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Judgment
W. Diengdoh, J
Heard Mr. A.G. Momin, learned counsel for the petitioner/Company, who, at the outset, has submitted that there is a defect in the cause title of this petition, inasmuch as, the name of the petitioner is noted as M/s Nagarjun Construction Company Limited (NCC), when actually the entity is now simply named as NCC Limited. It is prayed that wherever such defect appears in the petition, the same may be allowed to be rectified. On prayer made, the memo of rectification is allowed to be filed before this Court.
The learned counsel has further submitted that the petitioner is aggrieved by a communication dated 11.12.2023 (Annexure-XV) issued upon the Senior Manager, Canara Bank, Prime Corporate Branch, BR TSR Complex, Sardar Patel Road, Hyderabad, Telangana by the respondent No. 3, wherein a request has been made for extension of Bank Guarantee No. 2657BG0912015 dated 27.03.2015 of Rs. 7,56,63,255/-.
It is the contention of the learned counsel for the petitioner that the concerned project earlier known as “Shillong International Centre for Performing Arts and Culture (SICPAC)”, now known as “LARITI Performing Centre”, has since been completed and the same was handed over to the Government of Meghalaya in the Arts and Culture Department, which was duly inaugurated on 14.11.2022. In this connection, the Defect Liability Period has since expired and accordingly, there is no requirement for the said Bank Guarantee to be extended as has been prayed for in the impugned communication. It is therefore prayed that during pendency of this writ petition, the said communication dated 11.12.2023 may be stayed.
Per contra, Mr. A. Kumar, learned Advocate General has submitted that the first objection raised in these proceedings is to the maintainability of this petition, since the issue involved herein is with regard to a contract agreement and the conditions thereof and as such, in view of the well stated principles of law, the matter ought to have been agitated before a competent civil court.
Be that as it may, it would be incumbent upon the petitioner to satisfy this Court that a petition would lie before this Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution.
The learned Advocate General has also led this Court to the terms of the Performance Bank Guarantee which was annexed as Annexure-VIII of this petition, particularly at clause 8 of the same, wherein it is indicated that, it is an obligation on the part of the petitioner/contractor to discharge all their obligations under the said contract and for the Director, (Arts & Culture), Shillong/respondent No. 2 to issue a “No-demand Certificate” as far as the said Bank Guarantee is concerned, but that such certificate is not on record.
It is also the contention of the learned Advocate General that the Defect Liability Period has not yet expired, however, at this juncture, he submits that this petition may be posted for admission hearing, particularly on the issue of maintainability.
In the meantime, as far as the extension of the said Bank Guarantee is concerned, the learned Advocate General would submit that the same may be allowed to be extended during the pendency of this petition, and, or until any further order of this Court. It is also the assurance on the part of the State respondent that the said Bank Guarantee will not be encashed during such period. Meanwhile, the petitioner may be allowed to get the said Bank Guarantee extended for such period.
On consideration of the submission made, this Court is of the considered view that the submission made by the parties at this point of time be allowed.
Accordingly, the petitioner apart from its assurance that the defect as stated, be corrected, notice may also be issued upon the respondent Nos. 3-6, as stated, the State respondent Nos. 1 & 2 being duly represented today, no formal notice is required to be issued.
The petitioner shall ensure that the said Bank Guarantee is extended for the relevant period in course of these proceedings and the assurance of the State respondents that the same shall not be encashed is also noted on record.
In the meantime, the State respondents or any of the respondents herein are allowed to file their response to this petition within the next date fixed.
List this matter immediately after the Court reopens after vacation.