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2021 DIGILAW 247 (CAL)

Sundarananda Barman v. State of West Bengal

2021-04-22

SABYASACHI BHATTACHARYYA

body2021
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. Since the arguments of the applicants in the review petition and respondent no. 1 were recorded at length in the order dated April 16, 2021, those are not being narrated again in order to avoid unnecessary repetition. However, such arguments are considered and referred to in the following order. 2. The review applicants primarily rely on certain documents which, although in the custody of the applicants when the order under review was passed, were not with learned counsel for the applicants at that point of time, due to which those could not be placed before Court on the said date. 3. The first such document is a print-out of Clause 70.0 which is the Force Majeure clause contained in the tender agreement entered into between the applicants and the tender issuing authority. Such clause is reproduced below: “70.0 FORCE MAJEURE If, at any time during the currency of the Contract, the performance in whole or in part by either party of any obligation under this Contract shall be prevented or delayed by reason of any war, hostilities, invasion, acts of public or foreign enemies, rebellion, revolution, insurrection, civil commotion, sabotage, large scale arson, floods, earthquake, large scale epidemics, nuclear accidents, any other catastrophic unforeseeable circumstances, quarantine restrictions, any statutory rules, regulations, orders or requisitions issued by a Government department or competent authority or acts of God (hereinafter referred to as “event”) then, provided notice of the happening of such an event is given by either party to the other within 21 days of the occurrence thereof: (a) Neither party shall by reason of such event be entitled to terminate the Contract or have claim for damages against the other in respect of such nonperformance or delay in performance.” 4. The applicants also rely on a communication dated May 25, 2020 issued from the end of the applicants to the Vice-Chairman, Hooghly River Bridge Commissioners, seeking further extension of the time for completion of the work till March 31, 2021. 5. The other document relied on by the applicants is another communication dated June 15, 2020, reiterating the previous request for extension of time. 6. It is contended that the said documents, if considered by this Court while passing the order under review, could have changed the outcome of the writ petition. 7. 5. The other document relied on by the applicants is another communication dated June 15, 2020, reiterating the previous request for extension of time. 6. It is contended that the said documents, if considered by this Court while passing the order under review, could have changed the outcome of the writ petition. 7. By placing reliance on the relevant portions of the order under review, dated December 9, 2020, learned counsel argues that the primary basis of dismissal of the writ petition (WPA No. 10069 of 2020) was that the applicants had not requested for extension of time before expiry of the contract on its last-extended date, that is, May 31, 2020. However, the communications-in-question clearly indicate that such extension was actually sought by the applicants on May 25, 2020, that is, prior to the expiry of the extended period of contract on March 31. 2020. As such, it is contended that the premise of the order under review is rendered irrelevant in view of the said communications. 8. The primary basis of the contentions of respondent no. 1 is that the materials now produced, even if shown to the court at the juncture when the order under review was passed, would not have altered the fate of the writ petition. 9. It has been argued by respondent no. 1 that Clause 70.0 (a) restrains both the parties to the agreement from terminating the contract or claim for damages against the other in respect of such nonperformance or delay in performance. 10. In the present case, as observed in the order under review itself, the termination was automatic, that is, by efflux of time. Hence, there was no positive act of termination from the end of the tender issuing authority. 11. The scope of a review application is limited. In the present case, no error apparent on the face of the record is argued by the applicants, nor was there any reason akin to the grounds provided in Order XLVII of the Code of Civil Procedure. The only ground invoked by the applicants is “discovery of new material.” In the present case, the applicants were fully aware and already in custody of the documents now sought to be produced; but those were not annexed to the writ petition by the petition. The only ground invoked by the applicants is “discovery of new material.” In the present case, the applicants were fully aware and already in custody of the documents now sought to be produced; but those were not annexed to the writ petition by the petition. As such, it is doubtful as to whether, strictly speaking, the documents come within the purview of “new material” or could be said to have been discovered after the order under review was passed. 12. However, even a liberal interpretation of such provision in favour of the petitioner, insofar as it restricts either party to the contract from terminating the contract or claiming damages by reason of large scale epidemics or quarantine restrictions, which are mentioned among other events in the said clause, in the present case there was no termination from the end of the authorities, on such grounds or otherwise. The termination was automatic by efflux of time within the purview of the Indian Contract Act, 1872. Thus, the futile prayers for extension, even if produced at the time of passing of the order under review, could not have changed the fate of the writ petition. 13. As seen from the order under review dated December 9, 2020, the premise of the order was that the contract came to an end by efflux of time on May 31, 2020. It was categorically held that the impugned letter dated July 8, 2020 was merely an intimation of the petitioners based on the prior closure of jural relationship between the parties to remove the construction materials and machineries of the petitioners from the contractual site. However, the contract stood terminated on May 31, 2020. 14. Although, incidentally, it was discussed in the order that the applicants had a remedy in praying for extension within the extended date of expiry and that no such prayer was made by the applicants, the said observation was not the sole basis of the order. Since it was the discretion of the tender issuing authority whether or not to further extend the time for completion of the project and the tender issuing authorities chose not to so extend, the documents sought to be produced with the review application would not have altered the outcome of the writ petition since, in any event, the contract expired by efflux of time on May 31, 2020. 15. 15. As discussed above, Clause 70.0 (a) of the agreement does not confer any additional benefit on the applicants, since there was no positive act of termination by the tenderer on the grounds contemplated therein or otherwise. The termination being automatic, the materials now placed before court along with the review application would have been irrelevant for the purpose of deciding the writ petition and could not have altered the conclusion reached in the order under review. 16. In such view of the matter, RVW No. 2 of 2021 along with CAN No. 1 of 2021, filed in connection therewith, are dismissed. 17. There will be no order as to costs.