This Court on 22.03.2012 has passed the following order:
"1.Heard learned counsel for the petitioner.
The learned counsel for the petitioner has invited this court's attention to the terms of the notice inviting tender, wherein the original period for lifting the entire quantity was three months and assurance was given to captive users using the quantity in the State of Gujarat only. The said period was time and again extended and now, it is expiring on 31.03.2012. The joint venture for utilizing the lifted goods is to be in the form of special purpose vehicle along with GMDC only and that formality are yet to be completed. As a result thereof, the petitioner was not in a position to use the lifted quantity in Gujarat. A request was made to permit the quantity to utilize outside Gujarat at another plant at Calcutta but the same declined. In any case, the Bank guarantee cannot be encashed on or before 31.03.2012 and the respondent No. 2 GMDC could not be justified in demanding the penalty amount on a prorata basis as if the quantity is not lifted and therefore, the payment of penalty is accrued. Learned counsel for petitioner has submitted that bank guarantee worth Rs.3.10 crore would be extended but as on date, the demand of Rs.44 lacs and odd to be realized out of the bank guarantee may not be permitted to be carried out, especially in view of the fact that alleged penalty is not on the part of petitioner or attributed to the petitioner alone. The non-lifting of the goods is on account of non-availability of the operational plant to be put to SPV which is yet to be finalized and it is awaiting its clearance from the State Government.
In view of this, let there be a notice, returnable on 28.03.2012. In the meantime and till the returnable date, the respondent No. 2 GMDC is restrained from encashing the bank guarantee. As this order is passed ex-parte, it goes without saying that the respondents shall have right to approach this court even earlier and prior to the returnable date for vacating / modification of the order with a copy of said application to other side. Direct service permitted today. The petitioner is at liberty to communicate this order to all the concerned."
In this order Court has unequivocally recorded that "learned counsel for the petitioner has submitted that the bank guarantee of Rs.3.10 crore would be extended but as on date, the demand of Rs.44 lacs and odd to be realized out of the bank guarantee may not be permitted to be carried out, especially in view of the fact that alleged penalty is not on the part of petitioner or attributed to the petitioner alone."
In view of this, the Civil Application is required to be allowed and is accordingly allowed without prejudice to the right of the respondents to file appropriate application for vacation and/or modification of this order. Shri Chudgar's urging for not directing the petitioner to accede the bank guarantee of the entire sum of Rs. 3.10 crore and confine it only to Rs.44 lacs as per the impugned order is not justified, as in a writ petition filed under Article 226 of the Constitution of India, the parties are to be governed by the principle of fairness and equity and when the aforesaid unequivocal statement is recorded it would not be permitted the petitioner to take advantage of the order impugned and confine the bank guarantee only qua 44 lacs or the sum demanded. As it transpires during the hearing that the entire quantity is not lifted and it was absolutely open to the contracting respondent i.e. respondent no.2 to forfeit the entire bank guarantee as against that only Rs.44 lacs penalty amount is sought to be recovered.
In view of this matter, at this stage, it would not be possible or rather appropriate by this Court to accede to the prayer of Shri Chudgar, learned advocate appearing for the petitioner and hence while disposing of this Civil Application petitioner is hereby directed to renew the bank guarantee in the entire sum on or before 29.03.2012 and copy be furnished to the present applicant-respondent no.2. In case if, this direction is not complied, then it would be open to the original respondent no.2 to encash the bank guarantee by 31.03.2012.
(S.R.BRAHMBHATT, J.) Pankaj Top