Page No.# 1/5 GAHC010020672019 2025:GAU-AS:7410 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/743/2019 M/S. BISHNU PADA PAUL AND ANR. VILL AND P.O- MADHURA, DIST- CACHAR, ASSAM, PIN- 788030 (REP. BY THE PROP SRI BISHNU PADA PAUL) 2: BISHNU PADA PAUL S/O- LATE UMESH CH PAUL R/O- VILL AND P.O- MADHURA DIST- CACHAR ASSAM VERSUS THE UNION OF INDIA AND 4 ORS REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF DEFENCE, 331B WINGS SENA BHAWAN, NEW DELHI- 110011 2:THE DIRECTOR GENERAL BRO SEEMA SADAK BHAWAN RING ROAD DELHI CANTT DELHI- 110010 3:THE CHIEF ENGINEER PROJECT PUSHPAK BRO C/O- 99 APO PIN- 93711 COMMANDER BRTF TASK FORCE OFFICE C/O- 99 APO PIN- 93171 Advocate for the Petitioner : MR B SINHA, MR. P SARMAH,MR. S UPADHAY,MR. M GOGOI Advocate for the Respondent : ASSTT.S.G.I., MS. B SARMA (C.G.C.) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 06.06.2025 1. Heard Mr. B. Sinha, learned counsel for the petitioner and Ms. B. Sarma, learned CGC for all the respondents. 2. The petitioner has prayed for a direction to be issued to the respondents, to release and make payment of the bills in relation to the following work orders:- 4 Sl. No. Work order Amount 1. Work order No.8093/CDR 24TF- 06/2016-17 dated 13.01.2017 Rs.14,22,340/- 2. Work order No.8092/CDR 24TF- 05/2016-17 dated 13.01.2017 Rs. 19,88,010/- 3. Work order No.8091/CDR 24TF- 04/2016-17 dated 13.01.2017 Rs. 33,95,400/- 4. Work order No.8094/CDR 24TF- 07/2016-17 dated 31.01.2017 Rs.20,20,730/- 5. Work order No.81851/765 TF/Vol- II/24/E8 dated 16.05.2017 Rs.1,03,56,690/- Page No.# 3/5 3. The affidavit-in-opposition filed by the respondent Nos.1-4 is to the effect that despite issuance of several notices to the petitioner for completing the work, only 52.58% supply has been made by the contractor, despite a lapse of 20 months, though the supply had to be completed within 180 days. The above caused inordinate delay in completion of the works, ultimately causing time and cost overrun of the project. Thereafter, final notice was issued on 27.08.2018 and it was decided thereafter to cancel the work orders, on account of the petitioner’s default under Condition 28 of the General Conditions of Contract. Accordingly, the contract agreement was cancelled at the contractor’s risk and cost vide letter dated 22.09.2018. The payment of Rs.7,07,237/- against work done was only for 52.42%, after necessary deduction from the gross work done value of Rs.10,45,380/- already paid to the contractor. 4. The additional affidavit of the respondent Nos.1-4 at Para 3 & 6 states that the remaining work got completed by applying the risk and cost clause under CA No.Cdr 24TF-07 of 2018-19. Paragraph Nos.6, 7 & 8 of the affidavit states as follows:- “6. That the deponent further states that contractor also did not commence the work under CA No. Cdr 24TF-07 of 2016-17 and the Contract was cancelled on account of Contractor's default. The entire work got completed by concluding risk and cost contract under CA No. Cdr 24TF-07 of 2018-19. The Contractor was asked to deposit the different in amount (Risk & Cost) of Rs.6,39,969/- but the contractor failed to deposit the same. Inadvertently compensation for delay @ 10 % of CA value which amount to Rs, 2,02,073/- was not asked from the Contractor and the same was also not mentioned in the counter affidavit filed. Thus the total amount due to be recovered under CA No. Cdr-07 of 2016-17 is Rs. 8,42,042/- (Rs. 6,39,969/- + 2,02,073) instead of Rs.6,39,969/- as already mentioned in the counter affidavit. 7. That the deponent states that the Contractor also did not commence Page No.# 4/5 the work under CA No. Cdr 24TF-05 of 2016-17 and the Contract was cancelled on account of Contractor's default. The entire work got completed by concluding risk and cost contractor under CA No. Cdr 24TF- 06 of 2018-19. The Contractor was asked to deposit the different in amount (Risk & Cost) of Rs. 8,05,102/- but the contractor failed to deposit the same. Inadvertently compensation for delay @ 10 of CA value which comes to Rs. 1,98,801/- was not asked from the Contractor and the same was also not mentioned in the counter affidavit already filed. Thus the total amount due to be recovered under CA No. Cdr-05 of 2016-17 is Rs. 10,03,903/- (Rs. 8,05,102/- + Rs. 1,98,801/-) instead of Rs. 8,05,102/- as already mentioned in the counter affidavit. 8. That the dependent further states that as per Contract Agreement all disputes as required by condition 37 of the General Condition of Contract (RAM-1815Z) should be referred to the Sole Arbitration of a serving Engineer Office to be appointed by the Director General Border Roads, New Delhi or in his absence, the office officiating as Director General Border Roads whose decision shall be final, conclusive & binding as such, the writ petition is not maintainable for not fulfilling the Contract Agreement and approaching the Hon'ble Court inspire of the clear condition of Arbitration Clause in the Agreement. The deponent craves leave of this Hon’ble Court to produce any document at time of hearing, if need be.” 5. The contents of the affidavit-in-opposition and the additional affidavit-in- opposition filed by the respondents clearly goes to show that there are disputed questions of fact and as such, the same would require the parties to go into the various disputed questions of fact relied upon by the parties. 6. As there is an Arbitration Clause in the contact agreements executed by the parties, wherein all factual disputes can be resolved, this Court is of the view that the petitioner should avail the Arbitration Clause for redressal of his grievance. Page No.# 5/5 7. In view of there being an efficacious alternative remedy available, the present writ petition is closed, with liberty being given to the petitioner to avail the Arbitration Clause provided in the contract agreements signed between the parties. JUDGE Comparing Assistant