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A notice to terminate the contract cannot be issued unilaterally by one party without the adjudication of the Court: Jharkhand High Court

Case title – M/s Aditya and Rashmi Construction Pvt. Ltd. VS The State of Jharkhand & Ors

Case no. – W.P. (C) No. 2924 of 2014

Decision on – February 27, 2024

Quoram – Justice Rongon Mukhopadhyay & Justice Deepak Roshan

Facts of the case

The Petitioner, M/s Aditya and Rashmi Construction Pvt. Ltd, a Private Limited Company, participated in a tender process floated by the respondent-authorities for construction of a High-Level Bridge over Mayurkola River at 17 Km. The petitioner being the successful bidder was awarded the contract of Rs.3,00,36,287/- and the time for completion was 13 months. The Parties entered into an agreement for the same.

The Petitioner’s work got delayed due to non-acquisition of land and non-payment of compensation by the respondents. Despite, several representations to the authorities to remove such hindrances and facilitate the construction work, there was no action taken by the respondents.

Although an extension of time was granted to the Petitioner upon its application, the same was contradicted by serving a show cause notice on the potential termination of the contract and blacklisting. The Petitioner responded to the notice, but however, the contract was terminated. Further, the authorities issued an order to recover an amount of Rs. 1,04,33,493/- on the ground of fundamental breach, negligence and slow progress in the work allotted to the petitioner. Subsequently, a writ petition was filed by the Petitioner before the High Court.

Submission on behalf of the Petitioner

The Counsel appearing for the Petitioner submitted that termination of the contract issued by the respondent is in gross violation of the principle of natural justice. Moreover, though a show cause notice was issued to the petitioner, no personal hearing was given prior to such termination.

He further, submitted that the delay in the construction work is due to the lethargic attitude of the respondents in acquiring the land and thus, contended that the petitioner was not at any default.

The Counsel submitted that the respondent-authorities have unilaterally terminated the contract and issued a certificate case for realization of the damages. Further, there was also no adjudication on this matter to fix the quantum of damages.

Submission on behalf of the Respondent

The Counsel highlighted clause 49 of the SBD Agreement, which outlines that the obligation of the contractor to pay liquidated damages to the employer on account of failure of completion of the work allotted within the intended completion or on account of the fundamental breach of the contract by the contractor.

The Counsel argued that attributing project failure solely to the respondent authorities, emphasizing that the lack of land acquisition during a specific period cannot solely be deemed to be the fault of the respondent.

Court’s Analysis and Judgement

The Court noted that the construction of Bridge was not possible without the complete acquisition of the land. The Court observed that the show cause notice to terminate the contract was issued immediately after the authorities granted a time extension for the Construction. Moreover, the authorities proceeded without providing the petitioner an opportunity to be heard before the termination.

The Court asserted that the mere acquisition of the land without extending the compensation to the land holders would automatically lead to disruption in the construction process.

The Court after the perusal of the facts pointed to arbitrary action by the authorities in terminating the contract wand imposing Rs. 1,04,33,493/- as liquidated damages instead of closing the contract or refunding of the security deposit.

The Court relied upon the decisions in State of Karnataka vs Shree Rameshwara Rice Mills, J.G. Engineers Private Limited vs Union of India and Another, and Inox Air Products Limited vs Steel Authority of India Limited, which emphasized that whether either party breached the contract terms must be adjudicated by a Court or Tribunal, and cannot be unilaterally decided by one party.

The Court held that despite repeated representations by the petitioner the respondent-authorities failed to provide any response in that regard. Therefore, the Court allowed the writ petition and quashed the order terminating the contract and demanding the liquidated damages.

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Judgement Reviewed by – Keerthi K

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Additional compensation would not be granted in cases where the limitation period has barred and when an alternative remedy is available – Bombay HC

TITLE : Sardar v The state of Maharashtra

CORAM : Hon’ble Justice Ravindra v Ghuge

DATE :  15th  January 2024

CITATION : WP No. 14842 Of 2023

FACTS

The petition was filed under Article 226 and 227 of the constitution of India. The petitioner’s case was that his land was acquired by the government for public project under Section 4 of the Land acquisition Act,1894. A compensation of Rs. 1,26,110 was granted and it did not consider the value of 40 teak trees, 25 mango trees, 35 berry trees and 2 gooseberry trees and a well attached to the land. The petitioner has asked for an enhancement of compensation. It was contended that the petitioner had not used alternative remedies under Section18 of the Act. The petitioners father has received the compensation of Rs. 1,45, 566 without any protest.

LAWS INVOLVED

As per Section 18 of the Act, any person who has not accepted the compensation to make an application to the collector within a period of 6 weeks from the date of the award, if the interested person represented before the collector was present of in any other cases, within 6 months of the award.

ISSUES

Whether the petitioner entitled to additional compensation?

JUDGEMENT

The court held that the petitioner’s father has already received the compensation without any protest. The court found that no reference was made under Section 18 of the Act. The court in furtherance held that the petitioner has approached this court after 18 years withtout availaing alternative remedy available in law.

The writ was found to be without any merits and was subsequently dismissed.

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Written by- Sanjana Ravichandran

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The Bombay HC Allows The Appeal Partially Regarding The Tribunal’s Order Of The Compensation Amount

TITLE: National Insurance Co. Ltd. Vs Mrs. Lauretta Shashin Mogale And Ors.

CORAM: Hon’ble Justice Shivekumar Dige

DATE:  8th December, 2023.

CITATION: First Appeal No.1067 Of 2018

FACTS

On 26th July 2011, deceased Shashin Mogale was proceeding in his car bearing No. MH-14-CK-7387, he was on the way to his house. At that time, at about 1.55 am., a tanker bearing registration No.KA-01-C/2284 came from the opposite direction in rash and negligent manner and gave dash to the car of the deceased. Respondent No.4 was driving the said tanker. The deceased was admitted in the hospital but he succumbed to injuries. On the basis of evidence on record, the Tribunal has considered the salary of deceased at Rs.98700/- per month including arrears.

This appeal is preferred by the appellant-Insurance Company against the judgment and award passed by Motor Accident Claims Tribunal, Pune. The claimants have filed cross-objection for enhancement of compensation. It is the contention of learned counsel for the appellant that while calculating compensation, the Tribunal has considered arrears of salary of the deceased and, on that basis, compensation is awarded, which is not proper. Learned counsel further submitted that the accident occurred due to contributory negligence of the deceased. In the post- mortem report, it is mentioned that there was smell of alcohol. It shows that deceased was under the influence of liquor but this fact is not considered by the Tribunal.

It is the contention of learned counsel for respondent Nos.1 to 3/claimants that the Tribunal has deducted 30% future prospects as income tax, which is not proper. Learned counsel further submitted that consortium amount is not properly awarded, it be awarded. The Chemical Analysis Report is received after the conclusion of the trial. It is produced on record, it does not show that at the time of accident deceased was under the influence of liquor.

LAWS INVOLVED:

304A Of Indian Penal Code:  Causing Death By Negligence.

Workmen’s Compensation Act 1923

ISSUES:

  1. Whether there is a case of Contributary Negligence?
  2. Whether the compensation amount decide by the Tribunal was valid or not?

JUDGEMENT:

The Appeal is partly allowed as the Court has deducted arrears amount from salary of deceased as well as some allowance amount from the salary. The cross-objection is partly allowed. The claimants are entitled for enhanced amount of Rs. 1671227/- @ 7.5% interest per annum from the date of filing of claim petition till realisation of the amount. Out of this amount, Rs.1,80,000/- is consortium amount, the claimants are entitled for interest on this amount at 7.5% from 1st November 2017 till realisation of the same.

The appellant-Insurance Company shall deposit the enhanced amount along with accrued interest thereon within 8 weeks after the receipt of this order.

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Written by- Sanjana Ravichandran

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Compensation arising out of motor vehicle accident should be proportionate to the income of the deceased : Bombay HC

TITLE : The Divisional Controller, NEKSRTC v Smt. Sushila

CITATION : First Appeal No. 1180 of 2011

CORAM : Hon’ble justice Smt.Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase

DATE:  7th December, 2023

INTRODUCTION :

 The appeal is based on the judgement and award given by the Motor Accident claims Tribunal on 2011

FACTS :

A shrimant died in a car accident while his two wheeler was dashed by a KSRTC bus. It was alleged that the driver of the bus was negligent and rash along with being inexperienced. This incident took place in 2007. The respondent filed written statement and denied all the allegations. It has been contended that the claimants in collusion with police registered a false case against a driver of the respondent. According to the respondent, the deceased himself had lost the control over his vehicle as he was driving it recklessly and wanted to avoid a collision with jeep coming from opposite direction. The motor Accident claims held the respondent liable and ordered the respondent to pay Rs. 21,05,000 with 7.5% interest per annum. The appellant has appealed on the ground that the compensation is not enough considering the face that the deceased had an income of Rs.2,00,000 per month.

COURT’S ANALYSIS

The court held in the affirmative that the driver and the respondent is vicariously liable to pay compensation. The provisions in respect of Section 166 of the Motor Vehicles Act and other Sections are benevolent provisions and it is settled principle of law that, in such cases the Tribunal is bound to grant just compensation. It was found by the court and the tribunal that the monthly income of the deceased according to Income tax returns filed was Rs.1,48,920 only. The court dismissed the order and findings of the Tribunal and allowed the party to deserve more compensation.

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Written by- Sanjana Ravichandran

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Penalty Is Supposed To Be @ 1% Of The Cost Of Incomplete Work Per Week Of Delay Subject To Maximum Of 10 % Of The Total Cost Of Contract: High Court Of Delhi

Title: National Projects Constructions Corporation Ltd. (Npcc) V M/S Aac India Pvt. Ltd

Citation: Fao (Comm) 140/2021

Coram: Hon’ble Mr. Justice Yashwant Varma And Hon’ble Mr. Justice Dharmesh Sharma

Decided On: November 02, 2023

Introduction:

This Judgment shall decide the present appeal preferred by the appellant under Section 37 of the Arbitration and Conciliation Act, 1996 read with Section 13(1A) of the Commercial Courts Act, 2015 for setting aside the impugned judgment dated 12 March 2021 passed by learned Additional District Judge-03, South District, Saket Courts, New Delhi  in ARBTN No.20824/2016, whereby the learned ADJ chose to partially set aside the award dated 29 August 2016 on the aspect of liquidated damages  to be paid by the appellant to the respondent.

Facts:

The appellant, which is a Government Enterprise under the Ministry of Water Resources and also a company registered under the Companies Act, 1956 consequent to letter of intent dated 03 March 2017 entered into an agreement dated 13 March 2007 as Project Management Consultant of the Central Reserve Police Force with the respondent, which was a micro enterprise stated to be having a turnover of less than Rs. 10 Lacs, for installation of Fire Protection System for the Auditorium Block, CRPF Campus, Vasant Kunj, New Delhi. The project was stipulated to be completed within a period of 7 months from the date of issuance of LOI for total contract value of Rs. 90,79,200/-. However, performance got delayed.

appellant claimed that the respondent was in breach of its obligations under the contract and delayed its performance by taking about 33 months for completion of work, and therefore, in terms of clause 35.5 of the contract, LD was levied and adjusted against the payment payable to the respondent not only for the abnormal delay but also for causing damage to the reputation of the appellant for the delay caused; and accordingly payment for a sum of Rs. 1,13,97,341/- i.e., 10% of the work cost of the CRPF camp project was withheld. The respondent in terms of clause 52 of the ̳General Conditions‘ of the contract invoked arbitration.

The award was challenged by the respondent/claimant under Section 34 of the A&C Act and the learned ADJ vide the impugned judgment dated 12 March 2021 considered the proposition of law propounded in ONGC Ltd. v. Saw Pipes Ltd. And several other cases.

The impugned award is assailed in the present appeal before this Court inter alia on the grounds that the learned ADJ completely misconstrued the letter dated 09 October 2009 on the record and placed an erroneous construction on the provisions of the contract; and that despite concluding that there was delay on the part of the claimant/respondent in completing the project, contradicted itself by not allowing imposition of LD and rather modified the award, which course has no sanction in law.

Court’s Analysis and Judgement:

The court decided that liquidated damages and penalty were stipulated to be @ 1% of the cost of incomplete work per week of delay subject to maximum of 10 % of the total cost of contract value and it was stipulated that LD may be adjusted and set off against any sum payable to the Contractor/NPCC. It is also manifest that the contract stipulated payment by CRPF to the appellant alone. The appellant was enjoined upon to verify the bills towards the work done received from the sub-contractors. As an inevitable corollary, on imposition of LD, the appellant was well within its rights to withhold 10% of the contract value in such proportion from each of the sub-contractors including the claimant/respondent.

There are a catena of cases on the proposition that where damage or loss is difficult or impossible to prove, the Court is empowered to award liquidated amount stipulated in the contract, if it is a genuine pre-estimate of damage or loss, or reasonable compensation for the said amount loss or damage. So there was no ̳patent illegality‘ committed by the Arbitrator in passing the impugned award and the award could not have been modified by the learned ADJ in exercise of his powers under Section 34 of the A&C Act.

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Written by- Sushant Kumar Sharma

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