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2014 DIGILAW 2453 (ALL)

R. G. Build Well Engineers Ltd. v. State of U. P.

2014-08-12

ABHINAVA UPADHYA

body2014
JUDGMENT Hon'ble Abhinava Upadhya, J. By means of this writ petition the petitioner has come up to this Court against the order dated 26.7.2014 by which upon the application of the petitioner under Order XXXIX Rule 1 and 2 CPC only notices have been issued. 2. The claim of the petitioner is that he had entered into contract with respondent no.3 with regard to laying surface on the road NH No.30 from 285 Kilometers milestones to 294 Kilometers milestones and 304 Kilometers milestones to 342 Kilometers milestones on Haridwar, Pilibhit and Bareilly road. The estimated cost was determined at Rs. 11,51,54,600/- and a sum of Rs. 59,58,000/- was furnished as performance security. It was further contemplated in the contract that for a period of three years, the petitioner was liable for "defect liability" in case any defect occurs after the completion of the work. It was also contemplated that in case the defect is not rectified then the same would be recovered from the bank guarantee furnished by the petitioner. 3. Learned counsel for the petitioner submits that by impugned letter dated 28.4.2014 certain defects were noticed and the petitioner was required to rectify the defects failing which the amount spent for rectification will be recovered from the bank guarantee of the petitioner. My attention has been drawn to a letter dated 8.1.2014 by respondent no.3 by which the same site plan has been transferred to NH1 National Highways Authority of India for widening of the road. 4. According to the learned counsel for the petitioner, when the site itself has been transferred to another authority, it is not possible for him to rectify the defect especially when the widening of the road is being undertaken by the National Highways Authority of India. Apprehending that in case of non rectification of the said site pursuant to the contract, the respondent no.3 will en cash the bank guarantee furnished by the petitioner. Therefore, a dispute has been raised by the petitioner under Section 9 of the Arbitration Act and the petition has been filed along with an application under Order XXXIX Rule 1 and 2 CPC on which application only notices have been issued and the next date fixed is 23.8.2014. 5. Therefore, a dispute has been raised by the petitioner under Section 9 of the Arbitration Act and the petition has been filed along with an application under Order XXXIX Rule 1 and 2 CPC on which application only notices have been issued and the next date fixed is 23.8.2014. 5. By means of this writ petition the petitioner prays that till his application under Order XXXIX Rule 1 and 2 CPC is decided, the respondents be restrained from en cashing the bank guarantee. 6. I have heard Sri Naveen Sinha, learned Senior Advocate assisted by Sri Sudeep Harkauli, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Pradeep Kumar, learned counsel appearing for respondent no.6. 7. Learned Standing Counsel submits that under the contract the petitioner is liable to rectify the defects for a period of three years from completion of work and as of today three years have not yet expired and, therefore, an obligation is upon the petitioner to rectify the defect as has been directed by respondent no.3 pursuant to letter dated 28.4.2014. 8. In my view, no useful purpose would be served in keeping the writ petition pending further as a direction is issued to the court below to consider and pass appropriate orders in accordance with law on the application of the petitioner filed under Order XXXIX Rule 1 and 2 CPC on the next date fixed or any other short date that the court may fix for the consideration of the same. 9. Learned counsel for the petitioner upon the instruction received from his client, undertakes that the petitioner will not seek any adjournment in the matter. 10. Considering the aforesaid facts and circumstances of the case, the writ petition is being disposed of with the direction that till 23rd August, 2014 or any other short date that the court may fix for the consideration of the application of the petitioner under Order XXXIX Rule 1 and 2 CPC, the respondents will not encash the bank guarantee of the petitioner. With the aforesaid observation/direction the petition is finally disposed of.