FAO (COMM) 90/2022

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$~1

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IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

FAO (COMM) 90/2022 and CM Nos. 27091/2022,

27092/2022 & 27093/2022

CONTAINER CORPORATION OF INDIA

LTD.

..... Appellant

Through:

Ms Divya Singh and Mr

Paritosh Budhiraja, Advocates.

versus

M/S SHIVAKRITI INTERNATIONAL LTD

& ANR.

..... Respondents

Through:

Mr Sanjeev Puri, Senior

Advocate with Mr Prateek

Mishra, Ms Moinmoi Chatterjee

and Ms Tweisha Mishra,

Advocates for R-1.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

HON'BLE MR. JUSTICE AMIT MAHAJAN

VIBHU BAKHRU, J. (ORAL)

1.

The appellant has filed the present appeal impugning an ex

parte order dated 12.03.2021 passed by the learned District Judge,

inter alia, directing that the status quo be maintained in respect of the

Performance

Bank Guarantee no. 3178120BG0000192 dated

21.08.2020

and

the

Security

Deposit

Bank

Guarantee

No.3178120BG0000272 dated 06.10.2020 (hereafter ‘the PBG’ and

‘SDBG’ respectively).

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002250

FAO (COMM) 90/2022

Page 2 of 16

2.

Respondent no.1 (M/s Shivakriti International Ltd. – hereafter

‘SIL’) filed a suit, inter alia, praying for a decree of permanent

injunction restraining the appellant (hereafter ‘Concor’) from

invoking and encashing the PBG and SDBG. SIL further sought a

decree of permanent injunction restraining respondent no.2 (State

Bank of India) from acting upon any letter received from Concor

demanding the invocation of the two bank guarantees in question.

3.

The case set up by SIL in its plaint is briefly stated as under:

3.1

Concor issued a Letter of Acceptance (LoA) dated 06.02.2017

awarding the work pertaining to Signalling and Telecommunication at

Khemli Station on Chittorgarh-Udaipur Section of Ajmer Division on

North Western Railway. SIL signed the said LoA on 01.03.2017. In

terms of the LoA work was to be commenced on or before the 15^th day

of the issuance of the LoA.

3.2

On 04.03.2017, SIL furnished a Performance Bank Guarantee

issued by State Bank of India for a sum of ₹34,64,482/- being 5% of

the contract value. Thereafter, on 23.03.2017, Concor and SIL entered

into a formal contract. It was stipulated that the work would be

completed within a period of six months from the date of

commencement (that is, six months from the 15^th day of issuance of

LoA). SIL claims that Concor had failed and neglected to perform its

obligations under the contract and consequently, the work could not be

completed within the stipulated period of time. The time for

completing the contract was extended and SIL was constrained to

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002250

FAO (COMM) 90/2022

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extend the term of the Performance Bank Guarantee. SIL has averred

in its plaint that despite all obstacles, it continued to perform its

obligations within the limited scope as available. However, it was

unable to perform substantial work due to alleged inaction on the part

of Concor. SIL set out various reasons resulting in delay in

completion of the said works including the delay for a period of

almost 6 months on the part of Concor in deciding the supervising

agency; design and drawings submitted to the Sr. DTSE Ajmer had

not yet been approved; and station building for signalling and

telecommunication need had not been handed over as yet. It claims

that in the circumstances, it sought a short closure of the contract in

question but did not receive any response to the request. It claims that

in order to avoid forfeiture of the security deposit and earnest money

deposit, SIL sought extension of the contract up to 31.03.2019.