A respondent cannot recover mobilization advance where work was suspended and disputes remain unresolved, violating contract terms.

JUDGMENT :

Ahanthem Bimol Singh, J.

[1] Heard Ms Jyoti Mendiratta, learned counsel assisted by Mr. T. Momo, learned counsel appearing for the petitioner and Mr. Kh. Samarjit, learned DSGI assisted by Mr. N. Nongdamba, learned counsel appearing for respondent.

The present writ petition had been filed challenging the Demand Letter dated 20-04-2021 of the Executive Engineer, Manipur, CPWD, Tulihal Airport, Imphal, to claim and recover from the petitioner the alleged mobilization advance along with the interest amounting to Rs. 17,17,91,085/- coupled with the prayer for quashing the Memorandum dated 18-07-2022 issued by the said E.E. under Clause 29 of the General Conditions of Contract for withholding and recovery of departmental dues from the dues payable to the petitioner.

[2] The brief facts of the present case are that on behalf of the President of India, the respondent issued a Tender Notice dated 09-12-2014 along with information and instruction for bidders inviting e-tenders from interested and eligible tenderers for construction of a multipurpose building for the National Institute of Technology (NIT) at Langol, Imphal. The components of work includes pile foundation, internal water supply, sanitary installations, UG Sump, development and bulk services, internal electrical installations, HVAC Electric Sub-station, lifts, DG sets, fire alarm and fire fighting system.

The bids were invited by the respondent on a lumpsum basis and the petitioner submitted lumpsum bid for all the works specified in the tender documents altogether amounting to Rs. 2,10,22,70,513/- (Rupees two hundred ten crores twenty two lakhs seventy thousand five hundred and thirteen only) which included both civil and electrical works for the multipurpose building at NIT on the understanding that the time frame detailed in the tender and the contract provisions prescribed will be adhered to by the respondent. The bid submitted by the petitioner was accepted by the respondent and the same was communicated to the petitioner by a letter dated 02-03-2015. Pursuant thereto, an agreement was executed between the petitioner and the respondent for carrying out both civil and electrical works and the stipulated time for completion of the contract work was 730 days commencing from 24-03-2015.

[3] Clause 10B(ii) of the General Conditions of Contract (GCC) provides for availing mobilization advance by the Contractor not exceeding 10 percent of the tender value in the manner prescribed therein. For ready reference, the provision of Clause 10B(ii) of the GCC is reproduced hereinbelow:-

“10B(ii) Mobilization advance not exceeding 10% of the tendered value may be given, if requested by the contractor in writing within one month of the order to commence the work. Such advance shall be in two or more installments to be determined by the Engineer-in-Charge at his sole discretion. The first installment of such advance shall be released by the Engineer-In-charge to the contractor on a request made by the contractor to the Engineer-in-Charge in this behalf. The second and subsequent installments shall be released by the Engineer-in-Charge only after the contractor furnishes a proof of the satisfactory utilization of the earlier installment to the entire satisfaction of the Engineer-in-Charge.

Before any installment of advance is released, the contractor shall execute a Bank Guarantee Bond from Scheduled Bank for the amount equal to 110% of the amount of advance and valid for the contract period. This (Bank Guarantee from Scheduled Bank for the amount equal to 110% of the