IN THE HIGH COURT OF ORISSA : CUTTACK

W.P. (C). NO. 14664 OF 2022

M/S Hirakud Industrial Works Limited

& Another PETITIONER

-Vs-

East Coast Railways & others.

OPP.PARTIES

PRILIMNARY OBJECTION WITH RESPECT TO

MAINTANIBILITY OF THE PRESENT WRIT PETITION

FILED BY THE OPP.PARTIES NO.1 and 2

1. That the present Writ Petition has been preferred by the

petitioner challenging the alleged illegality and propriety
of the actions of the Opp. Party No.1 and 2 in providing
the Opp. Party No. 3 despite the termination of the
agreement between the Petitioner No.1 and Opp. Party
No. 3 by efflux of time which is absolutely illegal and
arbitrary.

2. That, at the out set while denying all the allegations and
averments made in the writ petition the answering
opposite parties most humbly submit that the writ
petition is not maintainable in the eyes of law as well as
the facts.

3. That it is most humbly submitted for the appreciation of

Hon’ble Court that the allegations and the averments
made in the writ petition are purely factual in nature and
 therefore arising out of a contractual dispute between the
parties. Hence, the writ petition is not maintainable
before this Hon’ble Court.

4. That, barely reading the writ petition clearly shows that,

the petitioner is not relying on the agreement executed
between the petitioner No.1 and Opp. Party No. 1 dated
28.09.2005, which is still in force.

5. That, as per the above agreement which is annexed as

Annexure-2 in the writ Petition, it is most humbly
submitted that the agreement has an arbitration clause.
Under clause 34 of the agreement dated 28.09.2005,
there is provisions for arbitration for better appreciation
of this Hon’ble court. The provision is quoted hereunder;

“Arbitration: In the event of any dispute or difference of

opinion between the parties as to the respective rights and
obligations of the parties hereunder or as to the true intent
and meaning of these presents or any articles or
conditions thereof arising such dispute or difference of
opinion (except the matters regarding which the decision
specifically provided for in this agreement) shall be
referred to the arbitral tribunal consisting of at least 3
members to be appointed by the General Manager, East
Coast Railway for the time being, and his decision shall be
final conclusive and binding on the parties for the purpose
of this agreement, the General Manager will mean the
head of the East Coast Railway Administration.

If one or more of the arbitrators appointed by the General

Manager resigns from his appointment as an arbitrator or
vacates his office or is unable or unwilling to act so for any
reason whatsoever or dies, the General Manager will have
the power to appoint a new arbitrator to act in his place.
Such arbitral tribunal shall be entitled to proceed with the
 reference from the stage at which it was left by the
previous arbitrator.

The arbitral tribunal may from time to time, with the

consent of parties, …………… to these presents enlarge
time for making and publishing the award.”

6. That, it is most humbly submitted that the said

agreement is still in force and the arbitration clause
categorically postulates that, any event and in any
dispute or in difference of opinion between the parties,
then it has to be referred to the Arbitration. Therefore
when the agreement is still in force then if at all any
dispute is alleged by the petitioner then the same should
be referred to arbitration. Hence, the writ petition is not
maintainable.

7. That, so far as the prayer in the writ petition is

concerned, it is against the present answering party, and
the petitioner has prayed as follows;

“In view of the above stated facts and circumstances, this

Hon’ble Court may graciously be pleased to issue Rule
NISI calling upon the Opposite Parties to show cause as to
why a writ in nature of mandamus should not be issued
directing the Opp. parties No 1 and 2 to ensure that the
Opp. Party No.3 does not utilize the private land siding of
the Petitioner No.1 at the Hirakud Sambalpur Railway Line
and direct appropriate compensation for the harassment
meted out to it.

And if the Opp. Parties failed to show cause or show

insufficient cause this Hon’ble Court may graciously be
pleased to make the said rule absolute by directing the
Opp. Parties No.1 and 2 to ensure that the Opp. Parties
No.3 does not utilize the private land siding of the
 Petitioner No.1 at the Hirakud Sambalpur Railway Line
and appropriate compensation for the harassment meted
out to it.

8. That, from the bare reading of the Prayer, it is crystal

clear that the petitioner alleging some dispute against
Opp parties No 1 and 2 , whereas as per the agreement
and the arbitration clause it is certainly ascertainable
that, any dispute is to be referred to the arbitration and
as there is a provision of arbitration and there is some
factual dispute between the parties, writ petition ought
not to be entertainable. Therefore the writ petition is
liable to be dismissed.

9. That, further it is most humbly submitted that, there was

an agreement between petitioner and the Opp. Party
No.3, and the petitioner company is under insolvency
proceeding and the dispute is pending before the National
Company Law Appellate Tribunal, Principal bench (New
Delhi) in Company Appeal (AT). It is submitted for the
appreciation of the Hon’ble court that, on 17.01.2022 the
Hon’ble NCLAT has passed an order while the status quo
with regard to the parties to be maintained in respect to
the assets of the petitioner’s company. So far as the
Railway siding (property/asset) in connection to the
present writ petition is concerned is also within the ambit
of the assets as mentioned in the NCLAT.

10. Therefore, as NCLAT has passed an order directing

status quo to be maintained with respect to the assets,
then any interference by this Hon’ble court might raise to
multiplicity of litigation which will prejudice parties
involved in the present case.

11. Therefore in view of the arbitration clause and

pendency of the matter before the NCLAT, this petition is
 not maintainable in law as well as in fact. Hence is liable
to be dismissed.

12. That this submission of the Opp. Parties may not be

treated as admission of any allegations or claims of the
petitioner. This affidavit is sweared and signed without
prejudiced to the rights and contention of the railways
i.e. Opp. Parties No.1 to 2.

13. Therefor that in view of the above facts and

circumstances this Hon’ble Court may graciously be
pleased to adjudicate the preliminary question of
maintainability first and dismiss the writ petition as not
maintainable in the interest of justice.

14. That the answering opp. Parties most humbly

reserve the right to file detailed counter and additional
documents if so required for the better adjudication.

Cuttack

Date Advocate for the Opp. Party No. 1 to 2

AFFIDAVIT

I, ____________, aged about ___ , S/o. ___________,

Address ________Presently working as _____________, do
solemnly affirm and state as follows that,

1. That I have been duly authorized to swear this

affidavit.
 2. That the facts stated above are true to the best of my
believe and knowledge

DEPONENT

Identified by

ADVOCATE

CERTIFICATE

Certified that due to non-availability of cartridge papers, the

same has been typed on thick white papers.

Cuttack
Date ADVOCATE