1 WPC No. 3261 of 2025 2025:CGHC:28384-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 3261 of 2025 M/s Barbrik Project Limited Through Its Director, Sourabh Agrawal S/o Shri Ramesh Kumar Agrawal Aged About 49 Years, R/o A-24 Ashoka Millennium Ring Road No.01, Near Rajendra Nagar, Raipur Chhattisgarh, ... Petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Public Works Department Mahanadi Bhawan, Naya Raipur District - Raipur (C.G.) 2 - Engineer In Chief, Public Works Department Nirman Bhawan North Block Sector - 19, Atal Nagar, Raipur District - Raipur (C.G.) 3 - Project Director (Asian Development Bank Project) Chhattisgarh Road Connectivity Project (CRCP), Public Works Department Sirpur Bhawan Raipur District - Raipur (C.G.) 4 - Project Manager (Asian Development Bank Project) Chhattisgarh Road Connectivity Project (CRCP), Public Works Department Bilaspur (C.G.) ... Respondents (Cause title is taken from CIS) SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.06.28 11:40:53 +0530 2 WPC No. 3261 of 2025 For Petitioner : Mr. Jitendra Pali, Advocate. For Respondents/ State : Mr. Prafull Bharat, Advocate General alongwith Mr. Sangharsh Pandey, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 27.06.2025 1. Heard Mr. Jitendra Pali, learned counsel for the petitioner. Also heard Mr. Prafull Bharat, learned Advocate General alongwith Mr. Sangharsh Pandey, learned Govt. Advocate for the respondents/ State. 2. By way of this petition, the petitioner has prayed for the following reliefs:- “i. That the impugned notice/communication dated 02.06.2025 issued by respondent no. 3, directing the petitioner to deposit Rs.12 Crores and threatening encashment of the bank guarantee furnished towards mobilization and machinery, may kindly be quashed for being illegal and arbitrary; and the respondents may kindly be restrained from taking any coercive action including encashment of the said bank guarantee. ii. That the respondent authorities may kindly be directed to settle and release all undisputed pending dues of the petitioner, including outstanding amounts of working bills, GST reimbursements, retention money, and other admissible payments, and to issue a formal closure order, followed by a final settlement of accounts in 3 WPC No. 3261 of 2025 accordance with the terms of the contract. iii. Any other relief or direction which this Hon’ble Court deem just, proper and equitable in the facts and circumstances of the case, including the cost of this petition, may also kindly be granted in favour of the petitioner.” 3. (i) The petitioner company has preferred this petition challenging the order/communication issued by respondent no. 3, the Project Director (Asian Development Bank Project), Chhattisgarh Road Connectivity Project (CRCP), whereby the petitioner has been directed to deposit an amount of Rs.12 Crores towards the advance provided for mobilization and machinery. It has been further stated that in the event of failure to deposit the said amount, the bank guarantee furnished by the petitioner to the tune of Rs. 12 Crores shall be encashed. The petitioner was awarded the work order under the Asian Development Bank- financed Chhattisgarh Road Connectivity Project (CRCP) for rehabilitation and upgradation of roads under Package No. 19, valued at over Rs.120 Crores. Although the petitioner complied with all its obligations and commenced work, the respondents failed to provide complete encumbrance-free land as required under Clause 2.1 of the terms and conditions, resulting in substantial delays not attributable to the petitioner. (ii) Despite repeated reminders, the necessary clearances, land possession, and removal of hindrances such as utility shifting, 4 WPC No. 3261 of 2025 tree cutting, and encroachments were not provided in time. Owing to the delays caused entirely by the respondents, the petitioner submitted multiple revised work programmes and sought time extensions, which were approved on three occasions. However, the work could not progress due to continued inaction by the respondents. Meanwhile, the petitioner incurred significant financial losses due to the deployment of manpower, machinery, and material on-site. Till date the respondents have not issued any formal communication indicating the closure or termination of the project. However, they have failed to clear dues including working bills (Rs. 5-6 Crores approx.), GST reimbursement, retention money, and claims raised under Clause 20.1 amounting to Rs. 48 Crores. In the absence of final settlement, and without adjudicating the petitioner's claims, the impugned notice dated 02.06.2025 seeking recovery through bank guarantee encashment is wholly illegal, arbitrary, and violative of natural justice. Accordingly, the petitioner prays for quashing of the said notice, release of pending undisputed dues, and appropriate directions to the respondents to finalize settlement only after due closure and adjudication in accordance with law. 4. Learned counsel for the petitioner submits that vide impugned communication dated 02.06.2025 directing the petitioner to deposit Rs.12 Crores towards mobilization and machinery 5 WPC No. 3261 of 2025 advance, failing which the bank guarantee furnished by the petitioner would be encashed, no prior notice, opportunity of hearing, or show cause was provided to the petitioner before initiating such coercive action. He submits that the petitioner has demonstrated continuous diligence and good faith in executing the contract, it clearly establishes that the petitioner was always willing, ready, and capable of executing the work, but was obstructed due to non-availability of land, delay in utility shifting, forest clearance, tree cutting permissions, and encroachment removal, all of which were squarely within the domain and responsibility of the respondent authorities. (ii) Learned counsel further submits that the respondent authorities cannot now seek to recover mobilization advance by encashing the bank guarantee, without first clearing all pending dues and issuing a formal closure order. The attempt to encash the bank guarantee without first finalizing the petitioner's dues or settling the final bill is arbitrary and amounts to unjust enrichment by the State. In such circumstances, initiating recovery through invocation of the bank guarantee without any due closure formalities, settlement process, or adjudication of pending claims is contrary to the principles of fair procedure and due process. In absence of any statutory or alternative efficacious remedy, the petitioner is left with no option but to invoke the writ jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India, 6 WPC No. 3261 of 2025 to protect its legal and contractual rights and to prevent manifest injustice, irreparable harm, and unlawful deprivation of its financial entitlements. 5. On the other hand, learned counsel for the respondents opposes the submissions made by the learned counsel for the petitioner and submits that the petitioner without availing the alternative remedy as per the conditions of the contract agreement executed between the parties, approached this Court by filing this writ petition. 6. We have heard learned counsel for the parties and perused the impugned order and other documents appended with the writ petition. 7. There is an amicable settlement clause No. 20.5 and arbitration clause No. 20.6 mentioned in the contract agreement executed between the parties for settlement of disputes through arbitration, which reads as under :- 20.5 Amicable Settlement : Where a Notice of Dissatisfaction has been given under Sub-Clause 20.4, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, the Party giving a Notice of Dissatisfaction in accordance with Sub-Clause 20.4 above should move to commence arbitration after the fifty-sixth day from the day on which a Notice of Dissatisfaction was given, even 7 WPC No. 3261 of 2025 if no attempt at an amicable settlement has been made. 20.6 Arbitration : Any dispute between the Parties arising out of or in connection with the Contract not settled amicably in accordance with Sub-Clause 20.5 above and in respect of which the DB's decision (if any) has not become final and binding shall be finally settled by arbitration, Arbitration shall be conducted as follows: (a) if the Contract is with foreign contractors: (i) for contracts financed by all participating Banks except under sub-paragraph (a)(ii) below: international arbitration (1) with proceedings administered by the arbitration institution designated in the Contract Data, and conducted under the rules of arbitration of such institution; or, if so specified in the Contract Data, (2) international arbitration in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL); or (3) if neither an arbitration institution nor UNCITRAL arbitration rules are specified in the Contract Data, with proceedings administered by the International Chamber of Commerce (ICC) and conducted under the ICC Rules of Arbitration, by one or more arbitrators appointed in accordance with said arbitration rules. (ii) for contracts financed by the Asian Development Bank: 8 WPC No. 3261 of 2025 international arbitration (1) with proceedings administered by the arbitration institution specified in the Contract Data and conducted under the rules of arbitration of such institution unless it is specified in the Contract Data that the arbitration shall be conducted under the rules of the United Nations Commission on international Trade Law (UNCITRAL) and if UNCITRAL Rules are so specified then the named arbitration institution shall be the appointing authority and shall administer the arbitration); or (2) if an arbitration institution is not specified in the Contract Data, with proceedings administered by the Singapore International Arbitration Centre (SIAC) and conducted under the SIAC Rules, by one or more arbitrators appointed in accordance with the said arbitration rules. (b) if the Contract is with domestic contractors, arbitration with proceedings conducted in accordance with the laws of the Employer's country. The place of arbitration shall be the neutral location specified in the Contract Data, and the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 (Law and Language]. The arbitrators snail have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DB relevant to the dispute. Nothing shall disqualify representatives of the Parties and Engineer from being 9 WPC No. 3261 of 2025 called as a witness and giving evidence before the arbitrators any matter whatsoever relevant to the dispute. Neither Party shall be limited in the proceedings before the arbitrators to the evidence or arguments previously put before the DB to obtain its decision, or to the reasons for dissatisfaction given in its Notice of Dissatisfaction. Any decision of the DB shall be admissible in evidence in the arbitration. Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DB shall not be altered by reason of any arbitration being conducted during the progress of the works.” 8. From perusal of the above amicable settlement clause and the arbitration clause, it appears that the petitioner has an alternate remedy available under the arbitration clause mentioned in the agreement executed between the petitioner and the respondents. Despite the said fact without availing the alternative remedy, the petitioner straightaway approached this Court by filing the instant petition. 9. Considering the submissions advanced by learned counsel for the parties, further considering the amicable settlement clause and the arbitration clause of the agreement executed between the parties, we do not find any good ground to entertain this writ petition. 10 WPC No. 3261 of 2025 10. Accordingly, the writ petition is dismissed at the motion stage itself. However, liberty is reserved in favour of the petitioner to take recourse to other alternate remedies as may be available to him under the law, if so advised. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice S.Bhilwar/ Jyoti