S. No. 108

Supplementary list 5

IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) 1529/2022

M/S Khanday Infrastructure Private Limited

…Petitioner(s)

Through: Mr. S.A. Naik, Sr. Advocate

Vs.

U.T of J&K and Ors.

...Respondent(s)

Through: Ms. Insha Rashid, G.A.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

ORDER

21.07.2022

1. The petitioner is a construction company and a registered

contractor. The petitioner is aggrieved of the communication of

Technical Officer to Executive Director JKPCC Limited, Srinagar,

bearing No. PS/ED/J/1581-86 dated 15^th July 2022, addressed to

the

Deputy

General

Manager,

JKPCC

Limited,

Unit

Pulwama/Shopain, whereby a decision of the accepting authority

taken in terms of standard bidding document clause 53.2(c) and

53.4 of Section E of E-NIT dated 21^st July 2020, and 19^th April,

2021, with regard to the foreclosure of contracts at serial 1 and 2

and forfeiture of bank guarantee of the petitioner, has been

conveyed with a copy to the petitioner. The petitioner has also

been debarred from participation in future bidding in the JKPCC

Limited for one year. The impugned communication has been

challenged on several grounds.

2. The petitioner claims to have been allotted the construction work

of Trenz at Sheikhpora Bridge for Span 01 and 02, as also for Span

03, 04 and 05. The petitioner claims that despite various factors

causing disruption in the execution of the work, the petitioner

successfully completed the works in span 03 and 04, but due to

reasons beyond his control viz Covid-19 disturbances, observation

of the World Bank <ERA=, banning of oxygen cylinders, etc. the

execution of works of Span no. 01, 02 and 05 could not be

completed within the stipulated period.

3. The slow performance of the petitioner and its failure to complete

the works within time was placed before Contract Committee for

deliberations. The Accepting Authority took a decision to foreclose

the contracts for Span no. 1, 2 and Span no. 5, and forfeit the

Performance Security given in terms of bank guarantee dated 5^th

October, 2020, drawn from Jammu and Kashmir Bank Unit

Qazigund, and Rupees 6,57,600/- deposited vide TDR No. 514482

dated 5^th July, 2021, drawn from the same branch. The respondents

also debarred the petitioner from participating in bidding process

in JKPCC Limited for a period of one year.

4. It is this order which is called in question by the petitioner on the

ground that before foreclosing the contracts and acting under SBD

clause 53.2 (c) and 53.4 of Section E, no prior notice to show cause

and an opportunity of being heard was given to the petitioner. Mr.

S.A. Naik, learned counsel appearing for the petitioner, relies upon

couple of judgments from the Supreme Court to bring home his

point that blacklisting of a contractor cannot be done without

affording him an opportunity of being heard.

5. Having heard learned counsel for the parties, and perused the

material on record, I am of the considered view that the disputes

raised by the petitioner in this petition fall purely within the realm

of contract. The entire case of the petitioner is built on the edifice

that the impugned communication issued by the respondents is

tantamount to breach of terms and conditions of the contract. The

petitioner wants this Court to adjudicate and return a finding that

the petitioner, by not executing the contract in time, has not

breached any terms and conditions of the contract. He also wants

this Court to return a finding that the delay in completing the

works in question was attributable to the circumstances beyond his

control and, therefore, respondents should have given him enough

time to complete the works. Without commenting as to whether the

time was essence of the contract or not, as saying anything on the

issue may prejudice the petitioner, suffice it to say that this Court

in the exercise of its