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21) As per the Petitioner, since the bank guarantee (BG) was required to be obtained and submitted by the SPV, (i) incorporation of the SPV (ii) existence of SPV‟s bank account and (iii) infusion of funds in the SPV by the joint venture partner in Greece were prerequisite for obtaining the bank guarantee.

22) However, as per the Petitioner, on account of the COVID - 19 pandemic, Greece was under a complete national lockdown since November 2020 and the lockdown was repeatedly extended from time to time till the end of April, 2021. It was on account of COVID - 19 pandemic that there was some procedural delay from the consortium partner M/s Goldair Handling S.A. in Greece that has delayed the business, legal and regulatory transactions.

30) On 18.03.2021, the Respondent No. 3 wrote to Respondent No. 2 informing that the Petitioners had till date not submitted the original Partial Bank Guarantee, and had failed to submit the balance amount of the bank guarantee till date.

31) On 23.03.2021, the Petitioners wrote to Respondent No. 3 seeking extension for submission of balance amount of the bank guarantee on account of writ petitions challenging the award of tender for Group A1 and C airports, pending before this Court and the High Court of Judicature at Madras. To this, the Respondents states that the writ petitions pertained to Udaipur and Chennai airports, and had no effect on the tender for Goa airport. Further, there was no lockdown imposed in Mumbai on this date. The Petitioners also failed to show as to how the lockdown in Greece precluded the Petitioners from submitting the Original Partial Bank Guarantee and the also, the balance amount. Further, they have failed to substantiate on record that they made any efforts in Greece or elsewhere, to submit the requisite bank guarantee.

(ii) Force majeure is not applicable to the facts and circumstances of the case:
a. As there is no Force Majeure clause in the RFP or the LOIA.
b. The Petitioners‟ breaches of the LOIA‟s conditions are not attributable to the COVID-19 pandemic. The Petitioners were obligated to submit the requisite bank guarantees at the Goa airport in the period between 12.01.2021 and 26.02.2021. It is submitted that there were no lockdown restrictions in place in either Mumbai, New Delhi or Goa in the months of January, and February, 2021. Thus, the failure of the Petitioners to submit the requisite bank guarantees was not attributable to any lockdown restriction. Furthermore, the Respondent authorities had not yet cancelled the LOIA, and the Petitioners had sufficient opportunity to submit the requisite original bank guarantees at Goa airport, after being directed to do so by the Chairman of Respondent No. 1 on 05.04.2021. It is also submitted that lockdown restrictions were imposed in Mumbai only from 14.04.2021, in New Delhi from 19.04.2021 and in Goa from 29.04.2021.

c. Even during lockdown restrictions, flight operations in Mumbai, New Delhi and Goa were functional.

d. The Petitioners have failed to establish the impact of the lockdown restrictions in Greece on the performance of their obligations under the LOIA.

40) Learned counsel for the Respondents has relied on the following judgments in support of his submissions: Jagdish Mandal v. State of Orissa and Others [(2007) 14 SCC 517]; Joshi Technologies International Inc. v. Union of India [(2015) 7 SCC 728]; Patel Engg. Ltd. v. Union of India [(2012) 11 SCC 257]; Air India Ltd. v. Cochin International Airport Ltd., [(2000) 2 SCC 617]; B.S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., [(2006) 11 SCC 548] Maa Binda Express Carrier and Anr. v. North-East Frontier Railway and Othrs., [(2014) 3 SCC 760], Halliburton Offshore Services Inc. v. Vedanta Limited & Anr. [OMP (I) (Comm.) No. 88/2020 (Delhi HC, judgment dated 29.05.2020)], Standard Retail Pvt. Ltd. v. G.S. Global Corp & Ors, [2020 SCC Online Bom 704]