The Bank Guarantee could not be called an unconditional and irrevocable Bank Guarantee, and the petitioner made out a prima facie case for the grant of ad interim injunction.

JUDGMENT :

B.K. Patel, J. - In this writ petition, petitioners have assailed legality of order dated 25.1.2013 passed by learned Civil Judge (Senior Division), Jagatsinghpur rejecting petitioners' application for grant of ad interim temporary injunction ex parte under Order 39 Rule 3 of the CPC (for short, 'C.P.C.') filed in I.A. No. 17 of 2013, a proceeding for temporary injunction under Order 39 Rules 1 and 2 of the C.P.C., arising out of C.S. No. 20 of 2013.

2. Facts which stand undisputed, and supported by documents on record, are as follows:-

In response to invitation from the PPT in the month of June, 2009 for applications from interested parties in accordance with the Request for Qualification (RFQ), a consortium of two companies, namely M/s. Sterlite Industries (India) Limited and M/s. Leighton Welspun Contractors Private Limited submitted its technical bid to undertake the work of 'Development of Multipurpose Berth to Handle Clean Cargo including Containers on BOT basis'. In the month of February, 2010 PPT issued "Request for Proposal" (RFP) to the short listed bidders, including above said consortium, inviting application to submit financial bid to execute the work. As per the RFP bidding documents included the following documents:

(a) RFP Vol. I: Instruction to the bidders.

(b) RFP Vol. II: Project Report.

(c) RFP Vol. III: Concession Agreement.

Terms in the RFP, which is the principal contract, relevant for the purpose of appreciating the dispute between the parties are as follows:

Clause 1.2.4 (RFP-Vol. I)-A bidder is required to deposit, along with its Bid, a bid security equivalent to Rs. 3,30,00,000/- (Rupees thirty three million only), refundable not later than 60 (sixty) days from the Bid Due Date except in the case of the (lowest/highest) Bidder. The Bidders will have an option to provide Bid Security in the form of a demand draft or a Bank Guarantee acceptable to the Authority, and in such event, the validity period of the demand draft or Bank Guarantee, as the case may be, shall not be less than 180 (one hundred and eighty) days from the Bid Due Date, inclusive of a claim period of 60 (sixty) days, and may be extended as may be mutually agreed between the Authority and the Bidder from time to time. The Bid shall be summarily rejected if it is not accompanied by the Bid Security.

Clause 1.3. Schedule of Bidding Process (RFP Vol. I).

The authority shall endeavour to adhere to the following schedule:

Clause 6.3-Construction Phase (RFP Vol. III)

Concessionaire shall promptly commence and complete the work, including installation of equipment in accordance with the Project Schedule and shall also obtain from the Independent Engineer a certificate as to completion of construction of Project Facilities and Services in accordance with the provisions of this Agreement ("Completion Certificate") not later than 36 months from the date of commencement of the Concession Period.

Clause 1.2.4 of the RFP stipulated that a bidder is required to deposit bid security equivalent to Rs. 3,30,00,000/- (Rs. 33 million only) refundable not later than 60 days from the bid due date except in the case of the highest bidder. Bid security could be submitted in the form of bank draft or Bank Guarantee.

RFP, the bid document, also stipulated specific time schedule for proceeding ahead with the bidding process, signing of Concession Agreement and completion of the work. As per Clause 1.3, Letter of Award was to be issued by 30.4.2010, Concession Agreement was to be signed by 30.5.2010 and the bids were to remain valid till 30.7.2010. As per Clause 6.3, Completion Certificate of construction was to be issued not later than 36 months from the date of signing of the Concession Agreement.

The RFP (Vol. I) also provided at Clause 2.20.7 the circumstances under which Bid Security amount could be forfeited. The clause reads:

Clause-2.20.7- The Bid Security shall be forfeited and appropriated by the Authority as mutually agreed genuine pre-estimated compensatio