Himachal Pradesh High Court
M/S Garg Sons Estate Promoters Pvt. Ltd. vs . State Of H.P. on 25 July, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
M/s Garg Sons Estate Promoters Pvt. Ltd. vs. State of H.P. .
Arb. Case No. 92 of 2022.
25.07.2022 Present: Mr. Suneet Geol, Advocate, for the plaintiff.
Mr. Hamant Vaid, Additional Advocate General, for the respondents-State.
Notice. Mr. Hemant Vaid, learned Additional Advocate General, waives service and accepts notice on behalf of the respondents-State and seeks two weeks' time to file reply. Be filed within two weeks, as prayed for.
Petitioner was awarded work of "M/T Matiana Bargaon road km. 0/0 to 25/810 under world bank assisted rural road Project-II (Trench-I) (SH: Improvement of formation deficiency, c/o regaining wall RCC hume pipe culverts, slab culverts, PCC drain, PCC parapets, M/T & Logo sign boards & km stone etc & 5 years mtc after completion of work under Package No.: HP-09-0324) Regarding Reduction in Performance Security & Release of Retention Money)." The work was awarded to the petitioner on 7.1.2015. Time stipulated for work under agreement was one year. A formal agreement having arbitration clause was executed between the parties. The petitioner has furnished performance guarantee in the form of bank guarantee. The work was delayed in the decision making process with regard to the procurement of cement of a particular quality and drawings of culverts were supplied belatedly and decision with regard to 3672 mts. was not taken within time since the CBR value of the soil was inadequate. The soil tests were conducted by the ::: Downloaded on - 26/07/2022 20:02:56 :::CIS -2- Central Road Research Institute (CRRI) and after receipt of report .
therefrom, respondents could not take any decision on the same and rest of the work was completed on 30.6.2017 and till then respondents could not convey any decision with respect to 3672 mts. The maintenance period of the works executed by the petitioner commenced w.e.f. 1.7.2017 even for the left out portion of 3672 mts. The maintenance bills were raised by the petitioner on 18.6.2021 but the same have not been cleared till date. Petitioner, invoking arbitration clause of the agreement has issued request for appointment of Arbitrator vide communication dated 5.4.2022 (Annexure P-8) to the Chief Engineer as provided in the agreement but till date no action has been taken in this regard.
It is also the case of the petitioner that in view of letter/Office Oder dated 12.11.2020 issued by the Ministry of Finance, Government of India, petitioner had requested the respondents to reduce performance security from 5% to 3% in terms of notification/order of the Government of India dated 16.2.2021 but instead of accepting the prayer of the petitioner, respondents have communicated their intention to encash the bank guarantees furnished by the petitioner.
A prima facie case is made out for passing ad-interim order in favour of the petitioner and, therefore, till the next date of hearing the respondents are restrained from invoking bank guarantees bearing No. 0506217BG0000343, amounting to `28,98,000/- valid up to 26.7.2023; No. 0506217BG0000359, ::: Downloaded on - 26/07/2022 20:02:56 :::CIS -3- amounting to `21,26,100/- valid up to 17.11.2013; No. .
0506220BG0000604, amounting to `4,60,000/- valid up to 17.11.2023; and No. 0506217BG0000342, amounting to `7,58,000/- valid up to 26.1.2022.
List after two weeks.
July 25, 2022 (Vivek Singh Thakur),
(PK) Judge.
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