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2020 DIGILAW 168 (ALL)

D. H. B. Narendra Construction v. Union of India

2020-01-14

MANOJ KUMAR GUPTA

body2020
JUDGMENT : Manoj Kumar Gupta, J. 1. The instant appeal under section 37 of the Arbitration and Conciliation Act 1996 has been filed challenging the order passed by District Judge, Ballia dated 18.12.2019, in Misc. Case No. 15 of 2019, rejecting the application filed by the appellant under section 9 of the said Act. 2. In brief, the facts giving rise to the instant appeal are that the appellant was awarded a work order on 26.12.2018 by the Railways for construction of platforms, gate lodge, signal and station building, foot-over bridge and other miscellaneous works between Ballia and Karimuddinpur, in connection with doubling work of the railway line. The case of the appellant is that the Railways did not provide design for certain sectors to the appellant. Consequently, the work could not be started in those sectors. In other sectors, where layout design was provided to the appellant, it claims to have executed substantial part of the work. The appellant was served with a notice dated 24.7.2019, requiring it to show cause as to why the contract be not terminated for not being able to execute it within time. The appellant apprehending that in pursuance of the said show cause notice, its contract would be cancelled, approached the Court under section 9, seeking an injunction restraining the Railways from cancelling the work contract dated 26.12.2018, or from forfeiting security tendered in respect thereof and for a further direction that the time under the contract be extended till March 2020 and the Railways be restrained from interfering in the execution of the remaining work by the appellant. 3. The Railways contested the application and asserted that the appellant had failed to abide by the terms of the work order dated 26.12.2018. The work layout was duly handed over to the appellant on 1.11.2018, but the appellant failed to execute the work. The work to be executed is of public importance. Delay on the part of the appellant in execution thereof has resulted in escalation of the cost. The appellant is not entitled to any injunction. 4. The Court below after considering the pleadings and evidence led before it, held that there was no evidence on record to establish that the designs and layouts were not handed over to the appellant in time. The appellant is not entitled to any injunction. 4. The Court below after considering the pleadings and evidence led before it, held that there was no evidence on record to establish that the designs and layouts were not handed over to the appellant in time. It is also held that work under the contract was of special significance and any delay would have serious adverse consequence. Thus, the appellant was not found to be having any prima facie case in its favour, nor balance of convenience lies with it. 5. Counsel for the appellant submitted that the appellant had a strong prima facie case as the designs and layouts were not made available to it in time. Consequently the appellant cannot be held liable for delay. It is also submitted that the layout plan was handed over to the appellant during monsoon period when there was flood in the area where work was to be executed. Consequently, there was no default on the part of the appellant and the show cause notice issued to the appellant in relation to termination of contract, is wholly illegal. 6. The relief which the appellant had sought by filing application under section 9 of the Act, if granted, would amount to an order by Court specifically enforcing the work contract between the parties. As a first principle of law, in case of breach of a contract which could be compensated in terms of money, the relief for specific performance could not be granted. Any injunction order restraining the respondents from not terminating the contract, extending the time limit under which contract was to be executed and restraining the respondents from interfering in the execution of the work by the appellant, is nothing but an order by the Court directing specific performance of the contract and that too on terms varied by it. In considered opinion of this Court, such an injunction could not be granted. 7. This Court therefore finds no illegality in the impugned order to warrant interference. The appeal lacks merit and is dismissed.