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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, NIRAL R. MEHTA, JJ.
DATANG TECHNOLOGIES AND ENGINEERING INDIA PVT. LTD. - Appellant
Versus
GUJARAT STATE ELECTRICITY CORPORATION LTD. - Respondent
SPECIAL CIVIL APPLICATION NO. 17338 of 2021
Decided On : 24-11-2021
Constitution of India,1950 – Article 12 and 226 – Civil Procedure Code,1908 – Section 2 – Arbitration and Conciliation Act – Section 17,12 to 43 – Contract - Seek appropriate interim relief - Writ applicant is a private limited company engaged in business of an innovative technology expanding value chain of electricity production, service electrical construction and environment- friendly, resource-conserving social construction engineering enterprise - Respondent namely Gujarat Electricity Corporation Limited is a Public Sector Undertaking incorporated under Laws of India and is engaged in field of power generation and related activities in State of Gujarat - It is not in dispute that respondent herein is a “State” within the meaning of Article 12 of the Constitution of India - It appears from materials on record that respondent No.1 intends to develop a 800 Megawatts Thermal Power Plant at Wanakbori, Gujarat - In this regard, bid submitted by writ applicant was accepted and finalized by the Corporation - In accordance with Letter of Award (LOA), Corporation was to undertake work of design, engineering, manufacture, shop testing, packing and forwarding, modification, loading / unloading, storage at site, insurance, erection, completion of work with PG Tests including civil works, for supply, installation, commissioning and testing of FGD system for 800 Megawatts within three years - Respondent – Corporation issued a Letter of Intent (LOI) in favor of writ applicant for an amount - Whether contract should be terminated and performance Bank Guarantee be revoked.
Finding of the court : Court are of view that upon receipt of show cause notice writ applicant should have immediately filed an appropriate reply making good its case that on account of circumstances beyond its control, it has not been able to adhere to terms and conditions of Letter of Award - However, still, it is not late for writ applicant to file an appropriate reply - Although the time period to file reply expires tomorrow - Court grant indulgence to writ applicant to file its reply - Once the reply comes on record, Corporation shall look into same and take an appropriate decision in accordance with law - If the Corporation needs any clarification on any issue, it may call upon the writ applicant to appear in person through any authorized officer - Aforesaid arrangement shall not preclude writ applicant to invoke provisions of the Act, 1992 and raise a reference before Tribunal - If any such reference is raised, Tribunal shall look into same in accordance with law and take an appropriate decision expeditiously – Court make it clear that there shall not be any unnecessary delay on the part of Tribunal - Same will not be appreciated by the Court – Court clarify that we have otherwise not gone into the merits of the matter – Court are not inclined to entertain this writ application on short ground that the matter is still at stage of show cause notice.
Result: Application disposed of.
ORDER :
J.B.PARDIWALA, J.
1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
(b) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction restraining the Respondent No. 2 from making any payment under the Bank Guarantees bearing nos. 002BG01190590003 dated 28.02.2019 and valid up to 13.09.2023; and 002BG01190590002 dated 28.02.2019 and valid up to 13.09.2023, and 002BG01192670006 dated 24.09.2019 and valid up to 30.11.2022 to Respondent No.1 or otherwise till the matter is decided by the Gujarat Public Work Contract Disputes Tribunal;
(c) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction restraining Respondent No. 3 from making any payment under the Bank Guarantee no.OGT0017200048462 dated 07.11.2020 and valid up to 31.12.2021 to Respondent No. 1 or otherwise till the matter is decided by the Gujarat Public Work Contract Disputes Tribunal;
(d) Pending hearing and final disposal of the present Petition, restrain the Respondent No. 1 from taking any action pursuant to the Show Cause Notice dated 10.11.2021 at Annexure - A to the Petitioner and further restrain the Respondent No.1 from invoking/encashing the Bank Guarantees bearing nos. 002BG01190590003 dated 28.02.2019 and valid up to 13.09.2023; 002BG01190590002 dated 28.02.2019 and valid up to 13.09.2023; 002BG01192670006 dated 24.09.2019 and valid up to 30.11.2022, all issued by the Respondent No. 2 and bank guarantee no. OGT0017200048462 dated 07.11.2020 and valid up to 31.12.2021 issued by the Respondent No. 3;
(e) Pending hearing and final disposal of this Petition, restrain the Respondent No.2 from making any payment under the Bank Guarantees bearing nos.002BG01190590003 dated 28.02.2019 and valid up to 13.09.2023; and 002BG01190590002 dated 28.02.2019 and valid up to 13.09.2023, and 002BG01192670006 dated 24.09.2019 and valid up to 30.11.2022 to Respondent No.1 or otherwise;
(f) Pending hearing and final disposal of this Petition, restrain the Respondent No.3 from making any payment under the Bank Guarantee no. OGT0017200048462 dated 07.11.2020 and valid up to 31.12.2021 to Respondent No. 1 or otherwise
(g) any other and further relief deemed just and proper be granted in the interest of justice.
(h) to provide for the cost of this petition”
2. The facts giving rise to this writ application may be summarized as under:
3. The writ applicant is a private limited company engaged in the business of an innovative technology expanding the value chain of electricity production, service electrical construction and environment- friendly, resource-conserving social construction engineering enterprise.
4. The respondent No.1 namely the Gujarat Electricity Corporation Limited is a Public Sector Undertaking incorporated under the Laws of India and is engaged in the field of power generation and related activities in the State of Gujarat. It is not in dispute that the respondent No.1 herein is a “State” within the meaning of Article 12 of the Constitution of India.
5. It appears from the materials on record that the respondent No.1 intends to develop a 800 Megawatts Thermal Power Plant at Wanakbori, Gujarat. In this regard, the bid submitted by the writ applicant was accepted and finalized by the Corporation. In accordance
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