G.S. SISTANI, J.

I.A. 6154/2013 (O XXXIX R 1 & 2 CPC) IN CS(OS) 703/2013

I.A. 6160/2013 (O XXXIX R 1 & 2 CPC) IN CS(OS) 704/2013

1. Registry is directed to register both these suits as commercial suits.

2. Since a common question arises for consideration in both the applications, arguments in both the applications have been heard together and the applications are being decided by a common judgment.

3. Plaintiff has filed the present suits for declaration, permanent injunction and recovery. For the sake of convenience, the facts of CS(OS) 703/2013 are being noticed.

4. The facts of CS(OS) 703/2013 are that a tender was floated by defendant no.1 on 28.12.2011 inviting applications from interested parties for bidding for construction of 24,660 LIG and 4,855 EWS houses by using Prefab Technology in Narela and Rohini, Delhi (hereinafter ‘the project’). The estimated cost of the project was Rs. 959.23 crores. In order to bid for the tender, the plaintiff formed a joint venture with the defendant no. 3/ M/s IVRCL Limited (hereinafter ‘the Joint Venture’). Accordingly, the tender document was purchased by defendant no. 3. Subsequent to the floating of the tender, various amendments were made by the defendant no. 1. The tender document, inter alia, provided for the deposit of earnest money which was to be deposited in the following form:

(a) Rupees Twenty Lac Only in the shape of demand draft/deposit receipt/treasury challan/fixed deposit/ Receipt of a Scheduled Bank guaranteed by Reserved Bank of India; and

(b) The balance earnest money (Rupees Nine Crore Fifty Lakhs) in the shape of a bank guarantee.

5. The tender document further stipulated that in case of a joint venture, the bank guarantee was to be furnished out of their accounts in proportion to their financial participation. The validity of bank guarantee was to be 180 days from the last date of submission of the tender, which was initially expiring on 25.06.2012. Thus, in accordance with the tender documents the bank guarantee required to be submitted by the plaintiff must be initially valid till 24.12.2012.

6. As per the plaint, an amount of Rs.21,30,900/- was paid by the plaintiff as part earnest money to defendant no. 1 being the lead member of the Joint Venture. Thereafter the plaintiff approached defendant no. 2/ING Vysya Bank for issuance of a bank guarantee to the plaintiff’s portion. Accordingly, defendant no. 2 issued a bank guarantee no. 402LG0314/12 dated 30.07.2012 for Rs.4,84,50,000/- in CS(OS) 703/2013 and a bank guarantee no. 402LG0313/12 dated 30.07.2012 for Rs.5,52,33000/- in CS(OS) 704/2013. In addition to the said bank guarantees, the defendant no. 3 (other member of the Joint Venture) also deposited the requisite bank guarantees with the defendant no. 1 for its participation in the Joint Venture.

7. It is the case of the plaintiff that the tender process was getting delayed for the reasons solely attributable to defendant no. 1 and the plaintiff was forced to extend the bank guarantees from time to time till the date of the filing of the present suit and even thereafter.

8. As per the plaintiff, technical bid was opened on 14.12.2012 in the presence of the authorized representative of the Joint Venture. The plaintiff was verbally informed that a request had been sent by the Lieutenant Governor of Delhi to the Indian Embassy in Peru to verify and confirm the work experience certificate submitted by the plaintiff; however, the plaintiff claims that neither any notice was issued to the plaintiff nor the plaintiff is aware of the result of the verification. The validity of the bid was again extended upto 30.06.2013. Accordingly, the plaintiff was again asked to extend the bank guarantee upto 30.06.2013. The plaintiff was also informed by defendant no. 1 that in case the validity of the bank guarantee is not extended as requested, defendant no. 2 should enca