Bombay High Court
Das Offshore Limiteddas Offshore ... vs Military Engineer Services on 9 June, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
(501)CARBP-15375-2023.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION(L) NO.15375 OF 2023
Das Offshore Limited as Offshore ]
Through its Authorized Officer
Abhishek Inamdar ] .. Petitioner
vs.
Military Engineer Services ] .. Respondent
Mr.Prathamesh Kamat a/w Nakul Jain, Mridul Sharma and Poonam Shrivastav i/b MS Legal for Petitioner.
Mr.Sanjay Gunjkar i/b Niranjan Shimpi for Respondent No.1.
CORAM : BHARATI DANGRE, J DATE : 9th June, 2023.
P.C. 1] The Petition is circulated urgently by mentioning the same with submission that Respondent No.1 has invoked the bank guarantee on 07.06.2023, and it is likely to be encashed within a day or two.
While granting production, I had directed the learned counsel that notice should be served upon Respondent Nos.1 and 2, before any relief sought for can be considered. Accordingly, notice has been served upon the contesting Respondent no.1 and Affidavit of service is tendered by the learned counsel and the same is taken on record.
2] Notice being served on Respondent No.1, learned counsel 1/3 ::: Uploaded on - 09/06/2023 ::: Downloaded on - 10/06/2023 17:12:39 ::: (501)CARBP-15375-2023.doc Mr.Shimpi is engaged, but since it is informed by the proxy counsel Sanjay Gunjkar appearing on his behalf that he has left the court premises, he request that the mater shall be listed on Monday.
None present for Respondent No.2 despite service.
3] The learned counsel would submit that Respondent No.1 had invited a tender, pursuant to which the petitioner has submitted his tender, which was accepted and work of provision of deficient trainee officers single living accommodation and mess at INS Hamla was allotted to him. The allocation of the work is subject to the condition of furnishing unconditional and irrevocable bank guarantee which was accordingly submitted.
The learned counsel would submit that the notice inviting tender expected the work to be completed within a period of 24 months from the date of award of the contract. The site was handed over to the Petitioner on 15.11.2021 and the soil testing report for carrying out necessary work was submitted on 24.03.2022. Thereafter, certain instructions were received from the Respondent No.1 to the Petitioner to dig upto 5 meters for conducting soil testing.
By a communication dated 21.02.2023, the Petitioner was intimated that the re-verification of the first STE report was submitted to the office on 08.04.2023. The period of work was specifically mentioned as 290 days i.e. till 21.01.2024 and the communication indicated that the said period shall be dealt as specific condition no.9 which shall be dealt as specified in condition No.9 of the General Conditions of contract.
4] The very same communication clearly stipulate that extension of time without Limited Damages shall be granted as discretion of the 2/3 ::: Uploaded on - 09/06/2023 ::: Downloaded on - 10/06/2023 17:12:39 ::: (501)CARBP-15375-2023.doc officer. However, increasing contract price should not be granted as essential or not part of the contract agreement. In the wake of the aforesaid communication, prima facie, it appears that in the wake of the soil testing report being submitted at the belated stage, the decision was taken to recommence the work and, accordingly, a period of 290 days thereafter was counted till 21/01/2024.
When the letter addressed to the respondent No.2-Bank, which is placed on record as Exh.J dated 07.06.2023 is perused, it has recorded that the bank has undertaken to pay on demand the amount mentioned in the bank guarantee and that amount claimed is by way of loss or damage caused to or suppose to cause in breach of contract on any terms of the conditions contained in the contract agreement.
The reasons contained in the said document are exactly contrary to the reasons stated in the communication dated 21/02/2023, where the period of 290 days has been intimated to be computed upto 21/01/2024 and since the period has not come to an end, it cannot be said that there is any breach of the contract.
5] In absence of the respondent to clarify the aforesaid version, it is necessary to grant ad-interim relief, by directing the respondent bank not to encash the bank guarantee till the next date of hearing.
The aforesaid order shall be communicated to all concerned. Re-notify to 14/06/2023.
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