Non vs M/S Ropeways And Rapid Transport on 28 February, 2026

Himachal Pradesh High Court

Non vs M/S Ropeways And Rapid Transport on 28 February, 2026

Author: Sushil Kukreja

Bench: Sushil Kukreja

                                                                Neutral Citation No. ( 2026:HHC:5019 )


     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                                   .
                                                                  OMP No. 1379 of 2025 in





                                                                  Civil Suit No.5 of 2023
                                                                  Reserved on: 26.02.2026
                                                                   Decided on 28.02.2026





M/s Randhawa Constructions Private Ltd. & another
                                           ....Non-Applicants/Plaintiffs




                                                         of
                                             Versus

M/s Ropeways and Rapid Transport
System Development Corporation HP Ltd.
(RTDC) and others
                               rt                                  ....Applicants/Defendants

Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?1

For the non-applicants/plaintiffs:Mr. Ajay Kumar, Senior Advocate with
Mr. Rohit, Advocate.

For the applicant/defendants: Mr. R.K. Gautam, Senior Advocate with
Mr. Sahil Dixit, Advocate, for applicant/

defendant No.1.

Mr. Manoj Chauhan, Additional Advocate
General with Mr. Ankush Thakur and

Mr. Balwinder Singh Ballu, Deputy
Advocates General, for non- applicant/
defendant No.2.

____________________________________________________
Sushil Kukreja, Judge

The present application has been filed by applicant/

defendant No.1 under Section 151 of the Code of Civil Procedure (CPC)

1
Whether reporters of Local Papers may be allowed to see the judgment?

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with a prayer to treat the following proposed issues as preliminary

issues:-

.

“(i) Whether the suit is not maintainable as no proper court
fee has been affixed with the plaint?….OPD

(ii) Whether the suit is not maintainable as the same has not

been filed in compliance of the mandatory provisions of
The Commercial Courts Act, 2015? …OPD

(iii) Whether the suit is time barred?…OPD”

of

2. Brief facts of the case are that the non-applicants/plaintiffs

filed a suit for refund and recovery of the bid security amount of
rt
Rs.1,32,00,000/- alongwith interest and legal cost in terms to clause 2.26

of the tender document. As per the plaintiffs, they came to know about

the tender called by applicant/defendant No.1 for development of the

rope-way between Narkanda and Hatu Peak in District Shimla on Public

Private Partnership (PPP). It was a Request For Proposal (RFP) floated

in the form of a tender on 14.10.2019, in which, the last date was

10.02.2020. The plaintiffs, who were business consortium, jointly applied

for participation in the aforesaid project and they were the only bidder for

the said project in 2019 and requested for pre-bid meeting with the

defendants on 25.11.2019. Subsequently, the plaintiffs sent a draft of the

Force Majeure Clause extract to be incorporated and again raised

serious objections to the Force Majeure Clause contained in the RFP as

not being feasible, viable and acceptable to the plaintiffs, vide email

dated 10.02.2020. After holding a meeting on 04.05.2020, Technical

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Officer of defendant No.1 found that the technical bid of the plaintiffs was

responsive, therefore, informed them to take part in the financial bid on

.

29.06.2020. Defendant No.1 accepted that the plaintiffs’ issues

remained un-resolved, due to which that tender could not be finalized

even after opening of the Final Bid on 29.06.2020. The letter dated

29.06.2020 communicated the fact that the decision making process of

of
the tender was going to take more time and, therefore, requested the

plaintiffs to extend the validity of the bank guarantee to 08.12.2020,
rt
which was accepted by the plaintiffs and it was accordingly extended till

08.12.2020. Even if presuming it was from 29.06.2020, it was still given

after more than 5 months when the RFP stated the validity of Bid time to

be 3 months as per clause 2.25. It was further averred that till the time of

the award neither the bid was accepted, nor rejected and no decision had

ever been communicated on the objections within the stipulated time-

frame. Despite the pendency of consideration on the objections raised

by the plaintiffs and after depositing the Earnest Money Deposit,

defendant No.1 has in utmost wrongful/ unjustified/ arbitrary/

unconstitutional manner demanded from the plaintiffs to submit fresh

Bank Guarantee. Therefore, on the basis of the aforesaid pleadings, the

plaintiffs filed the instant suit for refund of Rs.1,32,00,000/- alongwith

interest at the rate of 18% per annum from the date of filing of the suit till

the date of payment.

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3. Applicant/defendant No.1 filed written statement to the plaint,

wherein preliminary objections qua maintainability of the suit, estoppel,

.

no proper Court fee affixed, limitation, non-joinder of necessary parties,

cause of action etc. were raised. On merits, it was averred that the

plaintiffs have no right to withdraw the Bid Security later than 60 days

from the date of bid, hence, the plaint deserves to be rejected. It was

of
further averred that once the offer/proposal was finally accepted by the

plaintiffs, vide letter dated 23.05.2020, they were legally bound to fulfill all
rt
the terms and conditions mentioned in the REP. Hence, the prayer for

dismissal of the suit has been made.

4. The non-applicants/plaintiffs filed replication to the written

statement filed by applicant/defendant No.1, wherein the averments

made in the plaint were re-asserted and reaffirmed.

5. During pendency of the suit, the present application has

been filed on behalf of applicant/defendant No.1, with a prayer to treat

the following proposed issues as preliminary issues:-

“(i) Whether the suit is not maintainable as no proper court
fee has been affixed with the plaint?….OPD

(ii) Whether the suit is not maintainable as the same has
not been filed in compliance of the mandatory
provisions of The Commercial Courts Act,
2015? …OPD

(iii) Whether the suit is time barred? …OPD”

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6. Reply to the application has been filed on behalf of the non-

applicants/ plaintiffs, wherein the averments made in the application have

.

been denied. It has been averred in the reply that the proposed issues

are mixed issues of law and facts and they cannot be treated as

preliminary issues.

7. Learned Senior Counsel for applicant/defendant No.1

of
vehemently contended that since the proposed issues are related to the

very maintainability of the suit, therefore, on the basis of the pleadings of
rt
the parties, these issues are required to be treated as preliminary issues.

8. On the other hand, learned Senior Counsel for the non-

applicants/plaintiffs contended that all the issues are required to be heard

and decided together and the proposed issues being the mixed issues of

law and facts, they cannot be treated as preliminary issues.

9. I have heard Mr. R.K. Gautam, learned Senior Counsel for

the applicant/defendant No.1 as well as Mr. Ajay Kumar, learned Senior

counsel for the the non-applicants/plaintiffs and Mr. Manoj Chauhan,

learned Additional Advocate General, for non-applicant/defendant No.2

and have carefully gone through the material available on record.

10. At this stage, it would be relevant to reproduce Order XIV,

Rule 2 of CPC, which reads as under:-

” 1. —— —— —— ——

2. Court to pronounce judgment on all issues.–

(1) Notwithstanding that a case may be disposed of on a

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preliminary issue, the Court shall, subject to the provisions
of sub-rule (2), pronounce judgment on all issues.

.

(2) Where issues both of law and of fact arise in the same

suit, and the Court is of opinion that the case or any part
thereof may be disposed of on an issue of law only, it may
try that issue first if the issue relates to–

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being
in force, and for that purpose may, if it thinks fit, postpone
the settlement of the other issues until after that issue has

of
been determined, and may deal with the suit in accordance
with the decision on that issue.”

11. The bare perusal of Order XIV, Rule 2 of CPC suggests that
rt
when issues both of law and of fact arise in the same suit, and the Court

is of opinion that the case or any part thereof may be disposed of on an

issue of law only, it may try that issue first if the issue relates to the

jurisdiction of the court or a bar to the suit created by any law for the

time being in force

12. In Prithvi Raj Jhingta & anr. Vs. Gopal Singh & anr., AIR

2007 Himachal Pradesh 11, it has been held in para-9 of the judgment

by the Full Bench of this Court that except in situations perceived or

warranted under Sub-rule (2) where a Court in fact frames only issues of

law in the first instance and postpones settlement of other issues, under

Sub-rule (1), clearly and explicitly in situations where the Court has

framed all issues together, both of law as well as facts and has also tried

all these issues together, it is not open to the Court in such a situation to

adopt the principle of severability and proceed to decide issues of law

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first, without taking up simultaneously other issues for decision. Relevant

portion of the said judgment is reproduced as under:-

.

“9. Based upon the aforesaid reasons therefore, and in
the light of legislative background of Rule 2 and the
legislative intent as well as mandate based upon such

background, as well as on its plain reading, we have no
doubt in our minds that except in situations perceived or
warranted under Sub-rule (2) where a Court in fact frames
only issues of law in the first instance and postpones

of
settlement of other issues, under Sub-rule (1), clearly and
explicitly in situations where the Court has framed all issues
together, both of law as well as facts and has also tried all
these issues together, it is not open to the Court in such a
situation to adopt the principle of severability and proceed
rt
to decide issues of law first, without taking up
simultaneously other issues for decision. This course of

action is not available to a Court because Sub-rule (1) does
not permit the Court to adopt any such principle of
severability and to dispose of a suit only on preliminary
issues, or what can be termed as issues of law. Sub-rule
(1) clearly mandates that in a situation contemplated under

it, where all the issues have been framed together and
have also been taken up for adjudication during the course
of the trial, these must be decided together and the
judgment in the suit as a whole must be pronounced by the

Court covering all the issues framed in the suit.”

13. In Sathyanath and another Vs. Sarojamani, (2022) 7 SCC

644, the Hon’ble Supreme Court held that if the issue is a mixed issue of

law and fact, or issue of law depends upon the decision of fact, such

issue cannot be tried as a preliminary issue. Paras 21 & 23 of the

judgment read as under:-

“21. The provisions of Order XIV Rule 2 are part of the
procedural law, but the fact remains that such procedural
law had been enacted to ensure expeditious disposal of
the lis and in the event of setting aside of findings on
preliminary issue, the possibility of remand can be
avoided, as was the language prior to the unamended

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Order XIV Rule 2. If the issue is a mixed issue of law and
fact, or issue of law depends upon the decision of fact,
such issue cannot be tried as a preliminary issue. In other

.

words, preliminary issues can be those where no evidence

is required and on the basis of reading of the plaint or the
applicable law, if the jurisdiction of the Court or the bar to
the suit is made out, the Court may decide such issues
with the sole objective for the expeditious decision. Thus,

if the Court lacks jurisdiction or there is a statutory bar,
such issue is required to be decided in the first instance so
that the process of civil court is not abused by the litigants,

of
who may approach the civil court to delay the proceedings
on false pretext.

22. … … … ..

23. The different judgments of the High Court referred to
above are in consonance with the principles laid down by
rt
this Court in Ramesh B. Desai that not all issues of law can
be decided as preliminary issues. Only those issues of law
can be decided as preliminary issues which fell within the

ambit of clause (a) relating to the “jurisdiction of the Court”

and (b) which deal with the “bar to the suit created by any
law for the time being in force.” The reason to substitute
Rule 2 is to avoid piecemeal trial, protracted litigation and
possibility of remand of the case, where the appellate court

differs with the decision of the trial court on the preliminary
issues upon which the trial court had decided.”

14. Perusal of the aforesaid judgments reveals that though

provision contained under Order XIV, Rule 2 (2) CPC, permits a court to

try issues of law, if any, at the first instance, but when such an issue is a

mixed question of law and facts, same cannot be decided as a

‘preliminary issue’. It has further been categorically held in the aforesaid

judgment, that to avoid possibility of remand by the appellate or revisional

jurisdiction, trial Court is under obligation to decide all issues together,

especially when no specific preliminary issue was ever raised with regard

to limitation and jurisdiction. Where no evidence is required, on the basis

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of reading of plaint or applicable law, Court can ascertain its jurisdiction

or of maintainability of suit, it can try such issue as a ‘preliminary issue’

.

and decide the same at the first instance by postponing settlement or

decision qua other issues.

15. In Sukhbiri Devi & others Vs. Union of India & others, ,

2022 SCC Online 1322, it has been held that in a case where question

of
of limitation could be decided based on admitted facts it could be decided

as a preliminary issue under Order XIV, Rule 2(2)(b), CPC, but where
rt
the issue of limitation is not a pure question of law, it can not be decided

as a preliminary issue. Relevant portion of the judgment reads as under:-

“16.. Now, we will consider the first question: ‘whether the issue of
limitation can be determined as a preliminary issue under Order

XIV, Rule 2, CPC‘. It is no longer res integra. In the decision in
Mongin Realty and Build Well Private Limited Vs. Manik Sethi,
even while holding that the course of action followed by the

learned Trial Judge of directing the parties to address arguments
on the issue of limitation as irregular since it being a case where

adduction of evidence was required, a two-Judge Bench of this
Court referred to a three-Judge Bench decision of this Court in
Nusli Neville Wadia Vs. Ivory Properties that the issue therein was

whether the issue of limitation could be determined as a
preliminary issue under Order XIV, Rule 2, CPC. After taking note
of the fact that going by the decision in Nusli Neville Wadia’s
case, in a case where question of limitation could be decided
based on admitted facts it could be decided as a preliminary issue
under Order XIV, Rule 2(2)(b),CPC, the two- Judge Bench held
that in the case before their Lordships the question of limitation
could not have been decided as a preliminary issue under Order
XIV, Rule 2 of CPC as determination of the issue of limitation in
that case was not a pure question of law. In the said contextual
situation it is worthy and appropriate to refer to paragraphs 51, in

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so far as it 8 [(2020) 6 SCC 557] is relevant, and 52 of the
decision in Nusli Neville Wadia’s case8 and they read thus:-

“51.[…] As per Order 14 Rule 1, issues arise when a

.

material proposition of fact or law is affirmed by the one

party and denied by the other. The issues are framed
on the material proposition, denied by another party.
There are issues of facts and issues of law. In case

specific facts are admitted, and is the question of law
arises which is dependent upon the outcome of
admitted facts, it is open to the court to pronounce the
judgment based on admitted facts and the preliminary

of
question of law under the provisions of Order 14 Rule 2.
In Order 14 Rule 2(1), the court may decide the case on
a preliminary issue. It has to pronounce the judgment
on all issues. Order 14 Rule 2(2) makes a departure
and the court may decide the question of law as to
rt
jurisdiction of the court or a bar created to the suit by
any law for the time being in force, such as under the
Limitation Act.

52. […] In a case, question of limitation can be
decided based on admitted facts, it can be decided as a
preliminary issue under Order 14 Rule 2(2)(b). Once
facts are disputed about limitation, the determination of

the question of limitation also cannot be made under
Order 14 Rule 2(2) as a preliminary issue or any other
such issue of law which requires examination of the
disputed facts. In case of dispute as to facts, is

necessary to be determined to give a finding on a
question of law. Such question cannot be decided as a

preliminary issue. In a case, the question of jurisdiction
also depends upon the proof of facts which are disputed
and the question of law is dependent upon the outcome
of the investigation of the facts, such question of law

cannot be decided as a preliminary issue, is settled
proposition of law either before the amendment of CPC
and post amendment in the year 1976.”

(Emphasis added)

16. Thus, perusal of the aforesaid judgment reveals that once

facts are disputed about limitation, the determination of the question of

limitation cannot be made under Order 14 Rule 2(2) as a preliminary

issue or any other such issue of law which requires examination of the

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disputed facts In the instant case also after going through the pleadings

of the parties, in my opinion, the proposed issues, as mentioned in para-2

.

of the application, are mixed issues of law and facts and they cannot be

decided only on the basis of pleadings adduced on record by respective

parties as the evidence is required to be led in order to decide these

issues as such they can not be treated as preliminary issues.

of
Consequently, the instant application, being devoid of any merit,

deserves to be dismissed and the same is dismissed accordingly.

rt

17. Be it stated that any expression of opinion given in this order

does not mean an expression of opinion on the merits of the case and is

only confined to disposal of this application.

                                                     ( Sushil Kukreja )




February 28, 2026                                         Judge
      (V.Himalvi)






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