JUDGMENT :

[Prathiba M. Singh, J.]

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner- Kashyapi L&N JV under Article 226 seeking quashing of the impugned order dated 28th August, 2020 passed by Respondent No.2- Container Corporation of India (hereinafter ‘CONCOR’). Vide the impugned order, the Earnest Money Deposit (EMD) and other dues of the Petitioner have been forfeited as also the Petitioner has been debarred from participating in re-tender.

3. CONCOR had issued an e-tender dated 19th November, 2019 for construction of three warehouses and allied works at MMLP, Barhi, Sonipat, Haryana. In response to the said e-tender, the Petitioner submitted its bid. The technical bids were opened on 13th December, 2019. Along with the bid, the Petitioner had also submitted an EMD to the tune of Rs.15,40,650/-.

4. The contract was awarded to the Petitioner vide Letter of Acceptance (LOA) dated 28th February, 2020 which was to be counter signed by the Petitioner and the same was accepted. As per the said letter, performance Bank Guarantee (BG) was to be submitted by the Petitioner in two parts. First part of the BG was to be submitted by the Petitioner for 5% of the contract value of Schedule A to I, for a sum of Rs.99,36,162/-. Second part of the BG amounting to 10% of the contract value of Schedule J for a sum of Rs.50,660/-. The said BG was to be submitted within 30 days from the LOA, which could be extended to 60 days.

5. However, on 19th February, 2020 itself, the Government of India had announced the triggering of the force majeure clause owing to the covid-19 pandemic and the subsequent lockdowns. In view of the pandemic, on 9th April, 2020, the Petitioner sought extension of time for submission of the performance BG. Again, lockdowns were imposed and extended in view of the pandemic. During this entire period, CONCOR continued to give extensions to the Petitioner for submission of the performance BG vide letters dated 7th April, 2020, and 1st May, 2020.

6. Since the BGs were not supplied and furnished, on 28th July, 2020, CONCOR put the Petitioner to notice, to submit the performance BG, the work plan and also start the work within two days, however, the Petitioner chose not to do so. On 10th August, 2022, another reminder was given by CONCOR and it was made clear in the said letter that if the performance BG is not furnished, the EMD would be forfeited. Finally, on 28th August, 2020, the EMD was forfeited vide the impugned order and the Petitioner was debarred from participating in the re-tender of that particular project. The impugned order is set out below:

“Dear Sir,

The above-mentioned work has been awarded to you vide LOA no. CON/EP/MMLP/Barhi/Ph-II/2019 dt. 28.02.2020 with an advice to submit Performance Guarantee within 30 days of issue of LOA without interest and within 60 days with penal interest of 15% per annum.

As requested by you and considering COVID-19 pandemic situation, date of submission of Performance Guarantee has been extended and same has been communicated to you. Kindly refer this office various letters dt. 28.07.2020 10.08.2020 & 21.08.2020, vide which you have been advised to submit performance guarantee of Rs. 99,36,162/- latest by 24.07.2020 without interest and by 24.08.2020 with penal interest of 15% per annum beyond 24.07.2020.

As you have failed to submit Performance Guarantee, despite number of reminders. above mentioned contract has been terminated duly forfeiting EMD and other dues, if any payable against this contract. Further, you have been debarred from participating in re-tender of this work as per clause 1(4) of CCC.

Kindly acknowledge the receipt of this letter”

7. It is the case of the Petitioner that it was prevented from furnishing the performance BG due to closures of the Bank, affected by the lockdown, and since the force majeure clause had been triggered, as per the General Conditions of the Contract, no penalty or forfeiture cou