The main legal point established in the judgment is that the conclusion of a contract can occur upon the award of work, and non-compliance with tender and contract terms can justify contract termination and the imposition of penalties.

ORDER :

Ramesh Sinha, J.

1. Heard Dr. N.K. Shukla, learned Senior Advocate assisted by Mr. Arjit Tiwari, learned counsel for the petitioner. Also heard Ms. Astha Shukla, learned counsel for the respondents.

2. By way of this writ petition the petitioner has prayed for following reliefs:-

“10.1 The Hon’ble Court may kindly be pleased to call for the entire records leading to passing of the impugned termination order dated 19.06.2021 (Annexure P-7) for the kind perusal of this Hon’ble Court.

10.2 The Hon’ble Court may further kindly be pleased to direct that the order of termination of contract issued by the respondents on 19.06.2021 (Annexure P-7) is quashed.

10.3 The Hon’ble Court may also kindly be pleased to direct the respondents to allow the petitioner to comply the requirements of the contract so that a concluded contract comes into existence and the petitioner be able to commence the work as per the provisions of the NIT, as the petitioner is still interested to commence the work.

10.4 Cost of the petition may also be granted to the petitioner.

10.5 Any other relief which this Hon’ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice.”

3. Brief facts of the case are that, the petitioner is a joint venture company which has been incorporated in order to respond to the notice inviting tender issued by the SECL on 28.06.2020 for "Hiring of HEMM for excavating all kinds of strata / overburden / insitu loading into Tippers, Transportation and unloading of excavated materials & silt, dumping, dozing, scrapping / removal of all bands, preparation / maintenance of haul road, water sprinkling and spreading of material at the site shown in the plan and as per directives of the Management / Engineer in charge of Amlai OC Expansion, Sohagpur Area for Total Quantity: 3,72,98,290 Cum (23,26,609.00Cum-Soft Soil + 3,43,64,912.00Cum-Hard Strata + 6,06,769.00 Cum-Re-handling), Minimum QPD: 25547 Cum, Period: 1460 days". This e-tender notice has been identified by bearing NIT No.SECL/BSP/CMC/e-Tender/407 dated 28.06.2020. Pursuant to the notice inviting tender, the petitioner constituted a joint venture partnership. It is submitted that this joint venture agreement was inconformity with the requirement which is made in the tender notice.

4. The petitioner along with other competitors submitted their bids and the tender evaluation committee found that the bid submitted by the petitioner is lowest (L-1) and therefore on 27.10.2020, the respondents issued letter of intent. It is respectfully submitted that the awarded value of the work was Rs.239,38,18,394.10 including GST @ 18%. Duration for completion of contract work is 1460 days and at the time of submission of bid, the bidder is required to deposit Rs.50 lakhs towards earnest money. The petitioner deposited Rs.50 lakhs towards earnest money. According to the terms and conditions of the notice inviting tender, the successful bidder is required to submit performance guarantee. It is further submitted that even in the letter of intent, it is mentioned that the work shall commence only after submission of performance security and additional performance security, if any.

5. The notice inviting tender is divided in several parts and in one of the parts under the caption of "Instructions to Bidders", there is a provision for performance security/ security deposit at serial No./clause 24. The NIT have several parts and one of the parts is general terms and conditions. Some of the definitions are given in clause 1 under the caption of "Definitions". "Contract" is defined in sub-clause (viii) of clause 1 which says that the 'contract' shall mean the notice inviting Bid, the Bid as accepted by the company and the formal agreement executed between the company and the contractor together with the documents referred to therein including work order, general terms and conditions, special terms and conditions, Additional terms and conditions etc., if any, schedule o