MISRA AND COMPANY Vs. HINDUSTAN AERONAUTICS LTD

JUDGEMENT

(1.) This Civil Revision arises out of an order of the learned Subordinate Judge, Jeypore refusing the prayer of the petitioner to restrain the opposite parties Nos.1 and 2 from executing the balance portion of the work left unexecuted by the petitioner.

(2.) Petitioner is a works contractor. He entered into an agreement with opposite party No.1 to make some constructions. While the petitioner was executing the work, opposite party No.1 issued notice to him that the agreement with him had come to an end with effect from 1-12-1984. The dispute arising out of the said action of the opposite party No.1 was referred to the Deputy General Manager (opposite party No.3) by the General Manager (opposite party No.2), as required under the arbitration clause in the agreement. Apprehending that there would not be a fair settlement of the dispute by the opposite party No.3, petitioner filed an application for removal of the Arbitrator on the ground of the interestedness. The trial Court removed the Arbitrator and appointed Mr. N. K. Das, a retired Judge of this Court as Arbitrator. The opposite parties Nos.1 and 2 have filed Civil Revisions challenging the said order in this court which are pending disposal. When the matter was thus pending, the petitioner filed an application in the Court of the learned Subordinate Judge, Jeypore for restraining the opposite parties Nos.1 and 2, which is the subject-matter of this Civil Revision.

(3.) The only point submitted by Mr.R.K. Mohapatra the learned counsel for the petitioner is that the learned Subordinate Judge has failed to consider the irreparable injury that would be caused to the petitioner in case the balance of the work left out is executed through other contractors. Mr. Mohapatra submitted that the petitioner shall have no objection in case the balance work is executed departmentally through its officers by the opposite party No.1. In support of the submission, Mr. Mohapatra has placed before me the letter under which opposite party No.1 intimated the petitioner that with effect from 1-12-1984 the contract between the parties did not subsist. According to Mr.Mohapatra, this action of the opposite party No.1 is the subject-matter of arbitration. Even if it is assumed that the action of the opposite parties Nos.1 and 2 would be justified, the cancellation as intimated in the letter would fall within the scope of Cl.46 of the agreement which authorises the execution of the balance work departmentally and in that case, petitioner would be liable only for the cost of materials, labour and charges for superintendence. In case the balance work is executed through other contractors, as envisaged under Cl.17 of the special conditions, the liability of the petitioner would be much higher. The further contention of Mr. Mohapatra is that the real expenditure would not be ascertainable in case the balance work is executed by other contractors as per Cl.17 of the special conditions. Mr. Y.S.N. Murty, the learned counsel for the opposite parties Nos.1 and 2 has seriously contested the submissions of Mr. Mohapatra and submitted that the action of cancellation of the agreement would squarely come within the scope of Cl.17 of the special conditions of contract and execution of the balance work through contractors would be justified and on account of the special skill necessary, the work cannot be executed through departmental officers. The further contention of Mr. Murty is that the entire objection of the petitioner can be decided by the Arbitrator and there will be no irreparable injury to the petitioner. Rather the balance of convenience is in refusing injunction than granting the prayer.