Delhi District Court
M/S Airef Engineers Pvt. Ltd vs M/S Airport Authority Of India Ltd on 27 April, 2018
IN THE COURT OF SH SONU AGNIHOTRI
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 8491/16
M/S AIREF ENGINEERS PVT. LTD.
117, Tagore Park,
New Delhi09
Through Its Director Mr. Rajesh Monga
.......... Plaintiff
Versus
1.M/S AIRPORT AUTHORITY OF INDIA LTD.
10, Safdarjung Airport, Rajiv Gandhi Bhawan, New Delhi110 003.
2. M/S AIRPORT AUTHORITY OF INDIA LTD.
Operational Offices, Rangpuri, Gurgaon Road, New Delhi37.
......... Defendants SUIT FOR RECOVERY OF AMOUNT OF RS.13,18,090/ (THIRTEEN LACS EIGHTEEN THOUSAND AND NINETY ONLY) WITH PENDENTE LITE AND FUTURE INTEREST
(a) Date of institution : 03.08.2015
(b) Date when judgment reserved : 07.03.2018
(c) Date of Judgment : 27.04.2018 CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 1/21 JUDGMENT:
1. Vide this judgment, I shall dispose of present suit filed by plaintiff against defendants for recovery of amount of Rs. 13,180,90/ with pendente lite and future interest.
2. Brief facts as averred in the plaint are that plaintiff is a private limited company duly incorporated under the Companies Act. It is stated that plaintiff is an Engineering Contractor duly enrolled with defendants for carrying out the contracts. It is stated that Mr. Rajesh Monga, Director is duly authorized to institute, sign, file, verify, plead and pursue case on behalf of plaintiff company vide resolution dated 29.01.2009.
2.1 It is stated that defendant is statutory authority which invited tenders for construction work of "Indian Aviation Academy Hostel Block" at Vasant Kunj, New Delhi.
2.2 It is stated that present matter pertains to illegal encashment of Bank Guarantee bearing No. 07540001114 dated 23.04.2014 furnished in favour of defendants by defendants for construction work of "Indian Aviation Academy Hostel Block". 2.3 It is stated that plaintiff tendered for construction work of Indian Aviation Academy and Hostel Block at Vasant Kunj, New Delhi. It is stated that alongwith tender, plaintiff submitted bank guarantee bearing no. 07540001114 dated 23.04.2014 for sum of CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 2/21 Rs. 13,18,090/ in favour of defendants. It is stated that obligations of plaintiff as per Bank Guarantee were as follows:
1. If after tender opening the contractor withdraws, his tender during the period of validity of tender including extended validity of tender specified in the form of tender;
2. If the contractor having been notified the acceptance of the tender by the Engineer in charge:
a. Fails or refuses to execute the form of agreement in accordance with the instructions to the contractor, if required or b. Fails or refuses to furnish the performance guarantee, in accordance with the provisions of the tender documents and instructions to contractor, or c. Fails or refuses to start the work, in accordance with the provisions of the contract and instructions to the contractor, or d. Fails to refuses to submit fresh bank guarantee of an equal amounts of his bank guarantee, against security deposits after award of contract.
2.4 It is stated that plaintiff agreed to furnish bank guarantee pursuant to above conditions. It is stated that plaintiff never withdrew itself after opening of tender documents nor plaintiff had been notified of acceptance of his tender by defendants. It is stated that plaintiff never failed or refused to execute any agreement or received any instructions from defendants or failed or refused to furnish performance guarantee as per tender documents. It is stated that plaintiff never failed or refused to start work as it has never CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 3/21 been awarded/assigned to it or never failed or refused to submit fresh bank guarantee after award of the contract. 2.5 It is stated that vide letter dated 11.06.2014 while scrutinizing technical bid, defendant made certain observations and plaintiff duly replied to said observations vide letter dated 16.06.2014.
2.6 It is stated that vide letter dated 02.07.02014, defendants specifically said that no revision in price shall be allowed. It is stated that plaintiff vide letter dated 05.07.2014 attached technical data to fulfill defendant's requirements.
2.7 It is stated that vide letter dated 14.08.2014, defendants asked plaintiff to meet defendant's officials personally on 20.08.2014 and vide letter dated 21.08.2014, plaintiff confirmed that it had not considered service tax in its quoted prices. However, it was specifically stated that if service tax becomes applicable during currency of subject work, it will borne by plaintiff without any extra costs to defendants.
2.8 It is stated that despite fulfilling requirements, defendants could not take decision of awarding work to plaintiff or to anyone else as well.
2.9 It is stated that vide letter dated 29.09.2014, defendants requested plaintiff to extend validity of offer of plaintiff upto 31.10.2014. It is stated that vide letter dated 13.10.2014, plaintiff informed defendants that due to escalation in market prices, it was not feasible for plaintiff to extend validity of its bid in question. It is CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 4/21 stated that plaintiff put certain conditions viz accepting the 'Trane Make Chiller' etc but defendants had not agreed to the conditions put forth by plaintiff and therefore validity of bid of plaintiff cannot be treated as extended.
2.10 It is stated that neither contract was awarded to plaintiff nor defendants have any intention of doing this. It is stated that due to delay on part of defendants in taking decision of awarding contract, is was not possible for plaintiff to carry out work at quoted prices due to escalation in prices of goods/material in the market. It is stated that vide letter dated 01.02.2015, plaintiff requested defendants to release bank guarantee.
2.11 It is stated that bank guarantee could not have been invoked by defendants for any reason and also for non acceptance of tender by defendants on one hand and non extension of period of validity by plaintiff. It is stated that hence agreement did not conclude.
2.12 It is stated that defendants illegally encashed bank guarantee given by plaintiff. It is stated that despite repeated requests and personal visits of plaintiff, defendants did not make payment of money of bank guarantee to plaintiff. 2.13 It is stated that plaintiff issued legal notice dated 01.06.2015 calling upon defendants to refund amount of bank guarantee but despite receipt of said notice, defendant neither replied nor complied with said notice till date. Hence, present suit.CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 5/21
2.14 Plaintiffs have prayed for passing a decree for sum of Rs.
13,18,090/ in favour of plaintiff and against defendants with interest @ Rs. 24% per annum w.e.f. 17.03.2015 when bank guarantee was encashed till realization.
3. Defendant contested the suit by filing Written Statement and took some preliminary objections.
3.1. It is stated that defendants issued notice inviting tender for construction of Indian Aviation Academy & Hostel Block at Vasant Kunj operation and AICMC for high side and low side of air conditioning systems in year 2014. It is stated that plaintiff voluntarily submitted his tender for this work. It is stated that in compliance of pre requisites for submission of tender, plaintiff submitted earnest money of Rs. 13,18,090/by way of bank guarantee in favour of defendants. It is stated that vide letter dated 23.04.2014, defendants were authorized to encash bank guarantee in discharge of payments being made to defendants by plaintiff. 3.2. It is stated that plaintiff while submitting his tender accepted all conditions of AAI tender documents in entirety and unconditionally. It is stated that plaintiff undertook that plaintiff will abide by terms and provisions of conditions of contract and provisions contained in notice inviting tender and that it was further certified that plaintiff has not stipulated any condition in tender in envelops B and C. It is stated that in case any conditions were found in envelops B and C, earnest money was to be forfeited.
CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 6/213.3. It is stated that envelop1 for pre qualification was opened on 09.05.2014 and after opening pre qualification bid, technical bid was opened but plaintiff failed to comply with technical requirements as specified in notice inviting tender/tender documents given by AAI. It is stated that clarification with regard to technical bid was called from plaintiff vide letter dated 11.06.2014 and an opportunity was given to plaintiff to submit technical data/technical requirements as per NIT conditions without any change in financial bid submitted by plaintiff. It is stated that it was further mentioned that if said conditions are not fulfilled by plaintiff, then his bid would be rejected.
3.4. It is stated that plaintiff willingly, consciously and voluntarily submitted technical data as per requirements mentioned in letter dated 02.07.2014 issued by AAI and thereby unconditionally accepted terms of tender document and gave its consent for opening financial bid.
3.5. It is stated that after unconditional acceptance of technical requirements as mentioned in tender documents by plaintiff, financial bid of plaintiff was opened whereupon it was noticed that as per requirements of tender document, service tax has not been quoted separately in price bid submitted. It is stated that with regard to the same, meeting was held for by defendants and in pursuance of the said meeting, plaintiff issued letter dated 21.08.2014 wherein plaintiff mentioned that service tax is not quoted in price list but however if same becomes applicable during currency of subject CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 7/21 work, it will be borne by plaintiff without any extra costs to AAI but that as per requirement of tender document, service tax component was to be mentioned separately as per Government Guidelines.
3.6. It is stated that despite repeated requests by defendants to plaintiff to specify service tax component separately as per requirement of tender document, plaintiff failed to fulfill the conditions of contract.
3.7. It is stated that upon failure of plaintiff to comply with conditions of contract within period of 90 days, an opportunity was given to plaintiff to comply with said requirements after extending his validity of tender. However, upon failure of plaintiff to abide by the conditions of tender document, tender submitted by plaintiff was rejected and earnest money deposited by plaintiff was forfeited after issuance of show cause notice to plaintiff. 3.8. It is stated that earnest money deposit has been forfeited on account of failure of plaintiff to accept tender conditions unconditionally and on account of undertaking given by plaintiff that in case any condition is raised in envelop B or C, tender bid submitted by plaintiff would be rejected and earnest money deposit would be forfeited. It is stated that as per terms of bank guarantee, defendants were entitled to forfeit earnest money deposit by encashing bank guarantee.
3.9. It is stated that on account of failure of plaintiff to accept tender conditions unconditionally even after assurance by plaintiff, CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 8/21 finalization of tender was unreasonably delayed on account of which defendants suffered huge losses and department was forced to invite fresh tender which results in incurring further costs apart from costs already incurred in the present tender. 3.10. On reply on merits, contents of preliminary objections have been requested to be treated as part of reply on merits. 3.11. It is submitted that plaintiff agreeing with terms and conditions of notice inviting tender submitted his bid and alongwith bid submitted earnest money deposit of Rs. 13,18,090/ by way of bank guarantee in favour of defendants. It is stated that plaintiff has accepted that in case any conditions raised by defendants are not fulfilled, then his tender would be rejected and earnest money deposited would be forfeited. It is stated that plaintiff upon opening of envelop B raised condition with regard to technical specifications of chiller, however on denial of technical data of chillers as submitted by plaintiff, plaintiff duly accepted technical specifications as mentioned in NIT document without any price revision. It is stated that it was upon assurance of plaintiff that his bid for technical specification was accepted and thereafter on his assurance to comply with all conditions, his financial bid was opened. It is stated that plaintiff quoted lowest bid but failed to quote service tax component separately as per NIT conditions and also failed to agree with method in which service tax was to be collected as mentioned in the tender document and raised conditions with respect to method of charging service tax. It is CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 9/21 stated that on account of failure of plaintiff to submit unconditional tender and on account of delay caused by plaintiff in replying to letter issued by defendants, earnest money was deducted as per terms of contract. Rest of contents of plaint have been denied in the written statement.
3.12. Defendant has prayed for dismissal of suit.
4. Replication to Written Statement of defendant was filed by plaintiff wherein averments as made in the plaint were reiterated. Some preliminary submissions were made in the replication containing summary of averments of plaintiff. In response to preliminary objections, it has been denied that plaintiff failed to comply with technical requirements as specified in notice inviting tender /tender documents given by defendants. It is stated that had that been the case, defendants were well within their rights to reject plaintiff's bid and not to open financial bid. It is stated that defendants have concealed facts as plaintiff during pre tender stage asked for queries dated 30.04.2014 which stood clarified by defendants vide corrigendum 2. It is stated that plaintiff has also complied with instructions of defendants as per corrigendum 2. It is stated that for invoking bank guarantee, defendants are bound by terms and conditions of bank guarantee. It is stated that defendants failed to aver that which clause of bank guarantee has been violated. It is stated that if tender documents required that service tax component has to be mentioned separately, tender of plaintiff ought to have been rejected. It is stated that there has been no violation of contract /tender condition on part of CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 10/21 defendants in respect of envelops B and C.
5. On reply on merits, contents of plaint have been reiterated. It is stated that plaintiff never agreed that earnest money can be forfeited in contravention to clauses of contract. It is stated that defendants does not specify as to which NIT condition it is refereeing to. It has been prayed to decree the suit.
6. From pleadings of the parties, following issues were framed for adjudication vide order dated 01.03.2016:
1. Whether the suit is bad for misjoinder of parties? OPD
2. Whether the earnest money of the plaintiff has been forfeited on account of failure of the plaintiff to accept the tender conditions?OPD
3. Whether the plaintiff is entitled to recovery of suit amount?OPP
4. Whether the plaintiff is entitled to interest, if so, at what rate and for which period?OPP
5. Relief.
7. In order to prove its case, plaintiff examined Mr. Rajesh Monga, AR as PW1 who exhibited his affidavit in evidence vide Ex. PW1/A wherein he reiterated the averments made in plaint. During his deposition, he also relied upon and exhibited following documents: CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 11/21 Ex. PW1/1 : Attested copy of Extract of minutes of meeting dated 06.07.2015 of BOD of plaintiff company in favour of PW1 Ex. PW1/2 : Queries raised by plaintiff with regard to tender conditions alongiwth tender conditions Ex. PW1/3 : Letter dated 16.05.2014 and Bid (colly) process report details Ex. PW1/4 : Letter dated 22.05.2014 written on behalf of plaintiff to defendants Ex. PW1/5 : Bank guarantee documents dated (colly) 23.04.2014 Ex. PW1/6 : Letter dated 11.06.2014 written on (colly) behalf of defendants to plaintiff and reply of plaintiff dated 16.06.2014 thereto Ex. PW1/7 : Letter dated 02.07.2014 written on (colly) behalf of defendants to plaintiff and reply of plaintiff thereto dated 05.07.2014 Ex. PW1/8 : Letter dated 14.08.2014 written on (colly) behalf of defendants to plaintiff and reply written on behalf of plaintiff dated 21.08.2014 Ex. PW1/9 : Letter dated 29.09.2014 written on (colly) behalf of defendants to plaintiff and reply thereto by plaintiff dated 13.10.2014 Ex. PW1/10 : Letter dated 10.12.2014 written on behalf of defendants to plaintiff Ex. PW1/11 : Letter dated 19.12.2014 written on CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 12/21 behalf of plaintiff to defendants Ex. PW1/12 : Letter dated 06.01.2015 written on behalf of plaintiff to defendants Ex. PW1/13 : Letter dated 12.02.2015 written on behalf of defendants to plaintiff Ex. PW1/14 : Letter dated 20.02.2015 written on behalf of plaintiff to defendants Ex. PW1/15 : Letter dated 16.03.2015 written on (colly) behalf of defendants to Oriental Bank of Commerce and letter dated 17.03.2015 written on behalf of defendants to plaintiff Ex. PW1/16 : Letter dated 26.03.2015 written on behalf of plaintiff to defendants Ex. PW1/17 : Copy of legal notice dated 01.06.2015 given on behalf of plaintiff to defendants
8. Defendants on the other hand examined Mr. Kamal Kumar Kataria as DW1 who exhibited his affidavit in evidence vide Ex. DW1/A. He supported stand of defendants. During his deposition, he relied upon the following documents i.e.: Ex. D1 : Letter dated 23.04.2014 written on behalf of plaintiff to Manager OBC with regard to Bank Guarantee Ex. D2 : Letter dated 29.04.2014 written on behalf of plaintiff to defendants Ex. D3 : Letter dated 16.06.2014 written on behalf of plaintiff to defendants CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 13/21 Ex. D4 : Letter dated 02.07.2014 written on behalf of defendants to plaintiff Ex. D5 : Letter dated 05.07.2014 written on behalf of plaintiff to defendants Ex. D6 : Letter dated 10.12.2014 written on behalf of defendants to plaintiff Ex. D7 : Letter dated 11.03.2015 written on behalf of defendants to plaintiff Ex. D8 : Tender documents
9. I have heard final arguments addressed by respective counsels and perused the record including written submissions filed on behalf of both the parties and judgments filed on behalf of plaintiff.
10. On the basis of material available on record my issuewise findings are as under:
ISSUE No. 1Whether the suit is bad for misjoinder of parties?OPD Onus to prove this issue was upon defendants.
Defendants in their preliminary submissions made in their written statement have taken plea that present suit is liable to be dismissed on account of failure of plaintiff to make Oriental Bank of Commerce as party to present suit being necessary party for adjudication of present case.
Defendants in their evidence through DW1 are silent in this regard in affidavit of DW1. No specific arguments were addressed by counsel for defendants in this regard.CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 14/21
Oriental Bank of Commerce as per Ex. PW1/5 (Colly) issued Bank Guarantee Bond at request of plaintiff towards payment of earnest money by plaintiff to defendants as contained in Ex. PW1/ 2 i.e. containing tender conditions. It is not case of plaintiff or defendants that OBC was to do something with the tender process in which plaintiff participated and which was issued on behalf of defendants. At the best, official from OBC could have been witness in the case in case encashment of Bank Guarantee by defendants was disputed by defendants but defendants in their written statement have clearly stated that earnest money was forfeited as per terms of NIT conditions and on account of delay caused due to plaintiff. In these circumstances, I am of the view that Oriental Bank of Commerce was not a necessary party to present suit and defendants have failed to discharge their burden qua this issue. Accordingly, this issue is decided in favour of plaintiff and against defendants.ISSUES NO. 2, 3 & 4
Whether the earnest money of the plaintiff has been forfeited on account of failure of the plaintiff to accept the tender conditions?OPD Whether the plaintiff is entitled to recovery of suit amount? OPP Whether the plaintiff is entitled to interest, if so, at what rate CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 15/21 and for which period?OPP All these issues are being taken up together as they are interconnected and finding on one issue shall have bearing upon others. Onus to prove issue no. 2 was upon defendants whereas onus to prove issues no. 3 and 4 was upon plaintiff.
Before proceeding further, it is pertinent to mention that no document filed by either plaintiff or defendants were disputed as to mode or manner of proof by either of the parties and rather some common documents were filed by both the parties. Ex. D8 (in parimataria with Ex. PW1/2 which contains some extra documents) contains conditions of tender invited by defendants for construction of Indian Aviation Academy and Hostel Block at Vasant Kunj, New Delhi. As per condition no. 24 of notice inviting ETender, tender for the work was to remain open for acceptance for period of 90 days from date of opening of financial bid. It was laid down that if any tenderer withdraws his tender before the said period or makes any modifications in the terms and conditions of the tender which are not acceptable to the department, then Airports Authority of India shall without prejudice to any other right or remedy, be at liberty to forfeit the full said earnest money absolutely. Conditions as mentioned in Ex. D8 for obligation in case of earnest money being furnished in form of Bank Guarantee are as below:
1) If after tender opening the contractor withdraws, his tender during the period of validity of tender (including extended validity of CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 16/21 tender) specified in the form of tender;
2) If the contractor having been notified of the acceptance of his tender by the Engineer InCharge;
a) Fails or refuses to execute the form of agreement in accordance with the instructions to contractor, if required: OR
b) Fails or refuses to furnish the Performance Guarantee in accordance with the provision of tender document and instructions to the contractor, OR
c) Fails or refuses to start the work, in accordance with the provisions of the contract and instructions to contractor, OR
d) Fails or refuses to submit fresh Bank Guarantee of an equal amount of this Bank Guarantee, against security deposit after award of contract.
In present case, there is as such no document proved on record by either party as to till when bid was to remain open. Ex. PW1/9 (Colly) contains reference in this regard wherein defendants have asked plaintiff vide letter dated 29.09.2014 to extend validity of its offer upto 31.10.2014 which was refused by plaintiff vide letter dated 13.10.2014. Plaintiff vide this reply, agreed to extend validity only if defendants accept Trane Make Chiller which in this case was not agreed to by defendants as per letter dated 10.12.2014 (Ex. PW1/10). So clear date as such of the period for which bid was to remain open has not been proved on record by either of the parties by way of documentary evidence. However, it has been deposed by PW1 in his affidavit that financial bid opening date was 11.07.2014 with CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 17/21 validity period of 90 days which expired on 10.10.2014. PW1 has not been crossexamined by defendants qua this aspect meaning thereby that deposition of PW1 in this regard stands proved. So period of consideration for the purpose of applying conditions of tender for the purpose of forfeiting Bank Guarantee stands proved to be uptill 10.10.2014.
11. It was argued on behalf of defendants that plaintiff put condition before acceptance of technical bid that it can do subject work by using Trane Make Chiller (vide letter dated 16.06.2014 Ex. D3/ part of Ex. PW1/6 Colly) which was rejected by defendants vide letter dated 02.07.2014 (Ex. D4/part of Ex. PW1/7 Colly) and ultimately plaintiff agreed to comply with this aspect of the matter vide letter dated 05.07.2014 (Ex. D5/part of Ex. PW1/7 Colly). It was argued that earnest money was interalia forfeited on this ground. I am of the view that though plaintiff tried to put conditions /modification in terms and conditions of tender but ultimately, conditions as required by defendants was agreed to be fulfilled by plaintiff vide letter dated 05.07.2014 and that is why financial bid was opened and thus, it cannot be a ground for forfeiting earnest money in form of Bank Guarantee.
Second aspect argued on behalf of defendants for forfeiting Bank Guarantee furnished on behalf of plaintiff was that plaintiff failed to adhere condition in Notice Inviting Tender (Ex. D8) that plaintiff was to clearly indicate service tax component as per Government Guidelines that would be charged for services provided to CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 18/21 defendants. Counsel for defendants argued that as per Ex. PW1/8 (Colly) vide letter dated 21.08.2014, it has been accepted by plaintiff that it has not considered service tax in the quoted prices. Counsel for plaintiff to this argument of counsel for defendants submitted that though plaintiff did not indicate service tax component separately but as per letter dated 21.08.2014{part of Ex. PW1/8 (colly)}, plaintiff undertook that if service tax become applicable during currency of subject work, the same shall be borne by plaintiff without any extra costs to AAI /defendants. I am of the view that though plaintiff as per admission in letter dated 21.08.2014 did not quote service tax component separately and tried to modify conditions of tender but in case the same were not agreeable to defendants, defendants should have rejected bid of plaintiff within 90 days from the date of opening of financial bid as per clause 24 of Notice Inviting Tender which period in this case stands concluded on 10.10.2014 as discussed above but as per letter dated 17.03.2015 {part of Ex. PW1/15 (colly)}, tender of plaintiff was rejected only vide letter dated 17.03.2015 i.e. much after period of financial bid closed.
Further, as per the conditions as contained in Notice Inviting Tender for encashment of Bank Guarantee as discussed above, Bank Guarantee could have been encashed only on happening of certain contingencies but in this case, it has not been proved by defendants on record that plaintiff/contractor has withdrawn his tender during validity of tender period nor it has been proved that tender of CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 19/21 plaintiff was accepted by EngineerInCharge and plaintiff failed to carry out conditions no. 2 (a) to (d) as mentioned above. In these circumstances, I am of the view that defendants have failed to discharge their burden qua issue no. 2 and issue no. 2 is therefore decided in favour of plaintiff and against defendants. In view of issue no. 2 being decided against defendants, issue no. 3 is decided in favour of plaintiff and against defendants. No evidence with regard to rate of interest which should be granted to plaintiff on due amount due has been led by plaintiff but keeping in view the fact that transaction in question was commercial in nature, I am of the view that simple interest @ 12% per annum on due amount from date of filing of present suit till pronouncement of judgment shall meet ends of justice. Further, simple interest on due amount @ 9 % per annum is granted from date of judgment till realization. Issue no. 4 is decided accordingly.
RELIEF In view of my findings with regard to issue no. 2 and 3, it is held that plaintiff is entitled to recovery of amount of Rs. 13,18,090/ from defendants. In view of finding with regard to issue no. 4, simple interest @ 12% per annum on this amount from date of filing of present suit till pronouncement of judgment is granted. Further, simple interest on due amount @ 9 % per annum is granted from date of judgment till realization. Costs of the suit are also granted in favour of plaintiff and against defendants.
CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 20/21DecreeSheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (Sonu Agnihotri) on 27th Day of April, 2018 Addl. District Judge 02 (SouthEast) CS No. 8491/16 M/s Airef Engineers Pvt. Ltd. Vs. M/s Airport Authority of India Ltd. & Anr Page No. 21/21