakarsh, Advocates.

For the Respondent:

Mr. Rajeev Sharma, Senior Advocate with Ms. Reeta Mishra,

Mr. Abhishek Birthray, Mr. Prateek Seth, Mr. Kartikey Tripathi

and Mr. Aman Kumar, Advocates.

CORAM:-

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1.

Appellant impugns Order dated 13.10.2022 whereby the application

of the respondent under Order 39 Rules 1 and 2 CPC has been dismissed

holding that the application for injunction does not survive, and directing

that it is open to the Appellant to take appropriate remedies impugning the

Digitally Signed

By:KUNAL MAGGU

Signing Date:23.12.2022

14:29:35

Signature Not Verified

Neutral Citation Number : 2022/DHC/005778

Fax of Acceptance dated 07.10.2022 and for claiming damages and other

reliefs as may be permissible in law.

2.

Appellant had filed the subject suit seeking declaration that

invocation by the Respondent of Clause 4.7.4.0 of General Conditions of

Contract was illegal and void abinitio. Appellant had also sought a

declaration that the contract does not require the Appellant to supply Hot

Dipped Galvanised Iron Bolt or Steel section, and if it did require supplying

the same, the supply would be at the existing market rate as extra works. A

mandatory injunction is also sought against the Respondent to provide the

maps/plans/drawings for the underground pipes/cables/utilities at the work

site so that the Appellant can carry out the work in question at a fast pace.

3.

Pursuant to Notice Inviting E-Tender for piling and civil and

structural works for capacity expansion project at the Respondent’s Oil

Refinery at Barauni, Appellant was awarded the contract for Engineering

Procurement Construction and Material-22 (‘EPCM-22’) which comprises

of 25 segments. The dispute is with regard to one of the 25 segments.

4.

It is an admitted position that for the expansion project, one of the

segments i.e., EPCM-22 was awarded to the Appellant, and there are other

similar segments awarded to third parties. The dispute pertains to the

termination of the contract with regard to one of the 25 segments which

Respondent has terminated on the ground of delay in performance by the

Appellant, and awarded the same to a third party.

Digitally Signed

By:KUNAL MAGGU

Signing Date:23.12.2022

14:29:35

Signature Not Verified

Neutral Citation Number : 2022/DHC/005778

5.

Learned counsel for the Appellant contends that termination has

been done on the ground of delay in performance. He submits that there is

substantial material on record to show that the Appellant was not at fault in

the execution of the contract and the site on which the work was to be

executed was admittedly not made available by the Respondent as the same

was encroached upon by material of third party contractors of the

Respondent. He submits that since the termination is wrongful, and the

relevant clause contains a negative covenant, Respondent could not have

terminated the contract and an injunction was liable to be granted

restraining the Respondent from terminating the contract and allotting it to

a third party with regard to one of the segments.

6.

On a query from the learned counsel for the Appellant, the

categorical answer is that 25 segments are not so integral that one of them

cannot be separated from the others. The admitted position is that one of

the segments could have been independently allotted to a third p