Integral Construction Company India Pvt. Ltd vs Bharat Coking Coal Ltd. Through Its Chairman-Cum-Managing Director

Aparesh Kumar Singh, J

Heard counsel for the parties.

Petitioner has approached this Court with a prayer that Respondents be directed to accept Performance Guarantee furnished by it on 01.07.2016 to the tune of Rs. 1,62,00,000/- and consequently issue the work order and also enter into an Agreement in connection with the work floated by the Notice Inviting e-Tender dated 19.08.2015 (Annexure-1) for Hiring of HEMM for removal of OB and Jhama, extraction and transportation of coal from VIIB, VIIIA, VIII, V/VI/VII & IVB/IVT/V/VI/VII seams of Kali Mandir Patch-II(A) of Block-II OCP of Block-II Area on the specified location for an estimated value of Rs. 63,40,26,685/- to be executed within a working period of 730 days.

Petitioner contends that Letter of Acceptance has been issued on 30.01.2016 (Annexure-2), whereunder petitioner was asked to submit Performance Guarantee in terms of Clause-4 of General terms and conditions of the tender documents within 28 days. Petitioner however has submitted the Bank Guarantee only on 01.07.2016 due to some genuine reasons. Clause-4 of General terms and conditions of the NIT do contain a discretion to the employer to accept Performance Guarantee beyond 28 days time. Reference has been made to the communication dated 06.07.2016 (Annexure-4) by the General Manager, Block-II Area, BCCL after submission of Performance Guarantee by the petitioner, whereunder he has been informed that since the Bank Guarantee has been submitted beyond the time limit of submission, it is only acceptable subject to approval of the competent authority. Before that, he can do the preparatory work to start the patch. Reference has been made to the correspondences undertaken by the petitioner at Annexures-6 to 9 in support of the submission that certain preparatory work has also been done. However, petitioner received a final notice on 19.08.2016 (Annexure-10) in connection with the execution of the said work, wherein it has been asked to undertake full fledged work within seven days from the date of issuance of letter failing which, action shall be taken against him without any further reference. Petitioner contends that there are issues which have however inhibited it from undertaking the full fledged work, one of which is delay in issuance of the work order on acceptance of Performance Guarantee. Petitioner has therefore approached this Court as now, Respondents may undertake coercive steps and forfeit its earnest money as well.

Learned counsel for the Respondents BCCL submits that the prayer made herein is in the nature of specific performance of contract. In such matters therefore, writ petition is not maintainable as various questions of fact including the Performance of Reciprocal Promises under the terms of the NIT and Letter of Acceptance may be required to be gone into. The General terms and conditions of the NIT itself provides for settlement of dispute at Clause-14. Therefore, interference at the behest of the petitioner in such matters, at this stage, is wholly uncalled for.

Considered the submissions of the parties in the light of the relevant material facts noticed herein-above. This Court is of the view that at this stage, any interference in the matter is not warranted. The General terms and conditions of the NIT provides for a mechanism for settlement of dispute which the petitioner may avail of.

Learned counsel for the petitioner submits that he has already approached the General Manager, Block-II Area vide Annexure-12 & 13 dated 23.05.2016 and 10.09.2016 respectively to resolve the pending issues in the matter of issuance of work order and entering into a formal Agreement. In that case, it would only be proper to relegate the petitioner to pursue the available recourse under the General terms and conditions of the NIT.

Needless to say, the competent authority under the Respondent BCCL would look into the matter within a reasonable time, preferably seven days on the representation made by the petitioner and thereafter proceed in accordance with law. It would be in the fitness of things that pending consideration of his request within the aforesaid time, Respondent would not take any coercive steps.

Writ petition is accordingly disposed of.