Point of Law: Writ Court in exercise of its extraordinary jurisdiction cannot adjudicate upon disputed questions of fact inasmuch as claim of petitioner regarding occurrence of event leading to a Force Majeure situation is not admitted.

JUDGMENT :

A.D. Choudhury, J.

1. Heard Mr. D. Saikia, learned Senior Counsel assisted by Mr. B. Gogoi, learned counsel for the appellant. Also heard Mr. P. K. Roy, learned Senior Counsel assisted by Mr. S. K. Chakraborty, learned counsel for the respondent Nos. 1, 2, 3 and 4 and Mr. R. Chakraborty, learned counsel for the respondent No.5.

2. The present intra court appeal is directed against the judgment and order dated 04.05.2019 passed by the learned Single Judge whereby, the writ petition being WP(C) 5955/2015, preferred by the appellant assailing an action of termination of contract and encashment of bank guarantee, was negated.

3. Pursuant to an NIT dated 10.04.2014 issued by the respondent i.e. Food Corporation of India Limited, The appellant/writ petitioner, was awarded a contract to construct a 50,000 M.T. capacity Non Railways Siding Godown at Village-Ouguri, Kachamari, Nagaon, Assam on Build, Own and Operate basis for a guaranteed period of 10 (ten) years @ Rs.6.93 per Qt. per month. However, alleging occurrence of Force Majeure events, the appellant sought change of site of construction and extension of time. Though, time was extended for a limited period, however, change of site was rejected and the authority terminated the contract and encashed Bank Guarantee and also forfeited security deposits by an order dtd. 30.04.2015 alleging violation of terms of Contract. The said order was assailed in the writ petition.

4. In the aforesaid factual backdrop, let this Court first look into the Bid clauses and Contract Conditions which are essential for determination of the present lis, which are as follows:

I. The godown was to be constructed on Build, Own and Operate basis over the land offered by the appellant within a scheduled time of 12 (twelve) months from the issuance of the acceptance letter (in the case of the petitioner letter is dated 11.09.2014.)

II. Successful bidders are required to furnish a security deposit for completion of construction in time @ Rs. 40/-per M.T. for non railway siding godowns and @ Rs. 60/- per M.T. for railway siding godowns.

III. In terms of Clause-7 of the NIT dated 10.04.2014, those bidders, who do not own or hold land but intend to acquire land by way of ownership/registered lease, are to be acquired within 120 days from date of issuance of acceptance letter. Such Bidders are also required to furnish a supplementary guarantee in the form of Bank Guarantee @ of Rs. 100/- per M.T.

IV. The Acceptance Letter (supra) also mandated production of the documents of ownership of the land/lease deed mentioned in the technical bid along with approval of construction within 120 days from the date of issuance of the letter of acceptance and it was further provided that in the event of failure, the contract would be cancelled, supplementary guarantee revoked and security deposit would be forfeited.

V. The Bidder was to enclose the details of the site, layout plan, indicating the location of the site showing the approach to the main road along with the Bid and change of such site shall not be agreed by FCI after submission of bid

VI. The specific location of the land proposed by the Bidder would not be permitted to be changed at any stage after submission of the Bid under any circumstances and failing which, the EMD, supplementary guarantee, security deposit and performance guarantee furnished by the bidder were liable to be forfeited/revoked.

VII. The EMD was liable to be forfeited if the bidder resiled from his offer and/or modifies the term and condition thereof. The bank guarantee submitted as supplementary guarantee is also liable to be encashed along with the forfeiture of EMD in such an eventuality.

VIII. In the event, the godown is not completed on specified land mentioned in the Bid document and not handed over within the stipulated period or there is any breach of condition of the contract, security deposit is liable to be forfeited.

IX. The Clause 59 of the contract document defines Force Majeure to be