Compensation is an adequate relief for non-performance of a contract, and no injunction can be issued preventing termination of a license.

JUDGMENT

Sanjeev Sachdeva, J. - Petitioner seeks a restraint on the respondent from terminating agreement dated 09.08.2017 for not furnishing the performance guarantee. Further petitioner seeks a restraint on the respondent from recovering the license fee for the month June-July, 2020 and a reduced license fee for the period August, 2020 to December, 2020 and to adjust the encashed performance guarantees against the outstanding amount payable.

2. Petitioner had submitted a bid for being appointed as a concessionaire for design, development, implementation, operation and maintenance of smart parking solution for on street, off street and indoor parking spaces in NDMC area on Public Private Partnership model. On 10.07.2017 letter of acceptance of tender was issued to the petitioner. As per the petitioner there were certain shortages of equivalent car space allotted to the petitioner than what was tendered.

3. As per the terms of the agreement petitioner had to pay 61% of the gross revenue or Rs.75 lakhs per month whichever is higher which was liable to be increased periodically and accordingly on 01.07.2019 it became Rs.76,85,985/-.

4. Disputes have arisen between the parties. As per the respondent, petitioner has short paid the license fee and has been irregular in the payments of the monthly license fee.

5. The case of the petitioner is that during the period of lockdown some concession should have been granted to the petitioner in terms of the Force majeure clause of the contract.

6. Since the petitioner allegedly delayed the payments and further delayed performing his obligations under the contract, respondents invoked the performance guarantee. The invocation is disputed by the petitioner inter alia on the ground that they have counter claims.

7. It may be noticed that the contract has not been terminated till date and petitioner is still servicing the contract.

8. It is contended on behalf of the respondents, that though they are entitled to terminate the contract, as the contract has not yet been terminated, petitioner is liable to replenish the performance bank guarantees and continue to pay the regular license fee in accordance with the terms of the contract.

9. Learned counsel appearing for the respondent submits that since the present petition was pending and in deference to the Court they did not exercise the right to terminate the contract and have filed an application (CM APPL.32231/2021) seeking permission of the Court to exercise the right of termination.

10. On 08.03.2021, when the petition was listed before this Court for the first time, a statement was made on behalf of the petitioner that Petitioner shall, within a period of three months, replenish the performance bank guarantees in the sum of Rs.4.054 crores that had been invoked by the respondents and shall also continue to pay the regular license fee as per the contract.

11. On 31.08.2021 a submission was made by the counsel for the respondent that despite three months time being granted to the petitioner and even till that date, the performance bank guarantees have not been replenished and the regular license fee was also not paid.

12. Thereafter respondents filed the application (CM APPL.32231/2021) seeking leave of the Court to terminate the contract on account of petitioners default in honoring the statement given to this Court on 08.03.2021.

13. On 10.11.2021, once again it was pointed out by learned counsel for the respondent that the statement given to this Court on 08.03.2021, that petitioner shall replenish the bank guarantees in the sum of Rs.4.054 crores and continue to pay the regular license fee, had still not been complied with.

14. On 10.11.2021, petitioner was given one last opportunity to comply with the statement before the next date of hearing i.e. 30.11.2021 failing which it was ordered that respondent would be at liberty to proceed in accordance with law.

15. Even on 30.11.2021 the statement was not complied with, however, petitioner came with cert