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2025 DIGILAW 1465 (GAU)

T. L. Construction v. Union of India

2025-08-29

SUSMITA PHUKAN KHAUND

body2025
JUDGMENT AND ORDER : SUSMITA PHUKAN KHAUND, J. The petitioner in this case is M/S T. L. Construction. The Union of India represented by the Secretary to the Government of India, the Director (Project), RITES Ltd., the General Manager (Construction), Navodaya Vidyalaya Samiti, the General Manager (CP), RITES Ltd., the Senior Deputy Manager (CP) RITES Ltd. and the Executive Engineer (Construction) of Navodaya Vidyalaya Samiti are arrayed as respondent No. 1 to 6 respectively. 2. The Railway Technical Engineering Services Ltd. (hereinafter referred to as RITES) is a construction agency for and on behalf of Navodaya Vidyalaya Samiti (hereinafter referred to as NVS). 3. In the year 2005, the petitioner was awarded contract work for construction of Phase-A (Package-II) Building for Jawahar Navodaya Vidyalaya at Chare in Tuensang district, vide Letter of Award No. RITES/CP/TC/NVS/TUENSANG/PHASE-A/Pkg-II/2005/R dated 20.05.2005 issued by the GM of RITES for an amount of Rs.4,36,01,897.26/- with an Earnest Money of Rs. 4,35,000/-, including security deposit of 10 % of gross amount of running bills to the extent as per terms and conditions. Payments were also to be made as per terms and conditions. 4. It is submitted that as per the Letter of Award (LOA for short), no escalation price was payable in the said contract. Pkg-I of the same construction was awarded to another firm namely, M/S Tribeni Construction Pvt. Ltd. having its registered office at Guwahati, Assam, vide LOA No. RITES/PO/CP/TC/NVS/Tuensang/Ph-A/Pkg-I/2002 dated 25.07.2002. Agreement was signed on 22.08.2005 between the petitioner and the respondents and bare perusal of agreement reveals that the Engineer-in-charge i.e. the Deputy General Manager RITES, respondent No. 5 has the sole authority to determine/the contract and issue notice of such determination/termination to the contractor. 5. After the agreement was signed between the petitioner and the respondents, the petitioner purchased materials, deployed machineries, hired labourers and technicians and started the construction works. However, the execution of the contract was delayed and completion of work in time was frustrated and made impossible for reasons beyond the control of the petitioner. 6. The reasons justified by the petitioner is the prevailing insurgency in Tuensang district of Nagaland, forcing the petitioner to stop his work at times, which resulted in delay in the execution of the project. 6. The reasons justified by the petitioner is the prevailing insurgency in Tuensang district of Nagaland, forcing the petitioner to stop his work at times, which resulted in delay in the execution of the project. In the year 2006, one official from RITES was kidnapped from the project site causing panic and departure of many workers from the construction site, leading to unforeseeable delay in the execution of the construction works. Similar problems arose in the year 2009 owing to insurgencies. Thereafter, multiple demands for extortion, underground taxation interrupted the work on numerous occasions. RITES Limited delayed in providing drawings and blue prints, coupled with the fact that they had delayed payment of bills, causing delay in mobilization. The area where the contract was to be executed is a landlocked hilly terrain with rough and unmotorable roads, which are often blocked by landslide and other natural calamities. In addition, in the year 2008, the bridge at Tzutsung river, the only connecting bridge to the road accessing to the work site was washed away and the repair works was stalled for some time. Furthermore, there was disruption in transporting the building materials from Assam to Nagaland owing to the border disputes between the two States curfews, bandhs, demonstration, protests etc. 7. It is further submitted that vide letter No. F.2-55(135)2001- NVS(W)/243 dated 26.09.2011, the General Manager (Construction), NVS, revised the contract amount from Rs.937.36 Lacs to Rs.1310.93 Lacs, which included the earlier work awarded vide Package-I to M/S Tribeni Construction Pvt. Ltd. vide LOA dated 25.07.2002 and vide Package-II to T.L. Construction by LOA dated 20.05.2005, apart from three more additional works awarded to the petitioner for construction of playfield, boundary wall fencing and retaining walls. It was clearly mentioned in the letter that the Pacakage-II work awarded to the petitioner is revised including “Kitchen & Dining Block” at Sl. No. 3. As such, the petitioner took up the three additional works along with the original work awarded to him vide LOA dated 20.05.2005 under the impression that he shall be paid 2011 revised rates. 8. It is contended that after completion of the three additional works, the petitioner was paid as per old 2005 rates and the petitioner therefore stopped further progress of the work awarded to him vide LOA dated 20.05.2005 owing to financial loss incurred by him as he was paid as per the old 2005 rates. 8. It is contended that after completion of the three additional works, the petitioner was paid as per old 2005 rates and the petitioner therefore stopped further progress of the work awarded to him vide LOA dated 20.05.2005 owing to financial loss incurred by him as he was paid as per the old 2005 rates. This resulted in the delay of the construction works. 9. It is contended that during the ongoing discussions of payment as per the revised 2011 rates for the remainder of the works, the respondents illegally vide letter No. RITES/CP/NVS-Tuensang(Pkg-II)Gen- 09 dated 12.08.2013 issued by the Group General Manager/CP, RITES Ltd, unilaterally terminated the contract. As such, Civil Suit No. 01/2016 was filed before the Principal District Judge and Civil Judge Senior Division, Tuensang, challenging the termination of contract. However, vide order dated 03.04.2017 the suit was withdrawn since the respondents requested the petitioner that the issue could be resolved outside the Court. Thereafter, vide letter of Revocation of Contract No. RITES/GGM(CP)/ROC- II/CP/NVS/2017 dated 07.04.2017, the termination was withdrawn. It is emphasized that the dining kitchen of the school was almost complete at that point of time. 10. It is further contended that as agreed verbally, during the Supplementary Agreement on 11.04.2017, no timely payment was made. By the time the payment was made as per direction of this Court vide order dated 30.08.2016 in WP(C) No. 81(K)/2016 for the work already executed as per old rates, the rainy season had already set in, consequentially resulting in unmotorable roads for transport. The plight of the petitioner was brought to the notice of the respondent authorities through several letters but the respondents ignored their requests. The petitioner could not commence work owing to the huge financial loss as the rates of 2005 were taken into consideration. 11. It is also pertinent to mention that the Package-I contract for construction of Phase-A was abandoned by the Company M.S. Tribeni Construction (P) Ltd., Guwahati, owing to unsurmountable difficulties as mentioned above. 12. It is contended that as per letter dated 29..09.2011, the respondents have approved the revised cost of the work, the respondents ought to have paid for the work according to 2011 rates and not according to 2005 rates. 12. It is contended that as per letter dated 29..09.2011, the respondents have approved the revised cost of the work, the respondents ought to have paid for the work according to 2011 rates and not according to 2005 rates. It is contended that the petitioner braving all odds on the basis of an Abstract Summary of Construction, completed three additional works assigned to him, but he was paid only Rs.21,59,322/- (Rupees Twenty One Lacs Fifty Nine Thousand Three Hundred and Twenty Two). This impelled the petitioner to file WP(C) No. 263/2018, which is pending disposal before this Court. It is however submitted that the aforementioned case pertains to a different cause of action and does not overlap the cause of action in this case. It will be apt to mention that the respondents have also not disputed this stance of the petitioners and thus case was not called for evaluation. 13. Braving all odds, the petitioner completed construction of the school building in 2012 and the new JNV School Building was formally inaugurated on 13.11.2012. 14. It is contended that the respondents agreed for payment of Rs.23,78,174/- (Rupees Twenty Three Lacs Seventy Eight Thousand One Hundred and Seventy Four) as per the unrevised old 2005 schedule of rate and the same was certified by the concerned officer and countersigned by the petitioner in the Measurement Book of 01.05.2014, but no payment was made to the petitioner as per the respondents’ own letter dated 12.08.2013. Instead of releasing the undisputed pending bill, vide letter dated 29.03.2016 issued by the Additional GM/CP under Section 2, Clause 3 of the original Contract Agreement dated 22.08.2005, the petitioner was directed to deposit a total amount of Rs.2,18,60,493/- (Rupees Two Crores Eighteen Lacs Sixty Thousand Four Hundred and Ninety Three), purported to be security deposit, equivalent to 10% amount of the tendered value and the expenditure to be incurred to complete the remaining unexecuted building. 15. Aggrieved by this letter, the petitioner approached this Court by filing WP(C) No. 81(K)/2016 on 29.05.2016, which was disposed vide order dated 30.08.2016 and it was observed by this Court that : “11. As regard to the letter dated 29-03-2016, a perusal of the same would indicate that the said letter is a continuation of the termination letter dated 12-08-2013. Aggrieved by this letter, the petitioner approached this Court by filing WP(C) No. 81(K)/2016 on 29.05.2016, which was disposed vide order dated 30.08.2016 and it was observed by this Court that : “11. As regard to the letter dated 29-03-2016, a perusal of the same would indicate that the said letter is a continuation of the termination letter dated 12-08-2013. This court has also taken cognizance of the fact that there is a Civil Suit No.01/2016 pending before the Principal District & Session Judge, Tuensang wherein the letter of termination dated 12-08-2013 is under challenge. As the letter dated 29-03-2016 is a continuation of the letter of termination dated 12-08-2016, this court does not intent to interfere with the same at this stage. However, in the interest of justice and equity, the letter dated 29-03-2016 is kept suspended for a period of 2 (Two) months, within which time an appropriate petition for amending the Civil Suit No.1/2016 if so advised. However, such exercise should be completed at the earliest but not later than 2 (two) months from today.” 16. Against this order, a writ appeal was preferred by the respondent No. 3 and its officials, but the writ appeal was subsequently withdrawn. 17. The petitioner has impugned a part of the letter of revocation of termination of contract, dated 07.04.2017 vide letter No. RITES/GGM(CP)/ROC-II/CP/NVS/2017 to the extent that the remaining part of the work of Package-II shall be executed as per the terms and conditions of the original contract signed by the petitioner along with RITES Ltd., and that no compensation shall be paid for any reason causing delay in the project. Subsequent thereto, a Supplementary Agreement was executed and this Supplementary Agreement dated 11.04.2017 is also impugned to the extent directing the remaining work to be executed by the petitioner’s firm as per the contract dated 22.08.2005. 18. It is contended that the aforementioned Supplementary Agreement is in direct violation of Section 14 of the Indian CONTRACT ACT , 1872 (Act of 1872 for short) as well as Articles 14, 21 and 300A of the Constitution of India. 19. It is submitted that the petitioner was unable to complete the construction owing to force majeure and unforeseeable extra-ordinary circumstances beyond his control as well as the respondents. 19. It is submitted that the petitioner was unable to complete the construction owing to force majeure and unforeseeable extra-ordinary circumstances beyond his control as well as the respondents. Therefore, coercing the petitioner to execute the remaining construction of the Dining Kitchen as per 2005 rate is arbitrary, unreasonable, capricious and not tenable in law, more so, when he had been directed to work as per revised rate by letter dated 26.09.2011. It is averred that the purpose of the respondents’ office (s) is not to make profit out of contractor’s misfortunes. It is further submitted that when the petitioner sent an email on 07.05.2019 to Sr. DGM/RITES/CO-NVS (Co-Ordination) relating to his woes, the petitioner was conveyed that the General Manager/CP-II, RITES, would liked to have a meeting with the petitioner and then the petitioner on 27.12.2019 went all the way to Gurgaon, Haryana from Nagaland on his own expense and personally met the General Manager CP-II, RITES. 20. In this manner there were several correspondences and representations but to no avail. Even after the impugned termination letter dated 21.09.2020, the petitioner on 09.10.2020 wrote a letter to the General Manager/CP, RITES Ltd., but the price escalation and unforeseen contingencies were not taken into consideration. The petitioner has received the impugned letter dated 04.11.2020 by the Senior DGM (Civil), RITES Ltd. through which the petitioner was directed to pay a penalty. The petitioner has thus prayed to :- (i) Quash and set aside the impugned Letter of termination dated 21.09.2020 (Annexure-27); (ii) Quash and set aside the Letter dated 04.11.2020 (Annexure-33); (iii) Set aside the partly impugned revocation Letter dated 07.04.2017 (Annexure-16) and impugned Supplementary Agreement dated 11.04.2017 (Annexure-17) and, (iv) Direct all the respondents to allow the petitioner to execute the remaining 25% of the work awarded vide LOA dated 20.05.2005 under existing CPWD rate or pass any such orders as this Court deems fit and appropriate. 21. The respondents No. 2, 4 and 5 i.e. RITES Limited have filed an affidavit-in-opposition. The Additional General Manager, RITES Limited, on behalf of the respondents, have contended through their affidavit that the writ petition filed by the petitioner is not maintainable before this Court and a preliminary objection was filed to that effect. 21. The respondents No. 2, 4 and 5 i.e. RITES Limited have filed an affidavit-in-opposition. The Additional General Manager, RITES Limited, on behalf of the respondents, have contended through their affidavit that the writ petition filed by the petitioner is not maintainable before this Court and a preliminary objection was filed to that effect. The Office of the respondents had issued tender for construction of Phase-A (Pkg-II) Building for Jawahar Navodaya Vidyalaya at Chare, District Tuensang, Nagaland and being the successful bidder, the petitioner was awarded the contract vide LOA No. RITES/CP/TC/NVS/Tuensang/Phase-A/Pkg- II/2005/2R dated 20.05.2005. Subsequent thereto the Contract Agreement was executed between the parties agreeing to certain terms and conditions. It was agreed between the parties that the completion of the contract would be within 10 (Ten) months reckoned from the 10 th day of the LOA. A specific condition relating to the time and essence of the contract was that the petitioner would be liable to pay compensation for an amount calculated at the rate stipulated in Clause 2 of the General Conditions of Contract if the petitioner fails to achieve the target work within the stipulated period of time. 22. The respondents have also brought to the notice of this Court the Clause 13.0 of the Contract, which reflects that a competent Court at New Delhi only, and no other Court of any other district or country shall have any jurisdiction in any matter of dispute or for the enforcement of arbitration clause of the contract. Therefore, the respondents have prayed to dismiss this petition as the petition is not maintainable. 23. It is further contended that as per the Indian CONTRACT ACT , under Sections 226 and 230, RITES cannot be impleaded as a party in this matter. It is submitted that as the petitioner has itself stated that the respondents No. 2, 4 and 5 are acting for and on behalf of the respondents No. 1, 3 and 6 as agents, thereby RITES cannot be roped in as respondents in this case. The NIT floated on behalf of respondents No. 1, 3 and 6 and Clause 3.3 of General Conditions of Contract clearly reveal that respondents No. 2, 4 and 5 are disclosed agents on behalf of NVS. 24. The NIT floated on behalf of respondents No. 1, 3 and 6 and Clause 3.3 of General Conditions of Contract clearly reveal that respondents No. 2, 4 and 5 are disclosed agents on behalf of NVS. 24. It is also submitted that the Contract Agreement dated 22.08.2005 has been signed by the General Manager (CP), RITES Ltd. and the same has been terminated vide letter dated 21.09.2020. 25. The respondents Nos. 2, 4 and 5 have specifically denied paragraphs 6, 13, 25, 35, 39, 40, 41, 42, 47, 51 and 55 of the writ petition, but at the same time the respondents have not admitted the contents of the other paragraphs of the writ petition. 26. It is submitted that vide letter dated 11.03.2005, the respondents have agreed to the terms and conditions of the contract. It is contented that the petitioner cannot take the plea of unforeseen contingencies as Clause 4.1 of the contract already includes the same. It is further averred that Clause 9.1 of Section 3 of the Special Conditions of the Contract Agreement requires that the contractor shall be deemed to have satisfied himself before tendering as to the correctness and sufficiency of the tender for the works and of rates and prices quoted in the bills and, everything necessary for proper completion and maintenance of the works. Therefore, the petitioner's claim is not tenable in view of the provisions of Clause 4.1 and Clause 9.1 of the Contract Agreement. 27. It is submitted on behalf of the respondents that all additional, substituted, extra items of works and their pricing have been executed and paid to the petitioner as per the provisions of Clause 12 of the General Conditions of the contract of the agreement. The referred letter dated 26.09.2011 of the General Manager (Construction), NVS was a sanction on revised preliminary estimate and not the pricing of any item. 28. The termination of the contract vide letter dated 12.08.2013 by RITES was strictly under the provisions of Clause 3 of the General Conditions of the Contract of the Contract Agreement. The referred letter dated 26.09.2011 of the General Manager (Construction), NVS was a sanction on revised preliminary estimate and not the pricing of any item. 28. The termination of the contract vide letter dated 12.08.2013 by RITES was strictly under the provisions of Clause 3 of the General Conditions of the Contract of the Contract Agreement. The civil suit filed before the Principal District Judge, Tuensang and thereafter, revocation of the contract is a matter of record which have been concluded with signing of supplementary agreement dated 11.04.2017 between the petitioner and RITES Ltd. As per the terms of the supplementary agreement, the petitioner had to execute the left over works with all prevailing terms and conditions of the original contract dated 22.08.2005. 29. It is further contended that in a similar case which was filed for payment of additional works viz. play field, boundary wall, fencing and retaining wall as per the revised price/ rate relating to the case of Toshi Longkumar -vs- Union of India and 5 others in connection with WP(C) No. 263/2018, this Court was pleased to reject the case of the petitioner vide order dated 09.04.2021 on the issue of jurisdiction. 30. It was observed by this Court that: “this court deems it proper that a direction may be given that the matter may be placed before the appropriate forum. The petition stands disposed of as indicated above.” 31. It is averred by the respondents that the school building was partially completed and was handed over by the petitioner to NVS. However, the kitchen and dining and other services and development works were left over to be executed. 32. Moreover, termination of the contract along with the letter dated 29.03.2016 issued by the AGM (CP), directing the petitioner to deposit a total sum of Rs.2,18,60,493/- (Rupees Two Crores Eighteen Lacs Sixty Thousand Four Hundred and Ninety Three) was as per the comprehensive provision of Clause 3 of the General Conditions of the Contract Agreement. However, due payment amounting to Rs.9,38,000/- (Rupees Nine Lacs and Thirty Eight Thousand) has been paid to the petitioner on 30.06.2017. 33. The respondents have vehemently denied the paragraph 13 of the writ petition that there was a request by the respondents to the petitioner for settlement. However, due payment amounting to Rs.9,38,000/- (Rupees Nine Lacs and Thirty Eight Thousand) has been paid to the petitioner on 30.06.2017. 33. The respondents have vehemently denied the paragraph 13 of the writ petition that there was a request by the respondents to the petitioner for settlement. It is contended that the supplementary agreement dated 11.04.2017 was signed by the petitioner without any conditional reference of any contract as well as any articles of the Constitution of India. 34. It is averred that the emails and correspondence of the petitioner were not tenable but the email dated 27.11.2019 by the respondents was a request for meeting to advise the petitioner by the GM/CP-II to resume work at the site before its termination on account of abandonment of the site by the petitioner. It is further submitted that the letter dated 28.11.2019 by the Joint GM (Civil), RITES, was issued for termination of the contract owing to non-performance of obligations by the petitioner. It is also further stated that the letter dated 22.07.2020 by the petitioner to the respondents is devoid of merits and an escape route by the petitioner to justify why he has not resumed the execution of work at the site. 35. It is submitted that the termination of contract vide letter dated 21.09.2020 is not a unilateral decision by the respondents rather it was under the provision of Clause 3 of the General Conditions of the Contract Agreement. 36. It is submitted by the respondents that there was no provision in the Contract of Agreement for payment of due price owing to price escalation. It is also further submitted that no additional project was awarded to the petitioner. However, additional items were asked to be executed and thereby paid to the petitioner under the provisions of Clause 12 of the General Conditions of the Contract Agreement. It is further submitted on behalf of the respondents No. 2, 4 and 5 that no circumstances beyond the control of the petitioner has come to the notice of the respondents. 37. It is submitted that the referred letter No. F.2-55 (135)2001- NVS(W)/243 dated 26.09.2011 of the GM (Construction), NVS was a sanction on revised preliminary estimate and not the pricing of any of them. 38. 37. It is submitted that the referred letter No. F.2-55 (135)2001- NVS(W)/243 dated 26.09.2011 of the GM (Construction), NVS was a sanction on revised preliminary estimate and not the pricing of any of them. 38. It is further submitted that the petitioner miserably failed to execute the contract work after he was afforded adequate opportunity and even after several reminders were issued and notices were served in writing, the petitioner failed to complete his work without any reasonable cause. 39. Moreover, even after issuance of show-cause notice the petitioner never resumed execution of work at site, which clearly establishes precarious situation and the casual attitude of the petitioner. The respondents No. 2, 4 and 5 have prayed to dismiss the petition. 40. The principal in-charge of JNV, Kohima for respondent Nos. 1, 3 and 6 has filed an affidavit-in-opposition. It is submitted that indeed the petitioner was awarded the contract for executing the package to work, vide letter dated 20.05.2005 and an agreement was executed between RITES and the petitioner. It is submitted that time was the essence of the contract and the contractor covenanted with the company to execute, complete and maintain the works in conformity within the probation of the contract. However, the construction works progressed at snail's pace. It is further submitted that the Navadaya Vidyalaya Samiti (NVS for short) did not undertake any construction work directly on its own but instead allocated the construction agencies viz., CPWD, State PWDs, Central/State Government and PSU's etc. 41. It is further submitted that although the construction agencies undertook the work as per the rules prescribed in GFR, CPWD works manual, design and drawings at sites and makes the payment directly to the contractor as per the contract agreement between them, funds are however issued to the construction agencies by the NVS from time to time, as and when requested for release of funds. Thus the NVS has no locus standi in any dispute arising out of contract between the construction agency and its contractor. It is contended that in the instant case, the dispute is between the construction agency, RITES and the petitioner but, as the petitioner has arrayed the NVS and the UOI as respondents, this petition is not maintainable as both UOI and NVS has no locus standi on the matter. It is contended that in the instant case, the dispute is between the construction agency, RITES and the petitioner but, as the petitioner has arrayed the NVS and the UOI as respondents, this petition is not maintainable as both UOI and NVS has no locus standi on the matter. It is further contended that with regard to paragraphs- 6, 7, 9 and 12 of the petition, the submission on behalf of respondent Nos. 1 3 and 6 is that the petitioner has no legal right to any relief from the NVS. The respondents have however admitted that on their request, the NVS issued letter No. F.2-55 (135)2001-NVS(W)/243 dated 29.09.2011, and conveyed the re-revised A/A and E/S amounting to Rs. 1,310 Lacs against the revised A/A and E/S of Rs. 937.36 Lacs and against the original A/A and E/S of Rs. 788.28 Lacs, with direction to the construction agency (M/S RITES) to complete the work in all respect within the revised sanctioned amount within stipulated time. 42. Heard Mr. Sentiyanger, learned counsel for the petitioner; learned CGC, Mr Y. Wati for the respondent Nos. 1, 3 and 6 and learned counsel Mr. P. Pfotte for the respondent Nos. 2, 4 & 5. 43. I have considered the submissions at the Bar with circumspection. 44. It is apparent that out of the same contract, there were several litigations as offshoots of the subject contract. It is admitted on behalf of the petitioner that midway after completion of the school building and all the additional three works, awarded to the petitioner, he did not proceed with the construction of the dining hall and then his contract was terminated. It is submitted on behalf of the petitioner that after the termination of the contract and on several representations, he was invited to Delhi and he had travelled to Delhi on his own expenses and he was made to sign the supplementary agreement marked as Annexure-16 at page-122 of the petition. Supplementary agreement has also been partly impugned by the petitioner who has prayed to partly set aside this agreement. Although, this supplementary agreement was executed on 11.04.2017, the petitioner had agreed to complete the work at the contract price provided at the time and in the manner prescribed by the contract dated 22.08.2005. Supplementary agreement has also been partly impugned by the petitioner who has prayed to partly set aside this agreement. Although, this supplementary agreement was executed on 11.04.2017, the petitioner had agreed to complete the work at the contract price provided at the time and in the manner prescribed by the contract dated 22.08.2005. After execution of the agreement, now the petitioner has expressed his grievance over the unconscionable price rates enforced upon him by the respondents representing the RITES. 45. The petitioner has prayed to set aside the impugned unilateral letter of termination dated 21.09.2020. It is contended that the letter summoning the petitioner transpires the nonchalant and condescending attitude of the respondents when they have summoned the petitioner to Gurgaon during the pandemic on 12.10.2020. 46. It is apparent from the supplementary agreement that the petitioner had agreed to the rates of 2005. Now, when the petitioner has not completed his work as late as 2020, he is aggrieved by the unilateral termination. As there were several representations, the petitioner was summoned by the office of the RITES for a direct exchange of views. It is undisputed that the petitioner is yet to complete the dining and the kitchen of the school. It cannot be ignored that the most essential part of the building is yet to be completed and we are talking about a school. Another grievance of the petitioner was that this court has no jurisdiction and the petition is not maintainable under the jurisdiction of this court owing to a settlement by arbitration in the contract. 47. It has been emphasized through the argument that any of settlement and arbitration is to be decided under the jurisdiction of the Court of Delhi. The petitioner has relied on the decision of a Division Bench of this Court in W.A. No. 5/2021, wherein vide order dated 27.09.2023, it has been observed by a Division Bench of this Court that the writ appeal was against the judgment and order of a single bench in WP(C) No. 263/2018, which arises out of the same cause of action but does not overlap this case. The facts and circumstances of this case is not similar to the subject matter of the instant writ petition. The facts and circumstances of this case is not similar to the subject matter of the instant writ petition. However, the Lis was between the same parties and the cause of action is the same tender for construction of Phase A (package) building for Jawahar Navodaya Vidyalaya (JNV) at Chare in Tuensang District, Nagaland for a total price of Rs. 4,36,01,897.26/-, and the agreement was dated 22.08.2005. It was observed by the Division Bench that:- “further on perusal of the documents on record, we find that there is no specific arbitrary clause in the agreement dated 22.08.2025 nor have the parties entered into any arbitral agreement nor is there in an arbitral proceeding between the parties.” Although, W.A. No. 5/2021 arising out of WP(C) No. 263/2018 pertains to a different cause of action and do not overlap each other, the subject matter is same i.e. construction of JNV school building along with the kitchen. Thereby, it is held that this case is indeed maintainable within the jurisdiction of this court. 48. The respondents have not denied that the petitioner has not completed his additional work. The last lap of the work was to be completed i.e., the dining and the kitchen was not constructed. As the petitioner has completed a major portion of the work, he is highly aggrieved as the respondents have forfeited the Earnest money. Moreover, the petitioner is directed to pay Rs. 2,18,60,493/-, purported to be the security deposit, equivalent to 10% of the tendered value including the expenditure purported to be incurred to complete the remaining unexecuted building. 49. The petitioner is aggrieved as he has incurred heavy financial loss. He has engaged labourers from Assam, Bihar and neighbouring states. Relating to the forfeiture of his earnest money and security guarantee, he has relied on the decision of the Hon’ble Supreme Court in Jai Durga Finvest Pvt. Ltd vs. The State of Haryana and Ors reported in 2004 (3) SCC 381 , wherein it has been held that:- “ 11. It is not in dispute that the grant of mining lease in favour of the appellant herein for the extraction of mineral sand by the respondents is governed by the provisions of the Punjab Minor Mineral Concession Rules, 1964. It is not in dispute that the grant of mining lease in favour of the appellant herein for the extraction of mineral sand by the respondents is governed by the provisions of the Punjab Minor Mineral Concession Rules, 1964. In terms of Rule 33 the bidder is required to execute a deed in Form 'L Clause 27 of the agreement in Form 'L’ obligates the respondents to comply with the request made in terms thereof. The Appellate Authority had not considered this aspect of the matter. The High Court also did not apply its mind in this behalf. The first question that arises is whether the respondents complied with their statutory obligations when the request was made by the appellant. If not, the second question would be the effect of non-compliance with the statutory obligation of the respondents which formed part of the contract insofar as they did not comply with the appellant's request as aforementioned which had a direct bearing on the right of the appellant to raise sand. The High Court as noticed hereinbefore, has merely proceeded on the basis that the appellant had entered into the contract with his eyes wide open, but, the same would not, in our opinion, mean that they were bound to pay the contract amount get its security amount forfeited, as also pay interest at the rate of 24 per cent although it could not, by reason of acts of omission d and commission on the part of the respondents, carry out the mining operation as per the terms of the agreement. 12. Whether in such a situation the doctrine of frustration will be invoked or not should have been considered by the High Court “ 50. I find force in the argument of the learned counsel for the petitioner that a random and exorbitant amount without projecting any evidence of expenses incurred and final adjustment qua the outstanding contract money, has been quoted by the respondents. 51. It is also submitted on behalf the petitioner that under Section 28 of the Indian CONTRACT ACT , 1872, the petitioner has a right to assail an agreement, even if he has signed the agreement with his eyes wide open. It is also argued that when vide letter dated 26.09.2011, the petitioner was informed that the A/A and E/S was revised from Rs. 937.36 Lacs to Rs. It is also argued that when vide letter dated 26.09.2011, the petitioner was informed that the A/A and E/S was revised from Rs. 937.36 Lacs to Rs. 1,310 Lacs, why were the petitioner’s bills considered according to rates of the year 2005. It was a fair revision to Rs. 1,310 Lacs after considering the inflation in the prices of goods and services, and the unforeseen contingencies including force majeure and owing to the insurgencies, broken bridge, flood situation etc., in the remote area of Tuensang, Chare. These unforeseen hindrances have not been specifically denied by the respondents. 52. It is further submitted that the respondent Nos. 1, 3 and 6 cannot shirk off their responsibility as the respondent Nos. 2, 4 and 5 have been operating on behalf of the respondent Nos. 1, 3 and 6 and the school building including other infrastructure was constructed for NVS and no other. It is submitted that the respondent Nos. 1, 3 and 6 are bound by section 226 of the Indian CONTRACT ACT . It is submitted that only the kitchen and the dining block are the two items which are awaiting completion. The school building was already complete and handed over to the respondents and the petitioner is aggrieved as he has received payment as per the old rate awarded in 2005 and not as per the letter dated 26.09.2011 i.e., revised rates of 2011. 53. Relating to revision of rates, the petitioner has relied on the decision of the Hon’ble Supreme Court in State of U.P. vs. Ramnath International Construction Pvt. Ltd. reported in 1996 (1) SCC 18 , wherein it has been held:- “8. Admittedly under the agreement the completion period of work was 28-2-1989. The stipulated quantity of work in respect of Item 13 was 57.000 cubic metres and in respect of Item 15 it was 3500 cubic metres In the course of execution of the contract, drawings and designs were changed as a result of which there was abnormal increase of the quantity of work and for such an increase of quantity of work when the contractor claimed a higher rate and gave the analysis before the arbitrator, which was not disputed by the State and the arbitrator accepted the rate, the court will not be justified in interfering with the same It is not possible for us to accept the contention of Mr. Sehgal that under the terms of the agreement the contractor was not entitled to claim any higher rate The arbitrator having considered all the relevant materials and there being no legal proposition which has formed the basis for acceptance of a higher rate and on the other hand the same being arrived at on account of the abnormal increase in the quantity of work which was on account of change of drawings and designs, the court will not be justified in interfering with the same The first contention of Mr. Sehgal, therefore, cannot be accepted.” 54. In the instant case too, owing to the unforeseen contingencies on account of flood situation, insurgency and disruption of connectivity and transport links due to collapse of the bridge, considering the old rates dating back at 2005 for works extending upto 2013 till termination, appears to be unjustified. Moreover, the inflation causing noticeable rise in prices of goods cannot be ignored at all. Through their objections and the submissions, the respondents have not rebutted the petitioner's claim that except the kitchen and the dining, the petitioner has completed the construction of the entire building and handed possession of the building to the school authorities. The respondents have also not rebutted insurgencies and inaccessible roads due to broken bridge connecting the school premises. 55. The contract was unilaterally terminated as alleged. There is not an iota of doubt that when the petitioner was awarded three more additional work and pursuant thereto, re-revised preliminary estimate for above work was revised vide letter dated 26.09.2011, from Rs. 937.36 Lacs to Rs. 1,310.93 Lacs. 56. At this juncture, it would be germane to reproduce the letter herein below verbatim:- The Re-Revised Preliminary Estimates for the above work submitted vide letter under reference has been examined and I am directed to convey Revised A/A & E/amounting to Rs.1310.93 Lacs (Rupees Thirteen Crores Ten lacs Ninety Three thousand only) against the revised A/A & E/S of Rs.937.36 lacs dated 16.05.2005 accorded by the Samiti earlier, as per the details given in annexure (Enclosed herewith). The Construction Agency is requested to complete the work in all respect within the revised sanctioned amount and stipulated period and submit the final settlement account in the prescribed proforma along with details. The expenditure is debitable under the centralized provision "Constn.Work (Plan)" 2011-12. This issues with the approval of Competent Authority, NVS, Hare. New Delhi. The Construction Agency is requested to complete the work in all respect within the revised sanctioned amount and stipulated period and submit the final settlement account in the prescribed proforma along with details. The expenditure is debitable under the centralized provision "Constn.Work (Plan)" 2011-12. This issues with the approval of Competent Authority, NVS, Hare. New Delhi. 57. Reverting back to this case, it is held that the respondents have not denied that the petitioner has completed the additional work and the only work that is left to be completed is the dining and the kitchen block, when his contract was terminated by the respondent. Petitioner was already paid his due for completion of his work along with the additional work apart from the dining and the kitchen block. The petitioner was paid according to the earlier rates of 2005. The undisputed amount of Rs.23,78,174/- (Rupees Twenty Three Lacs Seventy Eight Thousand One Hundred and Seventy Four) is yet to be paid. 58. I have considered the the submission about the hindrance of work owing to the insurgencies in the State of Nagaland and also due to the acute weather conditions and the noticeable rise of cost from 2005 onwards till at least 2011. 59. The petitioner has prayed to quash and set aside the impugned letter of termination dated 21.09.2020 and quash and set aside the letter dated 04.11.2020 as the petitioner is highly aggrieved by the respondents’ forfeiture of the petitioner’s Earnest money deposited along with the security deposit and performance guarantee under the contract. Moreover, the petitioner is also aggrieved by the letter dated 04.11.2020 marked as Annexure-33 of the petition as it is deducible from the letter that - “the full security deposit @ 10% is recoverable and is liable to be forfeited, Rs.29,15,823/- (Rupees Twenty Nine Lacs Fifteen Thousand Eight Hundred and Twenty Three) has already been recovered and the amount of Rs.13,59,389/- (Rupees Thirteen Lacs Fifty Nine Thousand Three Hundred and Eighty Nine) is withheld in the 9 th RA bill and forfeited as SD amount and, the petitioner has been directed to deposit an amount of Rs.84,977.70/- (Rupees Eighty Four Thousand Nine Hundred Seventy Seven and Seventy Paisa) as shortfall in recoverable security to be deposited within 15 (Fifteen) days from the issuance of the letter dated 04.11.2020.” 60. It is apt to mention at this juncture that without evidence of a breakdown of the expenses incurred and the payments received, the outstanding or surplus amount, an order to set aside the letters dated 21.09.2020 (Annexure-27) and 04.11.2020 (Annexure-33) is unjustifiable. 61. Without evidence relating to the expenses and outstanding amount or surplus amount of the contract work completed as well as contract work incomplete, this Court cannot pass an order, affecting the parties. 62. I have also relied on the decision Hon’ble Supreme Court in State of U.P. vs. Ramnath International Construction Pvt. Ltd. (Supra). 63. In the light of the decision of the Hon’ble Supreme Court, the respondent Nos. 2, 4 and 5 i.e., the RITES in consultation with the respondent Nos. 1, 3 and 6 are hereby directed to (i) accept the remainder of the bills and expenses of the petitioner as per the rates of 2011 and consider payments of the same if any payment is due; (ii) the petitioner has contended that there is an undisputed bill yet to be settled for payment of Rs.23,78,174/- (Rupees Twenty Three Lacs Seventy Eight Thousand One Hundred and Seventy Four) as per the unrevised old 2005 schedule of rates. This may also be taken up by the respondents for consideration of payment (this bill was countersigned by the petitioner in the Measurement Book on 01.05.2014). 64. As has already been held in my foregoing discussions that vide letter dated 26.09.2011, the rates were re-revised from Rs.937.36 Lacs to Rs.1310.93 Lacs and, as the respondents’ argument that this is not revised rate, but a sanction, holds no water, the revocation letter dated 07.04.2017 and the impugned supplementary agreement dated 11.04.2017 is not required to be partially set aside, as prayed for by the petitioner. 65. This Court is not inclined to allow the petitioner to execute the remaining 25% of the work awarded vide LOA dated 20.05.2005 under the existing CPWD rate or to quash and set aside the impugned letter of termination dated 21.09.2020 (Annexure-27) and letter dated 04.11.2020 (Annexure-33). 66. In terms of the above observation, this petition stands disposed of. 67. No order as to costs.