Bangalore District Court
The Tata Power Company Limited vs Bangalore Electricity Supply Company on 30 January, 2024
48
Com.A.A.No.175/2023
KABC170009912023
IN THE COURT OF LXXXII ADDL. CITY CIVIL & SESSIONS
JUDGE,AT BENGALURU (CCH.83)
THIS THE 30th DAY OF JANUARY 2024.
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. A.A. No. 175/2023
BETWEEN:
The Tata Power Company
Limited, a company validly
existing under the
provisions of Indian
Companies Act, 1919
Having its registered office
at Bombay House, 24,
Homi Mody Street Mumbai-
400 001
: APPLICANT
(Represented by M.P.K.,
Advocate)
AND
Bangalore Electricity
Supply Company Limited A
48
Com.A.A.No.175/2023
Company validly existing
under the provisions of
The Companies Act, 1956
Having its registered office
at: BESCOM, K.R.Circle,
Bangalore-560001
: RESPONDENT
(Represented by G.M.-
Advocate).
ORDERS
This application is filed U/s 9 (1)(ii)(d) and (e) of the
Arbitration & Conciliation Act, 1996 Read With Rule 9 of the
High Court of Karnataka Arbitration. The applicant prays that,
pending initiation, during Arbitral proceedings Restrain the
respondent, its agents, assigns, authorised representatives, etc.
from invoking and encashing the Bank Guarantee having
reference No.039NDLG00101521 amounting to Rs.18,03,850/-
issued by the applicant to the respondent
2. The Brief facts of the Petitioner are as follows:-
The present application pertains to the project management
consultancy agreement dated 07.09.2020 executed between
the Tata Power Company Ltd ("TPCL"/ "Applicant") and
Bangalore Electricity Supply Company Ltd. ("BESCOM"/
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Com.A.A.No.175/2023
"respondent"), the detailed work award having reference No.
BESCOM/CGM(Proj)/DGM-3/AGM/BC- 14/20-21/3065-74 dated
10.09.2020 ("DWA") issued by BESCOM in favour of TPCL and
the Bank Guarantee bearing No.0393NDLG00101521 dated
28.08.2020 furnished by TPCL to BESCOM. On 25.04.2020,
BESCOM issued a 'Request for Proposal' having Tender
reference BESCOM/CGM (P)/UG/BMAZ/ JAL/BC-14/20-21/PMC-12
dated 25.04.2020 ("RFP"/ "Tender") which included the General
Conditions of Contract ("GCC") and Special Conditions of
Contract ("SCC") for appointing Project Management Consultant
("PMC") for construction supervision and monitoring of work of
conversion of 11kv/LT overhead line into UG/AB cable and laying
of optic fiber cable along with UG cable and other capex works
on firm price basis. The applicant applied for award of the said
tender and on 14.08.2020, BESCOM issued a letter of intent
awarding the tender to the applicant and appointing the
applicant as per the PMC for, inter-alia, the Jalahalli Division of
BESCOM ("Project Site"). In compliance of Clause 8.1 of the
SCC, the applicant had furnished the Bank Guarantee bearing
No.0393NDLG00101521 dated 28.08.2020 of a sum of
Rs.18,03,850/- to the respondent towards guarantee for the
performance. Accordingly, the PMC Agreement was signed
between the parties herein and the DWA for the project site was
awarded by the respondent in favour of the applicant in this
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Com.A.A.No.175/2023
regard. The tenure of the engagement between the parties
herein for the project site was from 10.09.2020 to 09.09.2022,
i.e., for a period of 24 months, as per Clause 5 of the DWA and
Clause 9 of the PMC Agreement. As per the provisions of the
PMC Agreement and DWA, TPCL had deployed resources to the
Project Site. TPCL had stationed 12 skilled workers/manpower at
the Project Site. The applicant, at all times, carried out its
mandate under the Consultancy Agreements and provided all
the services as required thereunder at the Project Site without
any delay or demur. In fact, in the interest of Project, the
applicant had provided services/carried out activities in addition
to its roles and responsibilities entrusted to it under the
Consultancy Agreements. The applicant has also, at all times,
kept the respondent updated and abreast of the developments
and work progress at the Project Site. Despite the applicant
fulfilling its mandate/obligations in terms of the Consultancy
Agreements, the respondent has been in breach of its material
obligations under the same. There have been inordinate delays
in the award of work to turnkey contractors, shutdown issuance,
postponement due to petty item finalisation in bill of quantity
and unavailability of materials at turn key contract stores,
BESCOM, due to which a large portion of works at the Project
Site could not be completed till date. The respondent has
defaulted in its obligation of awarding the work valued at
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Com.A.A.No.175/2023
Rs.3,60,00,000/- to the applicant during the tenure of the
engagement between the parties in the Jalahalli project.
Despite the applicant carrying out all its obligations under the
Consultancy Agreements, there have been significant delays
and/or failure on the part of the respondent in clearing the
outstanding invoices of the applicant. The respondent, despite
the regular follow up by the applicant requesting for clearing of
its dues, has failed to clear the dues till date. Due to the above
reasons, none of which are attributable to the applicant, the
project work could not be compelled within the tenure of the
PMC Agreement and the DWA. Such material breaches by the
respondent which led to failure to complete the work within the
24 months, has adversely affected the interests of the
applicant. Despite the failure of BESCOM as mentioned above,
the applicant had to keep the resources at the Project Site from
10.09.2020 till 12.04.2023, until which date it continued to
perform its other obligations under the Consultancy
Agreements. Consequently, the applicant has incurred costs of
approximately Rs.3,50,00,000/- which had a huge impact on the
cash flows of the applicant. Vide letter dated 11.02.2022, the
applicant demanded payment of pending dues, delayed by the
respondent even after 16 months from the date of signing of
the Consultancy Agreements, due to which the project was
becoming unviable. The applicant indicated that it would not be
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Com.A.A.No.175/2023
in a position to continue the project further if the payments
were not released on an immediate basis. Accordingly, the
applicant requested the respondent to immediately release the
outstanding payment, as set out under the DWA, to ensure the
continued financial viability of the project. The applicant
informed the respondent that in addition to its roles and
responsibilities entrusted to it under the consultancy
agreements, it had carried several other activities in interest of
project vide letter dated 11.02.2022.
The respondent, however, neither responded to the letter
dated 11.02.2022 nor cleared the dues owed to the applicant.
Thereafter, the applicant, after around 2 months, sent another
letter dated 13.05.2022 reiterating its demand for immediate
payment of the pending dues and indicated that due to non-
payment by the respondent, the project was becoming
unsustainable for the applicant. Further, the applicant informed
the respondent that due to slow project progress, its project
expenses had increased. On 22.08.2022, a meeting was
conducted among the parties herein and the agencies working
for the project. In the meeting, among other issues, the issue of
pending bills of the applicant was also discussed. The applicant
once again informed the respondent that the non-payment of
its invoices raised by the respondent was seriously affecting the
48
Com.A.A.No.175/2023
cash flows of the applicant. The tenure of 24 months of the
Consultancy Agreements expired on 09.09.2022. As on
09.09.2022, the respondent had only paid a sum of
Rs.51,00,000/-. However, in the interest of the project, the
applicant wrote to the respondent vide letter dated 09.09.2022
for extension of the period of engagement under the
Consultancy Agreements. In the said letter, the applicant
clarified the following:
(i) The total value of work for all three divisions/sites
awarded to the applicant in the 24 months tenure
was only Rs.7,40,00,000/- against the contract value
of Rs.10,20,00,000/-.
(ii) The major reason for non-completion of work in the
24 months period was inordinate delay in award of
work to turnkey contractors which had impacted the
schedule of the PMC Agreement for all the projects at
all the three sites, i.e., Koramangala, Peenya and
Jalahalli sites/divisions.
(iii) The other reasons were COVID 19 pandemic, right of
way issues for the network installation, delay in
shutdown issuance, postponement due to petty item
finalization in bill of quantity, unavailability of
materials at TKC stores.
(iv) None of the reasons for delay in completion of work
are attributable to the applicant.
(v) Irrespective of the delays, the applicant had a deploy
a total of 33 resources, full time throughout the 24
months tenure. Due to which the applicant had
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Com.A.A.No.175/2023
already incurred its full cost in those 24 months, but
corresponding revenue could not be realized due to
delay in award of projects and award of less work
against the commitment as per Consultancy
Agreements.
In the said letter dated 09.09.2022, the applicant also
informed the respondent that as per its estimation, the already
awarded work should get completed in another 12 months,
which would mean further costs incurred by the applicant.
Considering the past conduct of the respondent, the applicant
suggested to extend of the Consultancy Agreements for another
12 months on the following conditions:
(i) Milestone based payment as per the Consultancy
Agreements to be made to the applicant by the
respondent with the progress in the project in the
extended project period.
(ii) Additional work, apart from work already in progress,
if any to be allotted within two months of the date of
extension of the Consultancy Agreements so that the
same could get completed in an extended period of
12 months.
(iii) Payment of fixed monthly payment for the extended
period of the project, to cover the fixed cost for the
next twelve months.
(iv) Fixed charges per manmonth=[Work Order Value
(Rs.10.2 crores)] divided by [No. of resources as per
Work Order (33) x 24 months].
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Com.A.A.No.175/2023
(v) The shortage in PMC charges as per the difference
between the original estimated project value and final
awarded value, to be paid to the applicant on monthly
basis in equal installments during extended contract
period.
Once again, the respondent did not reply to the letter dated
09.09.2022. Thereafter, the applicant wrote to the respondent
vide letter dated 05.01.2023 once again requesting to consider
the suggestions given in the letter dated 09.09.2022 and
extend the Consultancy Agreements accordingly, it was also
clearly informed that until the extension of Consultancy
Agreements was not received by the applicant, it would not
accept any new job(s) at the site and viability of taking new
works would be evaluated on the basis of the respondent's
acceptance of terms and conditions of requested extension of
the Consultancy Agreements. The applicant further requested
the respondent to release the outstanding payment and provide
the approval for extension of projects within 15 days of
receiving the said letter, in absence of which the applicant
would not be in position to continue the project and it might
initiate withdrawal of manpower from site. As neither the
payment nor the extension was received from the respondent,
the applicant again wrote to the respondent vide letter dated
30.01.2023 requesting to release the outstanding payment.
The respondent did not respond to the said communications
48
Com.A.A.No.175/2023
dated 05.01.2023 and 30.01.2023 nor did it clear the
outstanding dues or send the approval of extension. From the
conduct of the respondent, it was clear to the applicant that the
respondent had no intention of paying the dues of the applicant
or extend the Consultancy Agreements on the fair and
reasonable terms and conditions suggested by the respondent.
Thus, the applicant ultimately sent a notice dated 16.02.2023 to
the respondent stating clearly that payments are overdue and
in view of the extant impasse caused by the respondent's
inaction and delayed payment, the applicant was no longer
seeking an extension under the Consultancy Agreement and
would be demobilizing its resources from the site within 30 days
from the date of the said notice. Only after the applicant had
clearly set out that it was no longer seeking an extension under
the Consultancy Agreements, the respondent, malafidely
attempted to extend the Consultancy Agreements till
09.09.2023. The respondent initially sent a letter dated
01.03.2023, wherein it unilaterally sought to extend the term of
the Consultancy Agreements from 10.09.2022 to 09.03.2023,
with no incremental payment for extension. Thereafter, the
respondent issued another letter dated 10.03.2023, wherein it
further sought to unilaterally extend the term of the
Consultancy Agreements from 10.03.2023 to 09.09.2023 with
no incremental payment for extension. Thereafter, the
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Com.A.A.No.175/2023
respondent issued another letter dated 10.03.2023, wherein it
further sought to unilaterally extend the term of the
Consultancy Agreements from 10.03.2023 to 09.09.2023 with
no incremental payment for extension. The respondent also
wrote to the applicant vide letter dated 17.03.2023, where
under, without clearing the dues of the applicant, the
respondent asked the applicant not to demobilize/withdraw the
resources of the applicant from the site.
In response to the letters dated 01.03.2023, 10.03.2023 and
17.03.2023 sent by the respondent, the applicant wrote to the
respondent on 12.04.2023 reiterating that with respect to the
Project Site, the Consultancy Agreements already stood
terminated and thus, the respondent was no longer entitled to
extend the Consultancy Agreements or direct the applicant not
to demobilize/withdraw the resources from the Project Site. The
applicant further requested that all the outstanding dues and
invoices of the applicant should be cleared by the respondent.
The applicant finally demobilize the resources from the Project
Site on 12.04.2023. Till the said date the total cost incurred by
the applicant in respect of all three divisions is
Rs.10,00,00,000/- and the total cost incurred by the applicant in
respect of Project Site is Rs.3,50,00,000/-. Till date the total
payment received from the respondent with respect to Project
48
Com.A.A.No.175/2023
Site is Rs.51,00,000/-. As the applicant has terminated the
Consultancy Agreements and demobilized the resources, due to
the actions/inactions of the respondent, the applicant strongly
apprehends that the respondent is in the process of
unjustifiably and illegally invoking and encashing the Bank
Guarantee furnished by the applicant. The applicant has at all
times complied with its obligations under the Consultancy
Agreements. It is in fact the respondent that hes failed to
comply with its obligations under the Consultancy Agreements
and failed to pay the applicant its dues under the raised
invoices, as per the terms of the Consultancy Agreement.
That Clause 18 of the DWA deals with Termination of
Contract by the respondent. Sub Clause (e) of the said Clause
provides for Liquidated Damages for Non-performance of
Consultant i.e., applicant.
Similarly, clause 45 of the PMC agreement stated that the
termination shall be as per Clause 2.7 of GCC, Clause 2.7.1 of
GCC read with SCC deals with termination by respondent. Sub
clause (e) of the said clause.
The aforesaid Clauses of DWA, PMC Agreement, GCC and
SCC are not applicable in the present case as (i) the DWA has
not been terminated by the respondent but by the applicant (ii)
the events mentioned in the said clause which entitles the
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Com.A.A.No.175/2023
respondent to invoke and/or encash the Bank Guarantee has
not arisen in the present case. There has not been any non-
compliance of the work or obligation under the Consultancy
Agreements or non-adherence of the provisions by the
applicant. Nor has the applicant failed to deploy the key and
sub key manpower or submit the report. Thus, the respondent is
not entitled to invoke and/or encash the Bank Guarantee under
the aforesaid clauses of DWA, PMC Agreement, GCC and SCC. It
is settled position of law that even in cases of unconditional or
unequivocal bank guarantees, a bank guarantee cannot be
invoked until the event given in the concerned contract for
invocation of Bank Guarantee arises. The applicant does not
owe any money to the respondent as it had duly complied with
its obligations. On the contrary, it is the respondent who owes
outstanding dues towards the work performed by the applicant
in respect of the Project Site. Further, there is no breach of any
obligation under the Consultancy Agreement on the part of the
applicant. The respondent is not legally or under the terms of
the Consultancy Agreements entitled to invoke and/or encash
the Bank Guarantee. The applicant is owed outstanding dues
from the respondent along with applicable interest. In addition,
thereto, the respondent is in possession of Bank Guarantee of a
sum of Rs.18,03,850/-. In the event, the rights of the applicant
are not enforced, and the apprehended invocation and/or
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Com.A.A.No.175/2023
encashment of the Bank Guarantee is not stayed, the applicant
shall face irreparable loss and injury. The applicant intends to
pursue its remedies under the Arbitration and Conciliation Act,
1996, as provided under the Clause 30 of the PMC Agreement
and Clause 20 of the DWA, by invoking the dispute resolution
mechanism, under the said Consultancy Agreements. Vide the
instant application, the applicant is seeking protection from the
coercive steps which may be taken by the respondent,
unjustifiably, illegally and in violation of the terms and
conditions of the Consultancy Agreements. If the present
application is not allowed and the respondent is allowed to
invoke and/or encash the Bank Guarantee in favour of the
applicant, then the CIBIL score of the applicant may also be
adversely impacted, which cannot be cured by any amount of
financial compensation. Further, the applicant is a reputed
company which is well-known to abide by and respect its
obligations. If the respondent is permitted to invoke and/or
encash the Bank Guarantee, it will adversely affect the hard
earned reputation and good will of the applicant, despite the
fact that the applicant has complied with its obligations under
the Consultancy Agreement and is at no fault. The balance of
convenience lies in the favour of the applicant and against the
respondent, since respondent has failed to perform its
obligations under the Consultancy Agreements. Hence this suit.
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Com.A.A.No.175/2023
3. The Respondent has filed statement of objections by stating
that it is based on the incorrect appreciation of the payment
terms. The payment terms clearly intertwind the payment of the
applicant with the turnkey contractors. Hence, as and when a
turnkey contractor would raise its invoice on completion of a
particular work, the said turnkey contractor will raise the invoice
and along with it the applicant was authorized to raise the
invoices. It may also be noted that when compared to peenya,
both Jalahalli and koramangala zones, had very little
development in terms of work on the ground. This fact has been
admitted by the applicant in various letters sent to the
Respondent. The applicant has abandoned the performance of
the PMC agreement and the DWA. The respondent had prepared
DPR and finalized the tenders as per the KTPP Act following the
direction given by Government of Karnataka and issued letter of
awards to various turnkey contractor to execute the work of
conversion of 11kV OH line into UG cable system, running new
feeder for bifurcation of load and conversion of LT oh line to UG/
AB cable system and laying of optic fiber along with UG cable in
BMAZ area. The respondent intended to engage the service of
PMC on division basis for the said work in the aspect of
supervision and monitoring, quality checks of works, assisting
the department officers to ensure adherence to quality
standards in the construction of works, verification and
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Com.A.A.No.175/2023
certification of bills and top avoid time and cost overrun.The
applicant applied for the tender and on 14.08.2020, respondent
issued of intent awarding the tender to applicant and appointing
the applicant as per the PMC, inter-alia, for Jalahalli division of
Respondent.
The applicant was entitled to payment as follows:
Stage-I: 60% of the consultancy contract amount was
payable on the completion of the individual work wise
basis by the concerned turnkey contractor and after
obtaining the approval from the electrical inspectorate
BESCOM for the work subject to certification from SEE,
MPD and TCD, Corporate office, BESCOM.
Stage-II : 30% of the consultancy contract amount was
payable upon the commissioning of the individual work
wise basis by the concerned turnkey contractor subject
to certification from SEE, MPD and TCD, corporate
office, Respondent.
Stage-III : 10% of the consultancy contract amount was
payable upon the acceptance of the final project
completion report, pre & post analysis report and
mapping of assets in GIS subject to certification from
SEE, MPD and TCD, corporate office, Respondent.
There was no concept of milestone based payments, rather,
the payment to the applicant was linked with the payment to
the relevant trunkey contractor. The amount was payable on
actual basis or the services rendered and the invoice/bill should
accompany with the following:
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Com.A.A.No.175/2023
verification and certification from the SEE, MPD and
TCD for the activities performed, which are listed in the
table.
Attendance certificate for the site engineer/project
engineer/team, corporate office, BESCOM.
The consultancy contract was valid for a period of 24 months
from the date of issued of DWA i.e., on 10.09.2020 and was
going to expire on 09.09.2022. However in case of delay in
implementation of the proposed works under the contract, the
agreement allowed will be extension of term till the completion
of the proposed works on the same terms and conditions of the
contract. No incremental payment will be imposed for such
extension. The respondent has requested for the extension of
contract period duly stating the reasons for delay in execution
of works by executing agencies and due to covid 19 pandemic
and government rules vide a letter bearing T&D/BD/DOM/FY23/
BESCOM/311 dated 09.09.2023. This letter clearly shows that
the percentage of work which was completed till that then was
only 28% for jalahalli division. The respondent after receiving of
the extension letter from applicant and many other OMC had
formulated a technical expert committee for examining the
extension time and other proposals vide order dated
29.09.2022. Thereafter the extension request made by
applicant for jalahalli divisiion was placed before the technical
expert committee meeting held on 19.10.2022 and 15.11.2022
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Com.A.A.No.175/2023
for consideration and examination of extension of time for
completion of work. That after considering the same the
technical expert committee recommended to consider the
request of agencies for extension of PMC contract period for one
year to complete the work because the provision of contract
clearly says that in case of delay in implementation of proposed
work, the duration of consultancy period will be extended till
the completion of the proposed work with same terms and
conditions and no incremental payment for such extension will
be imposed. The 121st BESCOM Board of Directors meeting held
on 10.01.2023 seeking approval of PMC contract period. The
board after considering the facts had accorded approval for
extension of PMC contract period from 10.09.2022 to
09.03.2023. And the board had also directed BESCOM to take
action with respect to extension of time or variation of
proposals within its financial capacity. The Respondent after
considering all the pending work which is to be performed by
the applicant, the respondent had again extended the PMC
contract period and provided maximum extension upto
09.09.2023. The applicant had issued a notice dated
16.02.2023 intimidating the respondents that applicant is
demobilizing/withdrawing their resources from the project site
within 30 days. The respondent had conveyed the applicant
through a letters dated 01.03.2023 and 10.03.2023 that there
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Com.A.A.No.175/2023
PMC agreement has been extended from 10.09.2022 to
09.09.2023 with no incremental payment. The respondent again
wrote to the applicant and asked not to demobilize/withdraw
the resources from the project site, and also that the
respondent is extending the time period for the maximum for
the completion of the work. The respondent had also requested
the applicant to complete all the pending work as this is a
prestigious project of the respondent and assured the applicant
that the necessary payment will be arranged as per the
conditions of the contract. The applicant through a mail dated
11.04.2023 at around 10:00 AM informed the respondent that
the applicant is withdrawing/demobilising its resources from the
project site with effect from 12.04.2023, and submitted a status
report where the applicant had showed that the outstanding
amount with respect to the project site till date is Rs.
56,81,944/-. The respondent vide mail dated 12.04.2023 the
contract period has been extended upto 09.09.2023 to
complete the work in all respect in conjunction with the tender
conditions of contract without any incremental payment and to
demobilize/withdraw resources from the project site and also
handing/taking over will not be carried out by the respondent
until successful completion of work in all respect by PMC, failing
which, action will be initiated as per the condition stipulated in
PMC contract. The applicant after several requests made by the
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Com.A.A.No.175/2023
Respondent had demobilised the resources from the project site
on 12.04.2023 without proper communication with the
respondent. The applicant thereafter on the same day filed this
instant arbitration petition for grant of restraining order against
the bank guarantee without any proper ground. It is needful to
mention here that the bank guarantee is a contract between
the bank and the beneficiary. The applicant had no right with
respect of the bank guarantee. The applicant without having
any justifiable ground had filed this instant application. That
due to this unjustifiable act of applicant, the respondent is
facing severe issues with regard to the other ongoing works on
the project site which has not struck in between. That there are
many other agencies which were conducting their operational
works and they are in urgent need of PMC services for JMC
certification, material inspection and other assistance. The
applicant is now anticipating a bundle of other claims from
other agencies if the PMC services will not be provided to them
on urgent basis. The agencies are constantly writing to the
respondent for arranging the PMC services because without
certification and other works which the applicant was
responsible to perform, they are now not liable to raise their
claim for payments for the work which has already completed
by them. The respondent is getting impacted due to the act of
the applicant as the work of project site is hampered at a very
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Com.A.A.No.175/2023
large scale, which is effecting the respondent financially. The
state Government had directed the respondent through its
letter dated 22.05.2023 to not release the payment to any
contractor. Hence, this aspect has also led to further delay in
payment. The somewhat the applicant in raising the invoices
without following the conditions stipulated in the terms of
payment. The term of contract make it clear that the applicant
was eligible for payment only when the turnkey contractor,
completed the milestones. Hence, the applicants payment was
dependent upon the completion of milestones by the relevant
turnkey contractor. The applicant had spent around Rs.
3,50,00,000/-. The applicant has not provided any computation
with respect to the amount. It may be noted that the
consultancy fee for the completion of the PMC agreement and
the DWA is Rs. 3,60,76,551/- inclusive of GST @ 18%, without
completing the minimum of half assigned work. Hence, it is
highly incongruous that the applicant was performing its
services with the expectation of bare minimum profit of Rs.
10,00,000/- only. Clause 15.0: terms of payment very clearly
states that there will a procedure of payment which depends on
the percentage of work completed and percentage of work in
progress. It does not deal with the any time period for the
payment. The payment should also be done after verification
and certification from SCC, MPD&TCD for the activities
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Com.A.A.No.175/2023
performed and after fulfilling other conditions. If the total work
of project site will not be completed within 24 months then it
can be extended for further period for completion of work
without any incremental payment. The respondent had made
the payment according to the conditions of contract and was
also willing to pay the further amount after completing the
terms of contract. The applicant had raised further that the
bank guarantee will be unjustifiable illegally invoked and
encashed by the respondent. It is a settled law that existence of
any dispute between the parties to the main contract is not a
ground for issuing an order of injunction to restrain enforcement
of bank guarantee. In the present application no loss or injury is
to be caused to applicant rather the respondent is now facing a
huge loss of reputation as well as financial loss due to the act of
applicant who had demobilized the resources from the project
site without properly communicating with the respondent along
with that due to non-availability of PMC services at the project
site the respondent is anticipating many other claims in future
from different agencies who are still working on the project site.
According to the clause 30 of the PMC agreement in case of
dispute between the parties will try to resolve the dispute
mutually within 30 days. And if fails to do that the dispute will
be referred to arbitration under the Arbitration and Conciliation
Act, 1996, to be adjudicated by the sole arbitrator to be
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appointed by mutual agreement of both the parties. Hence, the
Respondent prays to dismiss the application.
4. I have heard the arguments for the both Advocates.
5. I formulate the following Points for my consideration:-
(1) Whether the Petitioner is entitled for a
relief of Interim Measure under Section 9 of
Arbitration and Conciliation Act as prayed in
the Petition?
(2) What Order?
6. My findings are as follows:-
Point No. 1 : - In the Affirmative.
Point No. 2 : - As per my final orders for
the following reasons.
REASONS
7. Point No. 1: - Section 9 in the Arbitration And Conciliation
Act, 1996 reads as under:
"9. Interim measures, etc. by Court.--A party may, before or
during arbitral proceedings or at any time after the making of
the arbitral award but before it is enforced in accordance with
section 36, apply to a court--
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Com.A.A.No.175/2023
(i) for the appointment of a guardian for a minor or a
person of unsound mind for the purposes of arbitral
proceedings; or
(ii) for an interim measure of protection in respect of any
of the following matters, namely:
(a) the preservation, interim custody or sale of any
goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the
arbitration;
(c) the detention, preservation or inspection of any
property or thing which is the subject-matter of the
dispute in arbitration, or as to which any question
may arise therein and authorizing for any of the
aforesaid purposes any person to enter upon any
land or building in the possession of any party, or
authorising any samples to be taken or any
observation to be made, or experiment to be tried,
which may be necessary or expedient for the
purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the court to be just and convenient,
and the Court shall have the same power for
making orders as it has for the purpose of, and in
relation to, any proceedings before it."
8. This application is filed for restrain the respondent from
invoking and encashing the Bank Guarantee having reference
N. 0393NDLG00101521 amounting to Rs. 18,03,850/- issued by
the applicant to the Respondent.
48
Com.A.A.No.175/2023
9. It is the case of the applicant that the Respondent issued a
detailed work order bearing reference No.
BESCOM/CGM(Proj)/DGM-3/AGM/BC-14/20-21/3065-74 dated
10.09.2020 favour of the applicant. In compliance of clause 8.1
of the special conditions of contract, the applicant submitted a
bank guarantee bearing No. 0393NDLG00101521 dated
28.08.2020 for a sum of Rs. 18,03,850/-. Respondent issued a
tender for construction supervision and monitoring of work of
conversion of 11kv/LT overhead line into UG/AB cable and laying
of optic fiber cable along with UG cable and other capex works
on firm price basis. The applicant applied for the tender and on
14.08.2020, the Respondent conveyed its intent awarding the
tender to applicant and appointing the applicant as project
management consultant, i.e., PMC, for Jalahalli division of
respondent. Thereafter the project was awarded by Respondent
in favor of applicant. The applicant was required to complete
the works within 2 years (period between 10.09.2020 and
09.09.2022). Applicant deployed 12 skilled workers and project
engineers at the project site in order to provide services. The
larger portion of the work could not be completer till date due
to the delay caused by the Respondent. The respondent also
defaulted in its obligation of awarding the work valued at Rs.
3,60,00,000/- during the tenure of engagement. There are
delays on part of respondent in clearing the invoices of
48
Com.A.A.No.175/2023
applicant. Despite a failure from respondent, the applicant kept
the resources at the project site from 10.09.2020 to 12.04.2023
and continued to perform its other obligation under the PMC
agreement and DWA due to which the applicant hand spent
around Rs. 3,50,00,000/-. Vide letter dated 11.02.2022,
applicant had demanded the payment of pending dues in
immediate basis. However, the Responded neither responded to
the letter dated 11.2.2022 nor cleared the dues. The applicant
again sent a letter dated 13.05.2022 but the respondent did not
respond to the said letter as well. That on expiry of 24 months,
respondent had only paid a sum of Rs. 51,00,000/-. The
applicant had wrote a letter dated 09.09.2022 for extension of
the period of engagement. Thereafter also several letters had
been sent by applicant. The applicant sent a notice dated
16.02.2023 to the Respondent for the payment of overdue
amount, applicant no longer sought extension. The respondent
with malafide intent attempted to extend the PMC agreement
till 09.09.2023. Respondent initially sent a letter dated
01.03.2023, wherein it is unilaterally sought to extend the term
of the PMC agreement from 10.09.2022 to 09.03.2023 with no
incremental payment for extension and again through a letter
dated 10.03.2023 unilaterally extended the agreement from
10.03.2023 to 09.09.2023. The respondent again wrote a letter
dated 17.03.2023 to applicant and asked the respondent not to
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Com.A.A.No.175/2023
the demobilize resource from the project site. On 12.04.2023,
the applicant had finally demobilized the resources from the
project site. Till date total cost incurred by the applicant is
3,50,00,000/- and the payment received from Respondent is Rs.
51,00,000/- only. The applicant now apprehends that the
respondent will unjustifiably and illegally try to encash the bank
guarantee furnished by the applicant.
10. The Clause "18.0 deals with Termination of the
contract: reads as under
A. By the BESCOM:
.......
(e) Liquidated Damages for Non-performance of
Consultant:
i. Consultant is expected to fully adhere to all the
provisions of terms of reference and shall be fully
responsible for successful implementation of the
project in accordance with the provisions of the
works contract agreement and other schedules
agreed between the BESCOM Representative and the
works contractors. Any failure of Consultant in
notifying to the BESCOM and work contractor on non-
compliance of the work contract agreement and
other schedules by the work contractor, non-
adherence to the provisions of terms of reference
and non-adherence to the time schedule prescribed
under terms of reference amounts to non-
performance of the Consultant. In such a condition,
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Com.A.A.No.175/2023
BESCOM has the right to en-cash the performance
security and terminates the contract.
ii. If the Consultant fails to deploy the key and sub
key manpower as agreed in the terms of reference,
will amount to non-performance of consultant. In
such a condition BESCOM has the right to en-cash
the performance security and terminates the
contract.
Iii. During the execution of works; if the Consultant
fails to perform their obligations as specified in terms
of reference either with respect to progress
monitoring and or quality control by the Consultant
team the same shall be treated as non-performance
of contract.
iv. If the consultant fails to submit the reports as per
the terms of reference within the time frame
prescribed, will attract a penalty of Rs.100 per day.
However if the delay is more than a month BESCOM
has a right to en-cash the performance security and
terminate the contract."
11. Clause 45 of the PMC Agreement states that the
termination shall be as per Clause 2.7 of GCC. Clause 2.7.1 of
GCC read with SCC reads as under:
"2.7 Termination
2.7.1 By the Client
.....
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(e) Performance of Consultant:
i. Consultant is expected to fully adhere to all the
provisions of terms of reference and shall be fully
responsible for successful implementation of the project in
accordance with the provisions of the works contract
agreement and other schedules agreed between the Client/
Client's representative and the works contractors. Any
failure of Consultant in notifying to the Client and work
contractor on non-compliance of the work contract
agreement and other schedules by the work contractor,
non-adherence to the provisions of terms of reference and
non-adherence to the time schedule prescribed under
terms of reference amounts to non-performance of the
Consultant. In such a condition, Client has the right to
encash the performance security and terminates the
contract.
ii. If the Consultant fails to deploy the key and sub key
manpower as agreed in the terms of reference, will amount
to non-performance of consultant. In such a condition,
Client has the right to encash the performance security and
terminates the contract.
iii. During the execution of works; if the Consultant fails to
perform their obligations as specified in terms of reference
either with respect to progress monitoring and or quality
control by the Consultant team the same shall be treated
as non-performance of contract.
iv. If the consultant fails to submit the reports as per the
terms of reference within the time frame prescribed, will
attract a penalty of Rs.100 per day. However if the delay is
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Com.A.A.No.175/2023
more than a month Client has a right to encash the
performance security and terminate the contract."
12. Clause 8.3 of the SCC which deals with bank guarantee
provides the following pre-condition for invocation of bank
guarantee:
(a) There must be a default.
(b) BESCOM must notify TPCL of the nature of default prior to
invocation of Bank Guarantee.
The relevant provision is reproduced herein below for the
convenience of this court :
8.3 claims under performance guaranteed
" Prior to including a claim under the performance
Guarantee the client shall in every case notify the
consultant stating the nature of the default in respect of
which the claim is made.
13. It is also an evident on record that the letters have been
issued by TPCL (letters dated 11.02.2022, 13.05.2022,
05.01.2023 and 30.01.2023) to BESCOM seeking payment of
the outstanding dues in respect of the invoices issued by TPCL
for the work undertaken by it under the consultancy
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Com.A.A.No.175/2023
agreements. None of these letters or the liability towards the
outstanding due has ever been refuted/disputed by BESCOM.
14. The respondent initially sent a letter dated 01.03.2023,
wherein it unilaterally sought to extend the term of the
Consultancy Agreements from 10.09.2022 to 09.03.2023, with
no incremental payment for extension. Thereafter, the
respondent issued another letter dated 10.03.2023, wherein it
further sought to unilaterally extend the term of the
Consultancy Agreements from 10.03.2023 to 09.09.2023 with
no incremental payment for extension. Thereafter, the
respondent issued another letter dated 10.03.2023, wherein it
further sought to unilaterally extend the term of the
Consultancy Agreements from 10.03.2023 to 09.09.2023 with
no incremental payment for extension. The applicant ultimately
sent a notice dated 16.02.2023 to the respondent stating
clearly that payments are overdue and in view of the extant
impasse caused by the respondent's inaction and delayed
payment, the applicant was no longer seeking an extension
under the Consultancy Agreement and would be demobilizing
its resources from the site within 30 days from the date of the
said notice.
15. The learned counsel of the applicant has argued that the
BESCOM had any claim against TPCL, it should have issued
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Com.A.A.No.175/2023
notice invoking arbitration against TPCL in terms of clause 30 of
the PMC agreement read with clause 20 of the DWA. The
applicant has issued notice invoking arbitration and also issued
letter seeking appointment of arbitrator. Therefore, it is evident
that BESCOM has no claim whatsoever against TPCL. As there
is no claim of BESCOM against TPCL, there is no reason for
BESCOM to invoke the Bank Guarantee.
16. The learned counsel for the respondent argued that the
Bank guarantee is issued by ICICI Bank in favour of the
respondent. The Bank has not addressed the bank guarantee in
favour of the applicant. (ii) The Bank Guarantee does not refer
to any clauses in the agreements executed the applicant and
the respondent. (iii) Paragraphs 25 and 26 clearly lay down that
the Respondent is not required to prove or to show ground or
reasons for the Respondent's demand for the sum specified
therein. The referred clauses make the bank guarantee
unconditional. (iv) Paragraphs 29 to 32 clearly establish that the
Bank Guarantee is independent of the agreements between
applicant and the Respondent. The said paragraphs read as
under:
"we further agree that no change or addition to or
other modification of the terms of the contract or of the
services to be performed there under or any of the
48
Com.A.A.No.175/2023
contract documents which may be made between you
and the consultants which may be made between you
and the consultant shall in any way release us from any
liability under the guarantee, and we hereby waive
notice of any such change/addition or modification".
[
17. Re- Exception to the invocation of the Bank Guarantee. In
the present case applicant had not raised the issue of fraud.
The Hon'ble Supreme Court and Hon'ble High Courts have laid
down the said exception, which are fraud and irretrievable
injustice/harm. The learned respondent has relied the Judgment
of Hon'ble Supreme court in Dwarikesh Sugar Industries Limited
vs. Prem Heavy Engineering Works (P) Limited and others. AIR
1997 SC 2477 wherein held that:
"21. Numerous decisions of this court rendered over
a span of nearly two decades have laid down and
reiterated the principles which the courts must apply
while considering the question whether to grant an
injunction which has the effect of restraining the
encashment of a bank guarantee. We do not think it
necessary to burden this judgment by referring to all of
them. Some of the more recent pronouncements on this
point where the earlier decision have been considered
and reiterated are Svenska Handelsbanken vs. Mis.
Indian Charge Chrome and Other. MANU/SC/0138/1994 :
AIR 1994 SC 626; Larsen and Toubro Limited Types
citation RRR
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Com.A.A.No.175/2023
18. The learned counsel for the Respondent further argued
that this referred case law stated that the court before granting
an injunction on a Bank Guarantee must take two exceptions
into accounts. First is that there is a fraud in connection to the
bank guarantee and second is that enhancement of such bank
guarantee would result is irreparable damage to the Plaintiff.
Since most of the bank guarantee is between the bank and the
beneficiary it is the duty of the Plaintiff to prove that the Bank
Guarantee falls under the two exceptions. It is also settled law
that existence of any dispute between the parties to the main
contract is not a ground for issuing an order of injunction to
restrain enforcement of bank guarantee (Ansal Engineering
Projects Limited vs. Tehri Hydro Development Corporation
Limited and Another: (1996) 5 SCC 450. The general rule is that
the beneficiary cannot be restrained from encashing the bank
guarantee, even if a dispute arises in the performance of the
underlined contract. The dispute, between the beneficiary and
the party at whose instance the bank has given the guarantee,
is immaterial and is of no consequence. Ordinarily, the court
should not interfere with the invocation or encashment of the
bank guarantee so long as the invocation is in terms of the bank
guarantee. (Standard Chartered Bank vs. Heavy Engg. Corpn.
Ltd., (2020) 13 SCC 574).
48
Com.A.A.No.175/2023
19. The Bank Guarantee is an independent and separate
contract, and is absolute in nature, existence of any dispute
between the parties to the contract is not a ground for issuing
an order of injunction to restrain enforcement of the bank
Guarantee. (Himadri Chemicals Industries Limited vs. Coal Tar
Refining Co., (200) 8 SCC 110 and Adani Agri Fresh vs. Mehboob
Sharif and Others, AIR 2016 14 SCC 517, Gujarat Maritime
Board vs. L&T Infrastructure Development Projects Limited and
Another ( 2016) 10 SCC 46. Invocation of a bank guarantee
does not depend on termination of the underlying contract. The
Bank Guarantee is a separate contract, and is not qualified by
the contract on performance of obligation. Whether the action
of the beneficiary is legal and proper, and whether on the basis
of such a decision, the bank guarantee could have been
invoked, are not matters of inquiry. Between the bank and the
beneficiary, the moment there is a written demand for invoking,
the bank is bound to honour the payment under the guarantee.
In this case the applicant has incurred costs of approximately
Rs. 3,50,00,000/- which had a hug impact on the cash flows of
the applicant.
20. The Respondent contention that had already paid Rs.
52,00,000/- to the applicant according to the terms of payment.
The applicant had only completed 28% of the work till date,
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Com.A.A.No.175/2023
43% work was still in process and 29% work is yet to start. The
applicant cannot claim the payment for the work which has not
even completed. The work percentage which has been
completed and which are still pending is very clearly stated in
the letters exchanged by the applicant only. The contract was
initially valid for 24 months, but the agreement could be
extended without incremental payment if the proposed works
were delayed. After the expiry of the agreement, the applicant
wrote a letter for extension. The applicant were knowing the
fact that if they have not completed the work in 24 months,
they will be in dire need of the extension. But even after
completing only 28% of work in 24 months, the applicant wrote
a letter and requested for extension on the date of expiry of the
agreement. The respondent thereafter considered the request
for the extension of PMC and confirmed the extension till
09.09.2023 without any incremental payment. But in the
meantime when the respondent was considering the extension
of the tenure, the applicant terminated the agreement and
removed their resources from the project site.
21. In this regard the Respondent has relied upon a following
decisions:
Gowrishankara Swamigalu vs. Sri Siddhaganga Mutt 1989 (2)
Kar LJ 548 the Hon'ble High Court of Karnataka Held that
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Com.A.A.No.175/2023
" II need hardly add the existence of a prima facie
case in these matters of granting injunction is really the
harbinger or the all clear sign to go ahead in
investigating other aspects of the question governing
the grant or refusal of injunction. If there was no prima
facie case at all or the case put forward was so weak
and tainted having very little prospect of being
accepted by the Court, further questions of balance of
convenience and irreparable loss need not be
considered since the plaintiff would fall at the very first
stile itself. But if there was a prima facie case then
other considerations governing the grant of injunction
"would come into play and will also have to be
evaluated before granting or refusing the injunction.
Best Sellers Retail (India) Private Limited vs. Aditya Birla
Nuvo Limited and others (AIR 2012 SC 2 448 )the Hon'ble
Supreme Court held that
Yet, the settled principle of law is that even where prima
facie case is in favour of the plaintiff, the Court will refuse
temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable.
In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC
719] this Court held:
"Satisfaction that there is a prima facie case by itself is
not sufficient to grant injunction. The Court further has
to satisfy that non-interference by the Court would
result in "irreparable injury" to the party seeking relief
and that there is no other remedy available to the party
except one to grant injunction and he needs protection
48
Com.A.A.No.175/2023
from the consequences of apprehended injury or
dispossession. Irreparable injury, however, does not
mean that there must be no physical possibility of
repairing the injury, but means only that the injury must
be a material one, namely, one that cannot be
adequately compensated by way of damages."
Dwarikesh Sugar Industries Limited vs. Prem Heavy
Engineerings Works (P) Limited and Others AIR 1997 SC 2 477
the Hon'ble Supreme Court held that
"It is unfortunate that the High Court did not
consider it necessary to refer to various judicial
pronouncements of this Court in which the principles
which have to be followed while examining an
application for grant of interim relief have been clearly
laid down. The observation of the High Court that
reference to judicial decisions will not be of much
importance was clearly a method adopted by it in
avoiding to follow and apply the law as laid down by
this Court. Yet another serious error which was
committed by the High Court, in the present case, was
not to examine the terms of the bank guarantee and
consider the letters of invocation which had been
written by the appellant. If the High Court had taken
the trouble of examining the documents on record,
which had been referred to by the trial court, in its
order refusing to grant injunction, the court would not
have granted the interim injunction. We also do not
find any justification for the high court in invoking the
alleged principle of unjust enrichment to the facts of
the present case and then deny the appellant the right
to encash the bank guarantee. If the High court had
48
Com.A.A.No.175/2023
taken the trouble to see the law on the point it would
have been clear that in encashment of bank guarantee
the applicability of the principle of undue enrichment
has no application."
22. The applicant has relied upon a decision:
Hindustan Construction Co. Ltd. vs State of Bihar and
Ors., (1999) 8 SCC 436, the Hon'ble Supreme Court has held
that where the party which invokes the Bank Guarantee, prima
facie, is at fault or breach of contract, the "special equities" lies
in the favour of the other party who had furnished the bank
guarantee. The relevant extract of the said judgment is
reproduced below:
"We have scrutinized the facts pleaded by the parties
in respect of both the Bank Guarantees as also the
document filed before us and we are, prima facie, of
the opinion that the lapse was on the part of the
defendants who were not possessed of sufficient funds
for completion of the work. The allegation of the
defendants that HCCL itself had abandoned the work
does not, prima facie, appear to be correct and it is for
this reason that we are of the positive view that the
"special equities" are wholly in favour of HCCL."
23. In the present case also the applicant has issued a several
letters by TPCL dated 11.02.2022, 13.05.2022, 05.01.2023 and
48
Com.A.A.No.175/2023
30.01.2023 to BESCOM seeking payment of the outstanding
dues in respect of the invoices issued by TPCL for the work
undertaken by it under the consultancy agreements. None of
these letters or the liability towards the outstanding due has
ever been refuted/disputed by BESCOM.
24. The Clauses of DWA, PMC Agreement, GCC and SCC are
not applicable in the present case as (i) the DWA has not been
terminated by the respondent but by the applicant (ii) the
events mentioned in the said clause which entitles the
respondent to invoke and/or encash the Bank Guarantee has not
arisen in the present case. There has not been any non-
compliance of the work or obligation under the Consultancy
Agreements or non-adherence of the provisions by the
applicant. Nor has the applicant failed to deploy the key and sub
key manpower or submit the report. Thus, the respondent is not
entitled to invoke and/or encash the Bank Guarantee under the
aforesaid clauses of DWA, PMC Agreement, GCC and SCC. It is
settled position of law that even in cases of unconditional or
unequivocal bank guarantees, a bank guarantee cannot be
invoked until the event given in the concerned contract for
invocation of Bank Guarantee arises.
48
Com.A.A.No.175/2023
25. It is a settled position of law that where the party which
invokes the bank guarantee is in breach of contract, special
equities lie in favour of the other party who had furnished the
bank guarantee. (Hindustan construction Co. Ltd vs. State of
Bihar and others, (1998) 8 SCC 436. The BESOM should not be
permitted to take advantage of its own wrong. Further, after a
long delay of months, BESCOM has now made part payment of
the outstanding dues and if BESCOM is allowed to invoke and
encash the Bank Guarantee, it will unjustly enrich BESCOM,
which is not permissible under law. It is a settled position of law
that where a party commits breach of its obligation, it cannot
be allowed to take undue and unfair advantage of its own
wrong. In this regard relied upon a decisions that (Kusheshwar
Prasd Singh vs. State of Bihar and Others, (2007) 11 SCC 447,
State of Karnataka vs. Shree Rameshwara Rice Mills (1987) 2
SCC 160.
26. The work under the consultancy agreement could not be
completed in the specified period of two years. As it was a
consultancy agreement which required TPCL to supervise the
work allotted to turnkey contractor, TPCL could have supervised
the work only when the work was allotted by BESCOM to
turnkey contractor. The multiple correspondences issued by
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Com.A.A.No.175/2023
TPCL establishes that it was due to the failure of BESCOM to
award work to turnkey contractor due to which the consultancy
agreement could not be completed within the specified period
of two years.
27. Ofcourse as per the consultancy contract that 60% of the
consultancy contract amount shall be paid upon completion of
the individual work wise basis. 30% of the consultancy contract
amount shall be paid upon the commissioning of the individual
work wise basis. 10% of consultancy contract amount shall be
paid upon the acceptance of the final project completion report.
28. It is the case of the applicant that it has incurred cost of
approximately Rs. 3,50,00,000/- which had a huge impact on
the cash flows of the applicant. The Respondent contention that
they had already paid 52,00,000/- to the applicant according to
the terms of the payment and applicant had only completed
28% of the work till date, 43% of work was still in process and
29% work is yet to start all these allegations and counter
allegations are subject to adjudication of the arbitration.
29. It is evident on the record that the respondent after
considering all the pending work which is to be performed by
48
Com.A.A.No.175/2023
the applicant, the respondent had again extended the PMC
contract period and provided maximum extension upto
09.09.2023. Whether the delay of completion of work is
attributable on the part of the applicant or on the part of the
respondent this point has to be considered before the
arbitration. So, at this stage there is no allegation by the
Respondent against the applicant regarding the non-
completion of work, till the termination of agreement issued by
the applicant. The Respondent has not communicated any
correspondence regarding the non satisfaction of the work or
delay in work by the applicant and further they have extended
the work only after issuance of the termination of contract. So,
at this stage in view of decision of (Hindustan construction Co.
Ltd vs. State of Bihar and others). In the present case also,
there is no document before this court to shows that the lapse
was on the part of the applicant for non-completion of the
work . Further till the issuance of termination of contract notice
the Respondent to the Applicant for payment of outstanding
and also in respect of extension of work. As above discussed, till
the issuance of termination of notice, the Respondent were not
made any allegations against the applicant regarding the work
performance of the applicant. So, I hold that the applicant is
made out a prima-facie case for grant of interim protection
48
Com.A.A.No.175/2023
order in view of Special equities. Further, balance of
convenience lies in favour of the Respondent.
30. Further in case special equities lie in favour of the other
party who had furnished the bank guarantee. If the present
application is not allowed and the respondent is allowed to
invoke and/or encash the Bank Guarantee in favour of the
applicant, then the CIBIL score of the applicant may also be
adversely impacted, which cannot be cured by any amount of
financial compensation. So, by considering all these facts to
necessitates passing the present injunction as sought by the
Applicant. Therefore, I answer this Point in the
"Affirmative".
31. Point No. 2 :- Therefore, I proceed to pass the following
Order.
ORDER
The Petition filed under Section 9 of Arbitration and Conciliation Act 1996, is allowed.
The Respondent their its agents, assigns, authorised representatives etc., restrained from invoking and encashing the Bank Guarantee having reference No. 0393NDLG00101521 amounting to Rs. 18,03,850/- issued by the applicant to the respondent.
48Com.A.A.No.175/2023 The Office is directed to send copy of this Order to the Petitioner and Respondents to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(Dictated to the Stenographer, typed by her directly on the computer, verified and pronounced in the open court on 30th day of January 2024).
(SUMANGALA S BASAVANNOUR) LXXXII Addl. City Civil & Sessions Judge, Bengaluru.