Irc Logistics Ltd. v. Mahanadi Coalfields

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No. 9688 of 2012 IRC Logistics Limited .....

Petitioner Mr. S. Udgata, Advocate Vs.

Mahanadi Coalfields Limited & Ors.

.....

Opposite parties Mr. N.C. Mohanty, Advocate (O.Ps.1-3)

CORAM:

DR. JUSTICE B.R. SARANGI MISS JUSTICE SAVITRI RATHO

ORDER

15.03.2022 Order No.

This matter is taken up through hybrid mode.

2.

Heard Mr. S. Udgata, learned counsel for the petitioner and Mr. N.C. Mohanty, learned counsel for opposite parties no.1 to 3.

3.

The petitioner has filed this writ petition assailing the order dated 16.05.2012 under Annexure-7, by which it has been directed for encashment of B.G.

No.017GM01112920001 dated 19.10.2011 amended by letters dated 17.11.2011, 24.12.2011 and 05.03.2012 for Rs.18,72,000/- (Rupees Eighteen Lakh Seventy-two thousand only) on A/c. of the petitioner-M/s. IRC Logistics Ltd., issued in favour of Mahanadi Coalfields Limited against NIT No.MCL/SBP/GM(TC)/NIT-640/2011/682 dated 30.09.2011 for the work of "Hiring of Pay Loaders for Mechanical Transfer of coal into Railway Wagons at Spur Siding No.V & VI of Ananta OCP, Jagannath Area" for a total quantity of 400.00 Lakh Tes.

4.

Mr. S. Udgata, learned counsel for the petitioner contended that invocation of bank guarantee in respect of NIT-640/2011/682 dated 30.09.2011 for the aforesaid work is absolutely illegal. Therefore, the opposite party-MCL is liable to refund the same with interest. As such, vide order dated 23.05.2012, this Court, keeping in view clause-24 of the tender and the further assertion of the learned counsel for the petitioner that the petitioner has specifically communicated its refusal for the 3rd extension, as sought for by opposite parties no.1 to 3, directed stay of encashment of the bank draft No.326914 dated 18.05.2012, till next date and alternatively, in the event the draft has already been encashed, opposite party no.

1-Mahanadi Coalfields limited is directed to keep the said amount in a short term fixed deposit in any nationalized bank immediately, and details of such deposit be intimated to this Court by the next date. In view of such position, the amount of bank guarantee, which has been invoked in NIT-640/2011/682 dated 30.09.2011, should be refunded to the petitioner, as it is not the successful bidder in the bid itself.

5.

Mr. N.C. Sahoo, learned counsel for opposite partyMahanadi Coalfields Ltd. contended that though the bank guarantee has been invoked in respect of NIT-640/2011/682 dated 30.09.2011, but that relates to default of amount in respect of NIT-484. Thereby, the encashment which has been made is well justified, as it was outstanding against the petitioner.

6.

Considering the contentions raised by learned counsel

for the parties and after going through the records, it is the admitted case of both the parties that in respect of NIT640/2011/682 dated 30.09.2011, the bank guarantee was executed by the petitioner amounting to Rs.18,72,000/-. Since the petitioner was not the successful bidder, it is entitled to get refund of the bank guarantee, but the said amount is lying with the opposite party-MCL in a short term fixed deposit, which has been extended from time to time. The opposite party-MCL, instead of refunding the said amount to the petitioner, has adjusted the same against the dues outstanding in respect of NIT-484. In paragraphs-N & O of the counter affidavit, it is stated as follows: "N. In response to our above request, M/s. IRC Logistics Ltd., vide letter No. SKG/MCL-HQ/2012/040 dated 25.04.

2012 expressed their inability for further extension of Bid validity and also requested to return the B.G O. As an amount of Rs. 21,06,025.16 is to be recovered from M/s. IRC Logistics Limited against NIT-484,MCL had no option to go for encashment of the said BG amount of Rs. 18,72,000/-, for recovery of a part of its dues from M/s IRC Logistics Limited against NIT-484.Further the subject BG no more exists as Bid Security for the bid of M/s IRC Logistics Limited against the NIT-640 due to online rejection by the system due to non-submission of fleet as required in this tender and unwillingness of the bidder to extend validity of bid and BG. In view of the impending expiry of validity of the subject BG for the amount of Rs.18, 72,000/- (i.e.

valid up to 31/05/2012) was encashed and M/s IRC Logistics Limited was also informed about the recovery of RS. 21,06,025.16 towards forfeiture of EMD vide letter no.MCL/GM/BGA/S-54/2012/3859 dated 17/03/2012 of General Manager, Basundhara - Garjanbahal Area." 7.

Since the bank guarantee, which was furnished in respect of NIT-640/2011/682, has been invoked against NIT-484, the same cannot sustain in the eye of law. As the said amount has been kept in term deposit with the opposite

party-MCL by virtue of interim order dated 23.05.2012; this Court directs the opposite party-MCL to refund the said amount to the petitioner as expeditiously as possible, preferably within a period of three months from the date of passing of the order.

8.

With the above observation & direction, the writ petition stands disposed of.

Issue urgent certified copy as per rules.

Alok/Sukant ...........................

(DR. B.R. SARANGI) JUDGE .....................................

(SAVITRI RATHO) JUDGE