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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 08.03.2021

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ARB.P. 553/2020

M/S T.K. ENGINEERING CONSORTIUM PVT.

LTD.

..... Petitioner

Versus

THE DIRECTOR (PROJECTS) RITES LTD.

& ANR.

..... Respondents

Advocates who appeared in this case:

For the Petitioner

: Mr Rituraj Biswas, Ms Sujaya

: Bardhan, Mr Rituraj Choudhary and

: Mr Mayan Prasad, Advocates.

For the Respondents

: Mr G. S. Chaturvedi and

: Mr Shrinkar Chaturvedi, Advocates

: for RITES Ltd.

: Mr Ripu Daman Bhardwaj, CGSC

: for R-3.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The petitioner, T.K. Engineering Consortium Pvt. Ltd. (hereafter

‘TKE’), is a company incorporated under the Companies Act, 1956 and

is engaged in providing Road Construction and other Engineering

services.

Digitally Signed

By:DUSHYANT

RAWAL

Signature Not Verified

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2.

TKE has filed the present petition under Section 11 of the

Arbitration and Conciliation Act, 1996 (hereafter the ‘A&C Act’), inter

alia, praying that an arbitral tribunal be constituted to adjudicate

disputes that have arisen between the parties in relation to the Contract

Agreement dated 27.02.2017 for “Development of Integrated Check

Post at Dawki (Meghalaya) along Indo-Bangladesh Border”.

3.

RITES Ltd. (hereafter ‘RITES’) had issued a Notice Inviting

Tender (NIT) on 01.08.2016 for “Development of Integrated Check Post

at Dawki (Meghalaya) along Indo-Bangladesh Border”. TKE submitted

its bid pursuant to the aforesaid tender. The same was accepted and,

RITES issued a Letter of Award (LoA) dated 30.09.2016, on behalf of

respondent no.3 (Land Ports Authority of India), awarding the contract

to TKE. Thereafter, RITES also entered into the Contract Agreement

dated 27.02.2017 (hereafter ‘the Agreement’).

4.

TKE claims that the site in question was handed over on

18.11.2016. It immediately mobilized resources (men and machinery)

and commenced excavation work. TKE claims that the execution of the

works was hampered by RITES and/or for reasons attributable to it,

resulting in TKE suffering losses to the extent of ₹2,37,23,39,473/-. It

also claims that the work was stopped by the Border Guards of

Bangladesh (BGB) as it objected to any activity within forty metres of

the International Border. In addition, the forest department also objected

to setting up of the camp sites. There were also substantial delays on the

Digitally Signed

By:DUSHYANT

RAWAL

Signature Not Verified

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part of RITES as it did not provide the necessary drawings and fronts

within the stipulated time for carrying out the work.

5.

On 07.01.2019, RITES issued a notice under Clause 3(ii) of the

General Clauses of the Contract (GCC) of the Agreement, calling upon

TKE to expedite the work failing which it would terminate the

Agreement. TKE responded to the said notice by its letter dated

09.01.2019 pointing out the reasons for the delay in execution of the

works.

6.

Notwithstanding the above, RITES terminated the Agreement by

a letter dated 17.01.2019. TKE challenged the termination letter dated

17.01.2019 before the High Court of Meghalaya by filing a petition

under Article 226 of the Constitution of India, being W.P. (C) 10/2019:

Others. The said petition was dismissed by an order dated 09.09.2019.

Aggrieved by the same, TKE filed a Special Leave Petition – SLP

(Civil) No. 26816 of 2019 – in the Supreme Court of India. The Supreme

Court, disposed of the said Special Leave Petition, by an order dated

22.11.2019 observing that “it would be appropriate for the petitioner to

as it may be advised”. The Supreme Court also made it clear that the

observations made by the High Court, while disposing of the Writ

Petition, would not be taken in