GEMINI COMMUNICATIONS LTD Vs. CHIEF GENERAL MANAGER

JUDGEMENT

(1.) These two intra-court appeals are directed against the order and decreetal order dated 21 September 2012 in O.A.Nos.238 and 239 of 2012 in C.S.No.207 of 2012, whereby and whereunder, the learned Single Judge was pleased to dismiss the interlocutory applications filed by the appellant for the purpose of restraining the respondent from terminating the Purchase Order dated 28 June 2010 and invoking the Performance Bank Guarantee.

(2.) The appellant is engaged in the business of providing and implementing networking solutions and services. The appellant has successfully completed various Government projects. The appellant has forged strong alliances with leading international companies and commands commendable respect in the industry. The Government of India under the administrative control of the Department of Information and Technology had intended to provide connectivity to Common Services Centres under the National e-governance project. The Government decided to implement the project under WiMAX technology and named it as "Rural WiMAX Project II". The Government of India had entrusted the implementation of Rural WiMAX Project II to the respondent/Bharat Sanchar Nigam Limited under the supervision of Department of Information and Technology.

(3.) The respondent issued a notification dated 5 June 2009 calling for tenders for Supply, Installation, Commissioning and Maintenance Support of Wave 2 certified WiMAX equipment in BSNL, in various circles across the Country on Turnkey basis. The total estimated cost of the tender was Rs.1167 Crores. Since it was a prestigious project, the appellant submitted its commercial tender. The bid submitted by the appellant was accepted resulting in issuance of Advance Purchase Order dated 16 December 2009 for a sum of Rs.434,34,21,603/-. The appellant was required to furnish security for an amount equal to 5% of the value of purchase order within fourteen days from the date of issuance of Advance Purchase Order by the respondent. The appellant furnished Performance Bank Guarantee for a sum of Rs.21,23,01,730/-. Though the appellant submitted the Bank Guarantee immediately, the respondent was very reluctant in issuing the Purchase Order. Finally, the respondent placed Purchase Order on 28 June 2010 for supply, installation, commissioning and maintenance support of WiMAX equipment in BSNL network on Turnkey basis for Project II. The value of the Purchase Order Project II was unilaterally reduced to Rs.378,28,07,007/-. The respondent after negotiation agreed to reduce the value of Bank Guarantee and a revised Bank Guarantee for a sum of Rs.19,26,63,217/- was submitted.