M S Sahu Construction vs National Highways And Infrastructure Development Corporation Limited

Court
Delhi High Court

$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010454212026
+ O.M.P.(I) (COMM.) 438/2026, I.A. 26226/2026 & I.A. 26227/2026

M S SAHU CONSTRUCTION .....Petitioner
Through: Mr. Puneet Taneja, Senior Advocate
alongwith Mr. Anil Kumar, Mr.
Manmohan Singh Narula and Mr. Amit
Yadav, Advocates.
versus

NATIONAL HIGHWAYS AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LIMITED .....Respondent
Through: Mr. Deepak Thukral, Standing Counsel
alongwith Mr. A.P. Singh and Mr.
Shashvat Dwivedi, Advocates.

nd
Date of Decision: 22 September, 2026
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G E M E N T

TUSHAR RAO GEDELA, J : (ORAL)
O.M.P.(I) (COMM.) 438/2026, I.A. 26226/2026 & I.A. 26227/2026
1. This is a petition filed under Section 9 of the Arbitration & Conciliation
Act, 1996 (hereinafter referred to as ‘the Act’ ) seeking interim measures of
protection against the notice of Intention to Terminate dated 29.08.2026
issued by the respondent in relation to the Engineering Procurement Contract
Agreement dated 07.12.2020 (hereinafter referred to as ‘ EPC Contract
Agreement ’) for the work of “Improvement and widening to two lane with
paved shoulder of road from 21.100 kilometer to 29.200 kilometer, total
length 8.100 kilometer i.e. Kailashahar-Futali Section of NH-208 (Package-1)
Signature Not Verified
O.M.P.(I) (COMM.) 438/2026 Page 1 of 5


Digitally Signed
By:YASHRAJ
Signing Date:25.09.2026
11:00:36

in the State of Tripura on EPC mode”.
2. Learned senior counsel contends that even as per the notice impugned
before this Court, the petitioner has completed physical progress upto 97.89%
and the financial progress upto the extent of 95.62% . He states that in such a
situation, the notice displaying the intention to terminate in terms of Clause
23.1(ii) on default of the contractor may not be justified.
3. He also contends that in the order dated 08.09.2026, the High Court of
Tripura, Agartala, in Court on its own motion vs. Union of India & Ors.,
(WP)(C)(PIL)No.6/2026 passed certain directions in view of the poor
maintenance of highways, etc., in the State of Tripura, however, the petitioner
is not one such contractor enlisted in the said order. He submits that the fault
of laying down low quality roads/highways, etc., is attributable to those
contractors enlisted in the Public Interest Litigation. Thus, issuing such
sweeping impugned notice, despite such physical and financial progress as
noted therein would cause immense prejudice and loss to the petitioner.
4. He further submits that the delay in achieving milestones is bogey for
the reason that an extension of total time of 1554 days, out of which 1092
days without Liquidated Damages, and 462 days with Liquidated Damages
with completion date as 30.09.2026 have been recommended. Thus, the action
for initiation of termination notice is premature.
5. Learned senior counsel states that a detailed representation dated
10.09.2026 has been submitted by the petitioner, however, has not yet been
considered. The respondent is stated to have also not considered the
application for extension of time. Thus, in such circumstances, the action of
the respondent is neither called for nor warranted.
6. Issue notice.
7. Mr. Deepak Thukral, learned standing counsel appearing for the

Signature Not Verified
O.M.P.(I) (COMM.) 438/2026 Page 2 of 5


Digitally Signed
By:YASHRAJ
Signing Date:25.09.2026
11:00:36

respondent, accepts notice.
8. Learned standing counsel refers to Clause 23.3 of the EPC Contract
Agreement to submit that the respondent is at liberty to even terminate the
contract even for convenience which would take effect in 30 days from the
notice provided to the petitioner. According to him, the respondent has
discretion to terminate the contract under this clause too, for which no
explanation would be necessary. He also refers to Section 14(b) of the
Specific Relief Act, 1963, to submit that no specific performance of the
agreements falling within its ambit can be enforced, performance of which
needs continuous monitoring.
9. This Court has perused the judgement of the learned Division Bench of
the High Court of Tripura, Agartala, and notes that the petitioner is not
included in the list of contractors who are found to be at fault for breach of
contractual terms by the learned Division Bench.
10. That apart, it is significant to note that the respondent itself

acknowledges that the petitioner has completed physical progress upto the
extent of 97.89% and financial progress upto the extent of 95.65%. While the
petitioner claims to have achieved 100% completion of the work.
11. The relevant portion of the communication of intention to terminate the
contract dated 29.08.2026 is extracted hereunder:
“

Signature Not Verified
O.M.P.(I) (COMM.) 438/2026 Page 3 of 5


Digitally Signed
By:YASHRAJ
Signing Date:25.09.2026
11:00:36

”

12. Thus, even according to the respondent, the petitioner has made
substantial progress, albeit, with delay and by missing milestones. It is also
noted that out of a total extension of 1554 days, 1092 days without Liquidated
Damages and 462 days with Liquidated Damages with completion date as
30.09.2026 have also been recommended by the respondent.
13. While the respondent may be empowered to terminate the contract for
convenience under Clause 23.3 of the EPC Contract Agreement, however,
what has been invoked or sought to be invoked is Clause 23.1 of the EPC
Contract Agreement, which refers to default of the contractor. Thus, reference
to Clause 23.3 of the EPC Contract Agreement, at this stage may not be
relevant.
14. Having heard preliminary submissions of the learned counsel for the
parties, and having regard to the admitted progress both physical and financial
achieved by the petitioner, it is deemed appropriate at this stage, to grant a
short injunction till the next date of hearing to enable the respondent to file its
reply.
15. Accordingly, let reply be filed within ten days from date. Rejoinder
thereto, if any, be filed within three days thereafter.
16. List for consideration on 13.10.2026.
17. Dasti under the signatures of the Court Master.

I.A. 26228/2026 (Exemption)
18. This is an application under Section 151 of the Code of Civil

Procedure, 1908 (hereinafter referred to as ‘ CPC ’) filed on behalf of the
petitioner seeking exemption from filing true/typed/legible copies of the
Signature Not Verified
O.M.P.(I) (COMM.) 438/2026 Page 4 of 5


Digitally Signed
By:YASHRAJ
Signing Date:25.09.2026
11:00:36

illegible/dim document nos.2, 3, 5, 7 & 10.
19. Exemption allowed, subject to just exceptions. However, true
typed/translated/clear copies of aforesaid documents with proper margins be
filed within four weeks with an advance copy to the respondent.
20. The application stands disposed of.
I.A. 26229/2026 (Seeking permission to file length synopsis and list of
dates)
21. This is an application under Section 151 of the CPC filed on behalf of
the petitioner seeking permission to file lengthy synopsis and list of dates.
22. For the reasons stated therein, the application is allowed.
23. The application is disposed of.


TUSHAR RAO GEDELA, J
(JUDGE)

SEPTEMBER 22, 2026
kct/rl


Signature Not Verified
O.M.P.(I) (COMM.) 438/2026 Page 5 of 5


Digitally Signed
By:YASHRAJ
Signing Date:25.09.2026
11:00:36