Unconditional bank guarantees cannot be made conditional by external agreements; the guarantor remains liable unless a direct variance in contract terms occurs with consent.

JUDGMENT :

JYOTI SINGH, J.

1. This suit is filed on behalf of the Plaintiff seeking a decree for declaration that Plaintiff is discharged from its obligations under Bank Guarantees (‘BGs’) being: (i) Bank Guarantee No. 0691OBG16010553 dated 23.08.2016; (ii) Bank Guarantee No. 0691OBG16010800 dated 26.08.2016; (iii) Bank Guarantee No. 0691OBG16011649 dated 14.09.2016; (iv) Bank Guarantee No. 0691OBG16012653 dated 30.09.2016; and (v) Bank Guarantee No. 0691OBG16014183 dated 26.10.2016 as also declaring that invocation of the said Bank Guarantees vide notices/letters dated 05.01.2019, 15.01.2019 and 29.01.2019 is invalid, illegal and void. Plaintiff also seeks a decree in the sum of Rs.48,77,13,600/- along with interest from the date of payment against Defendant No.1.

BRIEF FACTS

2. It is averred that Plaintiff is a Banking Company registered under the Companies Act, 1956 engaged in the business of banking. Defendant No.1/Ministry of Road, Transport and Highways (‘MoRTH’) is an Organization under the Government of India entrusted with task of formulating and administering, in consultation with other Central Ministries/Departments, State Governments etc., policies for Road Transport, National Highways and Transport Research, with a view to increasing the mobility and efficiency of road transport system in the country. Defendant No.3 is a Company against which NCLT, Mumbai has admitted insolvency proceedings and appointed Resolution Professional. During the pendency of Corporate Insolvency Resolution Process (‘CIRP’), no legally compliant resolution plan was received by the Committee of Creditors till 269^th day and hence by efflux of time, on 270^th day, Defendant No.3 went into liquidation and NCLT thereafter appointed a Liquidator.

3. It is averred that MoRTH had entrusted the Government of Bihar the work of development, maintenance and management of NH-104 and had resolved to take up the work of rehabilitation and upgradation of 2 lanes with paved shoulders configuration and strengthening of Sitamarhi- Jaynagar-Narahai Section in the State of Bihar under Phase-I of the National Highways Inter-Connectivity Improvement Projects. By and under two separate bidding documents, both dated 01.04.2015, MoRTH invited bids for undertaking work in Lot-I and Lot-II of the Project.

4. It is stated that on 30.05.2015, Defendant No.3 and RCM Infrastructure Limited entered into two Joint Bidding Agreements for incorporation of a Joint Venture viz., SHEL-RCM JV (‘Joint Venture’) forbidding for Lot-I and Lot-II of the Project and on 02.06.2015, bids were submitted through the Joint Venture. As per Clause 6 of the Joint Bidding Agreements, it was agreed between Defendant No.3 and RCM Infrastructure Limited that their share of the work in terms of proportion of construction and equity share in the project would be 51% and 49%, respectively.

5. It is averred that on 15.10.2015, bid of consortium of Rs.154,62,00,000/- was accepted by MoRTH, being the lowest bid and two separate Letters of Acceptance were issued. On 23.11.2015, Joint Bidding Agreements were superseded by two Supplementary Agreements and it was agreed that Defendant No.3 would now have participation of 100% and RCM Infrastructure Limited would be responsible only to the extent of providing Project Management Services and Technical Consultations. It was also agreed under Clause 5 that it shall be the responsibility of Defendant No.3 to furnish any bond, Performance BG or Counter BG required by MoRTH.

6. It is averred that on 18.02.2016, two Engineering Procurement and Construction Agreements (‘EPC Agreements’) were exec