KIOCL LTD Vs. HARYANA STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD (HSIIDC) AND OTHERS

JUDGEMENT

(1.) Impugned in present revision is order dated 23.9.2016 (Annexure-P-15), passed by learned Additional District Judge, Panchkula, affirming order dated 24.6.2016, passed by learned Additional Civil Judge (Senior Division), Panchkula, vide which an application filed by plaintiff-present petition under Order XXXIX, Rules 1 and 2 read with Section 151, CPC, 1908, was dismissed.

(2.) Plaintiff-Petitioner KIOCL Ltd. is a Government of India Enterprise, incorporated under Companies Act, 1956, and is engaged in mining activities at Kudremukh. Defendant HSIIDC is a Haryana Government Enterprise. Defendant No. 1 invited competitive bidding for development and operation of Khanak Stone Mining Project, District Bhiwani, Haryana. Last date for submitting of bid was 16.12015. Plaintiff petitioner KIOCL Ltd. and Rungta Projects Ltd. formed a consortium for purpose of bid. Plaintiff was fulfilling the financial eligibility criteria and Rungta Projects Limited was fulfilling technical eligibility criteria. Plaintiff was the lead member in said consortium. Consortium of KIOCL Rungta Projects Limited submitted bid on 14.12015 to defendant Nos. 1 and Technical bids were opened on 18.12015. While submitting bid, plaintiff had submitted a bank guarantee to tune of Rs. 15 crores, issued on 7.11.2015 by IDBI Bank Ltd., Bangalore (defendant No. 3) in favour of HSIIDC towards EMD. Bid was valid for 180 days i.e. upto 15.6.2016. After opening of price bid, defendant No. 2 did not inform plaintiff about status of the bid. After five months, defendant Nos. 1 and 2 wrote a letter dated 16.5.2016 to plaintiff, stating that they are unable to award contract/allocate work in view of decision rendered by Punjab and Haryana High Court in CWP No. 26240 of 2015, in which interim orders were issued on 17.12015, allowing the bid to be evaluated. However, work order shall not be given till further orders. Next date of hearing was 19.1.2016. Defendant Nos. 1 and 2 further requested that as validity of bid expires on 15.6.2016, therefore, validity of bid may be extended for three months i.e. upto 16.9.2016. Plaintiff, vide letter dated 13.6.2016, replied that since uncertainty hovering over placement of letter of intent/letter of award, plaintiff conveyed their unacceptance to extend bid validity for a period of three months i.e. upto 16.9.2016, as requested by defendant No. On 13.6.2016, plaintiff came to know that through letter of award dated 13.6.2016, that on 18.1.2016 when bid was opened, they were shortlisted as L-1 as successful bidder and selected bidder with reference to bidding process. Vide letter dated 13.6.2016, defendant No. 2 imposed a condition that letter of award is subject to final decision of this Court in CWP No. 26240 of 2015, titled as Jaswinder Singh Bal v. State of Haryana. Defendant Nos. 1 and 2 concealed material fact from plaintiff regarding said civil writ petition and interim orders were revealed for the first time, vide letter dated 16.5.2016. Condition in letter of award that it is subject to final decision of CWP No. 26240 of 2015 is not acceptable and it amounts to modification/deviation of terms of agreement. Bid validity period expired on 15.6.2016 and plaintiff did not extend same for next three months. Defendant No. 2, vide letter dated 15.6.2016, informed plaintiff that they cannot withdraw from contract as per Clause 7.16.2 as specified in Clause 7.3 and withdrawal of bid may result in bidders forfeiture of its EMD in pursuance to Clause 7.8 h (i). Plaintiff relied, vide letter dated 17.6.2016, that bid has not been withdrawn and that conditional letter of award is not acceptable. Plaintiff requested defendant No. 2 to return bank guarantee, which is not being done. Therefore, prayer is made for restraining from encashing bank guarantee and further directing defendant No. 3 Bank not to issue bank guarantee to defendant Nos. 1 and

(3.) Stand of defendant Nos. 1 and 2 is that under Clause 7.16.2, no bid shall be withdrawn in the interval between bid submission deadline and expiration of bid validity period specified in Clause 7. Withdrawal of a bid may result in bidders forfeiture of its EMD. Plaintiff was issued letter of award dated 16.2016 in prescribed time. Instead of complying with terms and conditions of letter of award, plaintiff backed out. Therefore, EMD of Rs. 15 crores in the shape of bank guarantee stands forfeited.