SOUMEN SEN,J. - (1.) Without going into the aspect as to whether there is any inaccurate submission made on 19th June, 2017 or it was a complete misreading of the pleading on the part of the Court in passing an ad interim order in favour of the plaintiff, the Court invited the parties to argue on merits as the interim order is operative till this date. The court looks at the matter afresh and invited the parties to make submissions in support of their respective cases. Being totally uninfluenced by the observations made in the earlier order, the matter is considered afresh.
(2.) The plaintiff appears to have participated to a tender for dredging of Lock and Approach Jetty and de-siltation of grooves, camber of Lock Gates and Dry Dock Gates at Kidderpore Dock at Netaji Subhas Dock issued by the Kolkata Port Trust 9th December 2016. The tender document requires deposit of earnest money in clause 7, which reads:- "7.0 EARNEST MONEY DEPOSIT: 7.1 The bidders shall be required to deposit INR Rs.40 Lakh as 'Earnest Money Deposit' (EMD) payable to 'Kolkata Port Trust' by Banker's Cheque or Pay Order or Demand Draft, payable at Kolkata. Alternatively, an amount of INR 10.0 Lakh (Rupees ten lakh) shall be paid by Banker's Cheque/Demand Draft/Pay Order and the balance amount may be submitted in the form of a Bank Guarantee issued by any Indian nationalized / scheduled bank, having branch at Kolkata, In the event of issuing Bank Guarantee by any branch outside Kolkata, any Kolkata Branch of such Bank shall confirm the same and stand by for all the commitments under the Bank Guarantee. In all cases, any dispute regarding such Bank Guarantee will be adjudicated under the jurisdiction of The Calcutta High Court. Specimen EMD format is enclosed at Annexure-II. The Bank Guarantee shall remain valid for a period of 6 months from the scheduled date of opening of Part-I of the bid with a further claim period of one month. EMD is to be submitted offline and the scan copy needs to be uploaded. 7.2 Earnest Money of unsuccessful bidders will be refunded within 2 months of opening the Price bid or on finalization / acceptance of tender, whichever is earlier. If Price bid is opened before expiry of validity of Earnest Money Instrument, the same will be refunded to bidders other than the L-I bidder. EMD of L-I bidder will only be encashed. IF Price bid cannot be opened for any reason before expiry date of Earnest Money Instrument, the bidder would be requested to extend the validity of the EMD Instrument within the validity period of the offer, failing which the EMD instrument would be encasshed. Tender submitted without EMD shall not be considered. 7.3 After conclusion of Tender process, EMD of successful bidder will be returned without interest after submission of Security Deposit. However, the contractor may be allowed to convert the EMD as a part of Security Deposit. In case the successful bidder fails to accept the contract or fails to submit the Security Deposit, the EMD will be liable for forfeiture."
(3.) In terms of the aforesaid clause, the plaintiff furnished a bank guarantee dated 3rd January, 2017 for a sum of Rs.30 lakh. It appears from the recital of the said bank guarantee that the plaintiff, in terms of the aforesaid tender, has furnished the said bank guarantee for fulfilment of the terms and conditions contained in the said contract. The said bank guarantee is unconditional in terms. The following paragraph of the bank guarantee makes it clear:- "We, the Bank, further agree that if a written demand is made by the Trustees through any of its Officials for honouring the Bank Guarantee constituted by these presents, We the Bank, shall have no right to decline to cash the same for any reason whatsoever and shall cash the same and pay the sum so demanded to the Trustees within a week from the date of such demand by an A/c Payee Banker's Cheque drawn in favour of "Kolkata Port Trust" without any demur. Even if there be any dispute between the contractor and the Trustees, this would be no ground for us, Corporation Bank, Worli Branch, to decline to honour the Bank Guarantee in the manner aforesaid. The very fact that We the Bank, decline or fail or neglect to honour the Bank Guarantee in the manner aforesaid shall constitute sufficient reason for the Trustees to enforce the Bank Guarantee unconditionally without any reference, whatsoever, to the contractor." ;