Pasithea Infrastructure Limited v. Solar Energy Corporation of India & Anr

NAVIN CHAWLA, J DECEMBER 22, 2017/NK/vp

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP(I)(COMM) 148/2017 Reserved on: 14th December, 2017 Date of decision:22nd December, 2017 PASITHEA INFRASTRUCTURE LIMITED ..... Petitioner Through: Mr.Rajat Navet, Adv. versus SOLAR ENERGY CORPORATION OF INDIA & ANR. ..... Respondents Through: Mr.Bharat Sangal, Ms.Anindita Deka, Ms.Isha Gupta & Ms.S.Sapandana Reddy, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereafter referred to as the "Act") has been filed by the petitioner inter alia seeking the following reliefs: "(a) pass an order of injunction in favour of the Petitioner and against the Respondent No.1 restraining the Respondent No.1 from invoking and/or encashing and/or receiving money in any manner and to any extent whatsoever under the Bank Guarantees being Bank Guarantee Nos.OGT0005160001863 & OGT0005160001871, both dated 29.01.2016 for a total sum of Rs. 1,20,00,000/- (Rupee One crores Twenty lakhs only) till final adjudication of the arbitration proceedings; (b) pass an order of injunction in favour of the Petitioner and against the Respondent No.2 restraining the Respondent No.2 from encashing and/or making payment to Respondent No.1 under the Bank Guarantees bearing Bank Guarantee Nos. Page 2 OGT0005160001863 & OGT0005160001871, both dated 29.01.2016 for a total sum of Rs.1,20,00,000/- (Rupees One crores Twenty lakhs only) till final adjudication of the arbitration proceedings;" 2. The Respondent No. 1, on 9th September, 2015, invited bids from eligible bidders to participate in the Request For Selection (RFS) for design, engineering, manufacture, supply, erection, testing and commissioning including warranty, operation and maintenance for a period of twenty five years of roof top, solar PV Power system in different States in India for a total grid of 50 MWs roof top grid connected scheme of CPWD-Phase V. 3. The bidder in terms of Clause 3.15 of the RFS was to furnish the Performance Security/Performance Bank Guarantee (PBG). Clause 3.15 is reproduced herein below: "3.15 PERFORMANCE SECURITY/PERFORMANCE BANK GUARANTEE (PBG) 3.15.1 Within 30 days from the date of issue of Allocation letter, Successful Bidder shall furnish the Performance Security calculated in the same manner as Bid Bond amount for the allocated capacity only. PBG shall be submitted for different states of India (i.e. PART-II). The formula applicable to calculate the PBG amount will be: PBG amount for W.B = (Rs. 30.00 Lakh) X Allocated Capacity in MWp in a State. 3.15.2 The Performance Security shall be denominated in Indian Rupees and shall be in one of the following forms: a. a demand draft, or a bank guarantee from the List of banks as given in Annexure-B b. be confirmed for payment by the branch of the bank giving the bank guarantee at New Delhi Page 3 3.15.3 The PBG shall be forfeited as follows without prejudice to the Bidder being liable for any further consequential loss or damage incurred to SECI. a. If the Successful Bidder is not able to identify the projects and submit Project Sanction Documents to the satisfaction of SECI, PBG amount, pro-rata to the capacity for which the Successful Bidder is not able to identify the Projects and submit Project Sanction Documents. b. If the Successful Bidder is not able to commission the projects to the satisfaction of SECI, PBG amount, pro-rata to the capacity not commissioned by the Successful Bidder. However, Hundred percent (100%) PBG amount furnished for the Sanctioned Capacity, if the Successful Bidder fails to Commission the Projects(s) to the satisfaction of SECI, for the already identified locations, which are notified by SECI in the RFS or otherwise and for which allocation letter/sanction letter has been issued. c. In all the above cases corresponding unidentified/non- commissioned capacity shall stand cancelled. 3.15.4 The Performance Security shall be valid for a minimum period of 18 months from t