ORDER :

Shree Chandrashekhar, J.

M/s ARETPL-AT(JV) approached the writ Court against the order contained in letter dated 12th October 2017 by which Letter of Acceptance (in short 'LOA') with respect to the work of “Hiring of HEMM for removal of OB at outsourcing patch of Konar part of AKK OCP of B-K Area for a period of four years” was cancelled for 2 days' delay in furnishing performance security.

2. The writ Court held that the stipulation under Clause 4.2 of NIT for furnishing performance security of 5% of annualized value of contract amount to be deposited within 28 days of LOA by the successful bidder was not a mandatory condition. The writ Court further held that the order of blacklisting for 3 years issued under Clause 4.2 of General Terms and Conditions (in short 'GTC') without issuing a show cause notice was bad in law.

3. The aforesaid findings by the writ Court in WP(C) No. 6106 of 2017 have been challenged by Central Coalfields Limited (in short 'CCL') on the grounds that (i) there was no concluded contract between the parties (ii) CCL cancelled LOA and passed the order of forfeiture and debarment as provided under NIT and, (iii) writ Court exceeded its jurisdiction to interpret the clauses in NIT.

4. In support of the aforesaid submissions, Mr. A.K. Das, the learned counsel for the CCL has referred to the judgments in “Bharat Coking Coal Ltd. v. AMR Dev Prabha” (2020) 16 SCC 759, “South Eastern Coalfields Limited v. S. Kumar's Associates AKM (JV)” (2021) 9 SCC 166, “Central Coalfields Limited v. SLL-SML (Joint Venture Consortium)” (2016) 8 SCC 622,“South Delhi Municipal Corpn. v. Ravinder Kumar” (2015) 15 SCC 545, “Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.” (2013) 5 SCC 470, “Satish Batra v. Sudhir Rawal” (2013) 1 SCC 345, “Kisan Sahkari Chini Mills Limited v. Vardan Linkers” (2008) 12 SCC 500 and “Global Energy Ltd. v. Adani Exports Ltd.” (2005) 4 SCC 435.

5. An e-Tender Notice was published on 15th May 2017 for engaging contractor for “Hiring of HEMM for removal of OB at outsourcing patch of Konar part of AKK OCP of B-K Area for a period of four years”. The work under e-Tender Notice pertained to blast hole drilling, blasting, excavation, loading and transportation of all kinds of soil, rocks, broken rocks, hard rocks and extraneous materials including mixed soil, mixed hard soil, clay soil, pebbles, stone etc. and dumping outside the working zone. M/s ARETPL-AT(JV) which is respondent before us was declared L-1 bidder on 15th August 2017 and pursuant thereto LOA was issued to it on 15th August 2017. Under LOA dated 15th August 2017, the respondent was required to furnish performance security of Rs.2,04,04,894/- and additional performance security of Rs.16,06,24,850/- within 28 days – that is, by 12th September 2017. In the meantime, the project site was handed over to the respondent on 18th August 2017 and work order was issued on 29th August 2017.

6. CCL issued letter dated 6th September 2017 reminding the respondent to furnish performance security by due date to avoid any adverse consequence. However, the respondent could furnish performance security of Rs.2,04,04,894/- through 4 BGs drawn on State Bank of India, SME Branch, Dhanbad, all dated 11th September 2017, through letter dated 14th September 2017. There is no dispute that the aforesaid bank guarantees furnished through letter dated 14th September 2017 were received by CCL on 15th September 2017.

7. As noticed above, by a communication dated 15th October 2017 the respondent was intimated cancellation of award of tender through LOA dated 15th August 2017.

8. Before the writ Court, the decisions in “Global Energy Ltd.”, “Kisan Sahkari Chini Mills Limited ”, “Verigamto Naveen v. Govt. of A.P.” (2001) 8 SCC 344 and “Noble Resources Ltd. v. State of Orissa” (2006) 10 SCC 236 were pressed by CCL to submit that the terms of NIT are not amenable to judicial scrutiny and the writ Court should not have interfered