BJCL SRINATH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present petition has been taken up for consideration through the mode of Video conferencing in view of the prevailing situation on account of COVID 19 Pandemic, requiring social distancing.

(2.) The present writ petition has been filed for quashing the show cause notice dtd. 27/6/2019 issued by the Executive Engineer, Western Embankment Division, Birpur, whereby and hereunder the petitioner has been asked to file his show cause reply as to why the agreement no. 01/SBD-2018-19 be not rescinded. The petitioner has further prayed for quashing of the order dtd. 4/7/2019 issued by the Executive Engineer, Western Embankment Division, Birpur, whereby and whereunder the agreement in question has been rescinded in terms of clause-3 of the General Conditions of Contract forming part of standard bidding documents.

(3.) The brief facts of the case are that a short re-tender notice no. 6 of 2017-18 was issued vide letter dtd. 5/2/2018 inviting offers for the work pertaining to "residual work of raising and strengthening of eastern and western Koshi embankment, construction of bituminous road over it and construction/ renovation/ restoration of structures". The petitioner had participated in the tender process and being the lowest bidder was awarded the tender and then the letter of acceptance dtd. 11/4/2018 was issued with the stipulation that the work was to be completed by 31/3/2019. An agreement dtd. 18/4/2018 bearing agreement no. 01/SBD/2018-19 was entered into between the respondent no. 7 and the petitioner. It is the case of the petitioner that there was delay in providing approved drawings, lay out plans etc. for starting the work in question leading to slow progress of work. Nonetheless, without issuing any show cause notice and without seeking any explanation from the petitioner, the petitioner was saddled with imposition of liquidated damages clause under the signature of the Superintending Engineer vide letter dtd. 7/1/2019. However, subsequently, the matter was sorted out and the liquidated damages which was imposed against the petitioner was withdrawn vide letter dtd. 2/2/2019. Thereafter the petitioner was served with a letter dtd. 21/6/2019 intimating the petitioner about the decision to rescind the agreement and get the remaining work done at the risk and cost of the petitioner firm. It appears that various communications were exchanged in between the petitioner and the respondent with regard to the submission of revised construction programme and grant of extension of time, nonetheless the respondents decided to withdraw the entire mobilization advance given to the petitioner firm and decided to invoke the bank guarantee, whereafter the concerned bank was directed to en-cash the same in favour of the respondents. The petitioner had then challenged the decision of the respondents to invoke the bank guarantee before this Court by filing a writ petition bearing CWJC No. 12998 of 2019 but the same was dismissed vide order dtd. 28/6/2019, however, with liberty to the petitioner to seek remedy, in accordance with law.