IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
JYOTI STRUCTURE LTD – Petitioner
Versus
DAKSHINANCHAL VIDYUT VITRAN NIGAM LTD & ORS. – Respondents
O.M.P.(I) 15,16,17,18,19,20,21,22/2016
Decided On : 06-09-2016
Arbitration and Conciliation Act, 1996 - Section 9 - Specific Relief Act, 1963 - Section 14(1), 14(3)(c) - Contract - Breach - Bank guarantees - Encashing - Pleadings do not indicates any fraud - JSL is in breach of the contract - Progress had not measured up to the milestones as specified in the contract - Liquidated damages for delay in performance of the contract were less than the amount already recovered - Invocation of bank guarantees is fraudulent is also without merit - Contract has been terminated - DVVNL is claiming damages for breach of the contract - Held, DVVNL's claims cannot be restricted to liquidated damages for delay in performance of the contract - Bank guarantees include guarantees for securing the advances provided to JSL - DVVNL would be entitled to invoke those bank guarantees to recover the unadjusted advances.
Specific Relief Act, 1963 - Section 10, 14 (3)(c) - Letter of termination - JSL has been effectively blacklisted - Stay of letter of termination issued by DVVNL - Stay of invocation of the bank guarantees - Debarring JSL from participating in future tenders for a period of one year - Direction to debar JSL from participating in future tenders is a punitive measure and it would amount to blacklisting - Letter of termination debarring JSL from participating in future tenders for a period of one year is set aside - Dena Bank and Indian Bank are restrained from encashing the bank guarantees on the basis of the letters of invocation issued by DVVNL - This would not preclude DVVNL to issue fresh letters of invocation in accordance with the terms of the bank guarantees - Petitions are disposed of.
VIBHU BAKHRU, J.
1. M/s Jyoti Structures Limited (hereafter 'JSL') a public company incorporated under the Companies Act, 1956 has filed these petitions under Section 9 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act'), inter alia, praying that Dakshinanchal Vidyut Vitran Nigam Ltd. (hereafter 'DVVNL') be restrained from invoking and the issuing banks be restrained from encashing the subject bank guarantees.
2. JSL is, inter alia, engaged in the business of Engineering, Procurement and Construction in the power transmission and distribution sector in India and abroad.
3. The Ministry of Power, Government of India has issued a scheme known as Rajiv Gandhi Grameen Vidyutikaran Yojna (RGGVY-12th Plan) for electrifying villages and habitations in the country. In 2015, DVVNL invited applications for rural electrification work, inter alia, in various districts of Uttar Pradesh (UP).
4. JSL participated in the aforesaid bidding process and was awarded the aforesaid contracts for electrification of villages and inhabitants in the Districts of Auraiya, Etawah, Farrukhabad and Chitrakoot in the State of UP.
5. The above captioned petitions have been filed in relation to the subject bank guarantees furnished by JSL in respect of the aforementioned contracts. OMP(I) 15/2016 and OMP(I) 16/2016 relate to the contract pertaining to Auraiya District; OMP(I) 17/2016 and OMP(I) 22/2016 relate to the contract pertaining to the Etawah District, OMP(I) 19/2016 and OMP(I) 21/2016 relate to the contract pertaining to the Farrukhhabad District; and OMP(I) 18/2016 and OMP (I) 20/2016 relate to the contract pertaining to the Chitrakoot District.
6. The issues and material facts involved in the aforementioned petitions are similar and the learned counsel for the parties submitted that a decision in OMP(I) 15/2016 and OMP(I) 16/2016 -which pertains to contract for electrification of villages/habitations of Auraiya District, UP would be determinative of the other petitions as well. Thus, with the consent of the parties OMP(I) 15/2016 and OMP(I) 16/2016 are taken as lead matters.
7. DVVNL floated tender enquiries inviting applications for rural electrification work of villages of Auraiya District on 21.02.2015. JSL having submitted the lowest tender was issued a letter of intent dated 07.04.2015. The Notification of Award (NOA) was issued on 25.04.2015 and contract between the parties was executed on 22.06.2015. In terms of the NOA, the electrification works were to be completed within a period of 24 months from the date of NOA, that is, on or before 24.04.2017. The contract was in two parts. One part was for procurement of material, inspection and testing, supply and storage of material; and the second part was for transportation, insurance, installment services and training.
8. In terms of the contract, JSL submitted bank guarantees -7 in number the details of which are as under:-
| S.No. | Details | Amount (Rs.) | Bank |
| 1 | BG No. 116215IGADP0018 dated 24.07.2015 against advance mobilization (Supply - 1st Installment) valid upto 31.07.2017 | 9,81,29,041/- | Dena Bank
|
| 2 | BG No. 116215IGADP0019 dated 24.07.2015 against advance mobilization for erection (1st Installment) valid upto 31.07.2017 | 2,68,03,345/- | Dena Bank |
| 3 | BG No. 00012IG150000049 dated 08.07.2015 against Contract Performance Guarantee (CPG) for Supply valid upto 31.07.2018 | 11,89,45,000/- | Indian Bank |
| 4 | BG No. 00012IG150000050 dated 08.07.2015 against Contract Performance Guarantee (CPG) for Erection valid upto 31.07.2018 | 4,87,34,000/- | Indian Bank |
| 5 | BG No. 00012IG150000051 dated 08.07.2015 against Additional Bank Guarantee for meter and distribution transformers valid upto 31.07.2018 | 3,20,75,000/- | Indian Bank |
| 6 | BG No. 00012IG150000076 dated 24.09.2015 against advance mobilization (Supply 2nd Ins | ||
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