A. HARI BALA KRISHNAN Vs. NLC INDIA

JUDGEMENT

(1.) This Writ Petition has been filed by the petitioner challenging the communication of the first respondent issued to the fourth respondent, dtd. 6/5/2019 and consequential order passed by the fourth respondent, dtd. 10/5/2019, thereby directing the petitioner to pay the balance amount of Rs.1,03,00,000.00.

(2.) Heard the learned counsel appearing on either side and perused the materials placed before this Court.

(3.) The third respondent was allotted a contract to the tune of Rs.14,96,04,264.00 for the construction of residential quarters, barracks, armoury and quarter guard building including electrification works for CISF in the second respondent site as per the contract dtd. 5/3/2016. The said validity was upto 19/11/2018. As per the award of the contract, the third respondent has to execute 'Contract Performance Bank Guarantee' to the tune of Rs.1,49,60,427.00 payable to the first respondent for non- fulfilment of any obligations. The third respondent engaged the petitioner as a sub-contractor to execute the said work order. Therefore, the petitioner stepped into the shoes of the third respondent and advised the fourth respondent to issue bank guarantee for a sum of Rs.1,49,60,427.00 in favour of the first respondent. The said bank guarantee was valid upto 19/11/2018. In order to raise that bank guarantee, the petitioner had deposited the title deed of its immovable properties as well as cash margin through various term deposits. On such deposit, the fourth respondent issued bank guarantee in favour of the first respondent dtd. 29/6/2016. The memorandum of understanding was executed between the petitioner and third respondent and even then, the petitioner was permitted to execute the work order as a sub-contractor, however, the third respondent did not facilitate the petitioner and as such, the petitioner could not able to start the construction work. Therefore, the third respondent executed a Memorandum of Understanding dtd. 1/9/2016 in favour of M/s.Deepak Innov Infrastructure Limited, Erode to execute the said work as a sub-contractor. However, the third respondent did not facilitate M/s.Deepak Innov Infrastructure Limited, Erode to execute the work order as per the sub-contract. Further, the third respondent executed a Memorandum of Understanding dtd. 27/12/2017 in favour of the fifth respondent. Since already the bank guarantee expired on 19/11/2018, the first respondent demanded for an extension and revalidation of bank guarantee beyond 19/11/2018 upto 30/6/2019. However, the petitioner denied extension or revalidation of the bank guarantee. But on the request made by the third respondent, the petitioner requested the fourth respondent to revalidate the bank guarantee for a period of two months ie., 20/11/2018 to 19/1/2019. Accordingly, the fourth respondent by its communication dtd. 29/11/2018 extended the validity of the bank guarantee till 19/1/2019 and communicated to the first respondent. Since the bank guarantee was completed and expired on 19/1/2019 and the claim period also expired on 19/2/2019, the petitioner requested the fourth respondent by his communication dtd. 20/2/2019, to cancel the bank guarantee and return the properties which were deposited to avail bank guarantee and also marginal money. However, the first respondent by its communication dtd. 16/3/2019 stated that the third respondent did not submit any extended bank guarantee on or before 7/11/2018 and as such, the first respondent lodged a claim before the fourth respondent by its communication dtd. 8/11/2018. In turn, the fourth respondent forwarded the communication to the first respondent dtd. 16/3/2019 to the petitioner. Therefore, the petitioner sent a communication dtd. 21/3/2019 to the fourth respondent stating that the bank guarantee had already expired on 19/1/2019 and the claim period also expired on 19/2/2019, therefore, the claim made by the first respondent dtd. 16/3/2019 is a time-barred one, invalid and illegal. Hence, requested the fourth respondent not to encash the bank guarantee.