Maytas Infra Limited Vs. Utility Energytech and Engineers Pvt. Ltd. and ors. - Court Judgment

Excerpt:
- maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police patil is appointed. to give meaning to these powers beyond the scope of the duties would be an approach not quite permissible in law. the duties, functions and powers of the police patil under the provisions of the village police act do not vest him with the powers which are vested in police officer under the provisions of the criminal procedure code. the powers given to him under the village police act are limited in their nature and scope and are not as wide specific and consequential as the powers of a police officer under the provisions of the criminal procedure code. the police patil is to act unlike a police officer under the orders of the district magistrate and has to report the matters to him and even where he makes some inquiry or investigation, he is expected to submit report to the station officer and has not been empowered to take any further action, like preparation of a charge sheet or its presentation before the court of competent jurisdiction. he is vested with no powers in regard to the powers vested in an investigating officer under the provisions of section 173 of the criminal procedure code. the act does not contain any deeming provision which by fiction of law would term a police patil as a police officer. it could be possible that an act may specifically stipulate that a police patil for all intent and purpose shall be deemed to be a police officer under the provisions of the village police act and/or the criminal procedure code. in the absence of such a deeming fiction of law, it is difficult to confer the status of a police officer in law upon a police patil or accept the contention that the police patil is clothed with the powers and functions of a police officer. neither there is any specific provisions in the act not on principle of implied interpretation it can be said that provisions of the act suggest that the police patil is a police officer in law. his duties, functions and powers are not identical or even closely identical to the powers of a police officer under the provisions of the criminal procedure code. - however, inspite of various discussion and negotiation talk, they failed to settle the same. once in a commercial contract like this, a party takes decision based upon the commercial wisdom and material available with them, and terminating the contract, the court cannot compel such party to allow the other party to continue with the work/project. failure to settle the matter inspite of their joint meetings which took place after the basic letter dated 31.03.2009 issued by the petitioner;anoop v. mohta, j.1. heard for urgent ad-interim relief.2. the petitioner has invoked section 9 of the arbitration and conciliation act, 1996 (for short, 'the arbitration act') and basically seeking an interim relief of injunction against the respondents to give effect and acting in any manner upon the termination letter dated 13.04.2009.3. the national highway authority of india awarded contract on 19.07.2007 to construct and maintain on build, operate and transfer basis to su toll road private limited (concessionaire). the respondents have been awarded the work of engineering procurement and construction of the portion of the project highway in question by agreement dated 31.01.2008 by concessionaire on a fixed price lump sum turkey basis,. the respondents entered into the construction agreement on 19.02.2008 for portion/phase of the project in question.4. admittedly, the respondents have terminated the construction contract dated 19th february, 2008. the agreement is between the petitioner, who is sub-contractor of the respondents. admittedly, the respondents are not the owner of the land. the contract in question was for the construction of existing carriageway of about 62 km., on salem national highway (nh 68) in the state of tamil nadu. it is the national highway authority of india's project.5. there are various disputes and differences arose between the parties with regard to the delay in handing over of land and re wall and other related aspects. it is not the case that the full proposed road land is available with the respondents and still they are not providing it. the availability of the land is based upon various other contingencies which are not within the control of the respondents also.6. admittedly, the parties have exchanged correspondences and letters to see and settle the disputes. however, inspite of various discussion and negotiation talk, they failed to settle the same.7. on earlier occasion, the petitioner has invoked section 9 of the act by arbitration petition (lodging) no. 366/2009 whereby prayer was made to restrain the same respondents from encashing the bank guarantees which was executed by the parties based upon the agreement itself.8. this court on 29.04.2009, by noting the termination letter read with the clauses of the agreements and letters observed as under:13. there are allegations and counter allegations. both the parties are blaming each other for their respective defaults. the facts on record shows that there is a clear contract termination notice though replied by the petitioner yet at this stage, the merit or de-merit of the differences and disputes cannot be gone into in detail, which is a matter of detailed enquiry before the arbitral tribunal.17. in a commercial contract of this nature, it is the concerned party who should decide and take appropriate action or decision. whether the action of the respondent is right or wrong in the absence of clinching material, it is difficult for the court to decide in favour of the aggrieved party, at such interlocutory stage. this is again a matter of trial and discussion.18. the petitioner, after receipt of the termination notice, has replied the same by notice dated 27.04.2009 and basically re-iterated their submissions and their case as already referred in their notice dated 31.03.2009. both these notices show that there are various disputed facts and submissions raised based upon the material available with both the parties. it also means that there is serious dispute about the various facets covering the delay in handing over the land, plan, drawings, maps and about other requisite details. the reason for termination based upon the agreement between the parties and the material available with respondent no. 1 including their assessment based upon various admitted position on record, which includes the invocation of force majeure clause under clause 43.1(a), the recession in the market, the respondents assessment of capacity or ability of the petitioner to complete the project within time, need detail trial, to justify their termination of the contract. the fact that the parties unable to settle or resolve the differences inspite of meeting dated 2.4.2009 is also a relevant factor.9. the petitioner, by this petition, has now challenged the termination notice on merit. the situation or circumstances are not changed except that the petitioner has filed and relied on more than a hundred letters/documents to justify respective defaults. the question is whether the petitioner is entitled for the injunction as prayed. once in a commercial contract like this, a party takes decision based upon the commercial wisdom and material available with them, and terminating the contract, the court cannot compel such party to allow the other party to continue with the work/project. in the present case, admittedly, the respondents are not owner of the land and the petitioner is sub-contractor. it is a public project. admittedly, out of 62 k.m. proposed road land only about 4 kms. land could be provided at different area. there are serious disputes going on between the parties. therefore, merely because there is a construction contract entered into between the parties, the petitioner is not entitled to specific performance of the contract in view of section 14 of the specific performance act, 1963 automatically. even otherwise, on a foundation that there are admitted breaches committed by the respondent and, therefore, there is a case made out for interim injunction, which, in my view, is not sustainable for simple reason that in case of such public project based upon the material available the respondents have taken the decision to terminate and now to grant any interim order, at this stage, practically amounts to overlooking the termination notice dated 13.04.2009 itself.10. the effect of invoking force majeure clause 43.1 and respective interpretations of various clauses of the agreement/contracts; failure to settle the matter inspite of their joint meetings which took place after the basic letter dated 31.03.2009 issued by the petitioner; the inability expressed even by the petitioner to complete the project; the capacity and capability of the petitioner to perform & complete the contract/project as per the respondent; unless all these facets are decided finally, i see there is no balance of convenience or equity lies in such type of matter to grant any interim relief as claimed. the commercial decision of the respondents in no way can be tested at this stage in view of rival material on the record. all this needs detail inquiry and trial.11. the court cannot compel the respondents to continue with the contract. it is difficult for the court even to supervise such performance of contract, based upon such type of public project, i see there is no material and reason to grant interim injunction as sought by invoking section 9 of the act.12. the facet and importance of completion of the project within stipulated time and which is also subject to the agreement of the respondents with others, just cannot be overlooked. for whatever may be the reason, admittedly the construction project is not yet commenced in full force, in the sense that out of 62 kms. of proposed road land, about 4 km. land could be provided, as alleged. the case of the respondent is that about 19 kms of land has been handed over to the petitioner.13. even otherwise, if, according to the petitioner, the respondent has terminated the contract illegally and in breach of the various clauses of the agreement, that can be considered by the arbitral tribunal which is likely to be constituted. the petitioner has already nominated an arbitrator. in such cases where compensation/damages is also an aspect which the court/tribunal need to consider while considering to grant any injunction as sought in the present matter, i am inclined to observe that a remedy of compensation/damages is available to he petitioner, but not the relief of injunction as prayed.14. resultantly, ad-interim relief as prayed is rejected.15. s.o. to 17th june, 2009.