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"7. The Bidder is required to pay Rs.50,00,00,000/- (INR Fifty Crore Only) towards Bid Security in the form of a Bank Guarantee failing which the bid submitted by the bidder shall be rejected. The Bank Guarantee should be drawn in favour of "PAO, UIDAI" and payable at New Delhi.
8. The bidders, in line with clause 3.2 of relevant expression of interest (EoI) for "Managed Services Provider(MSP) for CIDR dated 18th June, 2010 shall extend the validity of the EMD of Rs.2,00,00,000 (INR Two Crores only), submitted as part of EoI Response, so that the same is valid for 45 days beyond the validity of this RFP Bid as per Clause 5(f) above. This extension of EMD submitted at the time of EoI stage shall be submitted along with bid security of Rs.50,00,00,000/- (INR Fifty Crore Only)."

23. A careful examination of the terms of the bank guarantee furnished by the plaintiff-company to the defendant-UIDAI would show that in the event of the plaintiff-company, having been informed of acceptance of EOI, by the UIDAI, during the period of its validity, failing or refusing to participate in the subsequent tender process after having been shortlisted, the bank is required to pay to UIDAI the amount of Rs 2 crores on the very first written demand and without asking UIDAI to substantiate its demand. During the course of arguments, the learned counsel for UIDAI, placed on record a copy of the letter dated 29 th May, 2011, written by it to defendant No.3-State Bank of India, invoking the bank guarantee furnished by the plaintiff-company and asking the bank to pay a sum of Rs 2 crore to it, latest by 25th May, 2011. It has been clearly stated in para 2 of this letter that by not submitting the bid after having been listed at the EOI stage, the plaintiff had failed or refused to participate in the tender process in terms of clause 1(b) of the bank guarantee, which also amounts to violation of the conditions of the EOI. It would be pertinent to note that there is absolutely no reference to the bid security in the bank guarantee and the obligation of the bank, to pay the amount of the bank guarantee to UIDAI, arises the moment, it receives a demand from it on the ground that, the plaintiff had either withdrawn participation from the EOI or had failed or refused to participate in the subsequent tender process after having been shortlisted. Reading the bank guarantee without any aid of the tender document clearly entitles the defendant UIDAI to invoke the bank guarantee in the event of failure or refusal of the plaintiff-company to participate in the tendering process by declining to submit the bid or otherwise withdrawing from the subsequent tendering process.

25. Assuming that the terms and conditions of the tender document have to be read in order to decide whether the bank guarantee could be invoked by UIDAI or not, I find that the terms and conditions of the tender document clearly stipulated forfeiture of the EMD in the event of the respondent, who has been successful on evaluation of the EOI refusing to participate in the tendering process by declining to submit the bid or in some other manner.

26. As noted earlier, annexure 6.4 which is the proforma of EMD form and which has been used in the bank guarantee furnished by the plaintiff-company expressly provided for payment of the amount of EMD (Rs 2 crore) to UIDAI in the event of the short-listed respondent failing or refusing to participate in the subsequent tender process and it is not in dispute that the plaintiff-company was short-listed and it has declined to participate in the subsequent process by not submitting the bid. The expression "bid security" used in clause 6.1.6 of annexure 6.3, to my mind, is a mistake since it is clause 12.7 of Invitation to bid which provides for forfeiture of the bid security in the event the bidder withdrawing the bid during its validity or failing to sign the contract or furnishing the performance security. It would be pertinent to note here that the amount of bid security fixed in the tender document was Rs 50 crores, whereas the amount of EMD was only Rs 2 crore.

28. In my view, the facts and circumstances of the case do not make out a case of special equities in favour of the plaintiff or of an irreparable injury to it in the event of the bank guarantee being encashed. Since there is breach of the terms of the tender on the part of the plaintiff and not on the part of the defendant- UIDAI, it is difficult to say that there is any special equity in favour of the plaintiff-company. In the case before this Court, since the defendant- UIDAI is none other than the Union of India, it cannot be said that in the event of bank guarantee being allowed to be encashed, it would be impossible or even difficult for the guarantor (the plaintiff-company) to reimburse itself in case it sues the defendant for recovery of the amount of bank guarantee. Also, prima facie, the defendant- UIDAI appears to be entitled to receive the amount of bank guarantee from defendant No. 3-Bank. Hence, there are no exceptional circumstances warranting intervention of the Court against encashment of the bank guarantee. As held by Supreme Court in the case of Dwarikesh Sugar Industries Ltd. (supra), the resulting of irretrievable injury has to be such a circumstance which would make it impossible for the guarantor to reimburse himself if he ultimately succeeds and it must be proved to the satisfaction of the Court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary by way of restitution. No such circumstance exists in this case since the defendant happens to be Government of India. In Dwarikesh Sugar Industries Ltd. (supra), Supreme Court held that unjust enrichment is not a valid ground to grant injunction against encashment of bank guarantee. The Court inter alia observed as under: