WP(C) 379/2010 BEFORE THE HON’BLE MR JUSTICE BP KATAKEY The petitioner, which is a company registered under the Companies Act, 1 956, by the present petition has prayed for setting aside and quashing the commu nication dated 12.1.2010 issued by the Sr. Divisional Mechanical Engineer, NF Ra ilways directing the petitioner company to furnish the requisite bank guarantee within 20.1.2010 and also to submit the list of staff activity-wise with their b io-data details and photo identity cards. The petitioner has also prayed for a d irection to the respondent Railways not to withdraw the letter of acceptance dat ed 22.9.2009, not to terminate the contract and also not to blacklist the petiti oner. The notice inviting tender was issued on 24.6.2009 by the respondent Rai lways for and on behalf of the President of India for mechanized cleaning of coa ches (external and internal) water topping and pad locking of all coaches at DBR G & DBRT washing pit lines for a period of three years, approx. cost Rs. 1,60,19 ,850/-; provision of toiletries in AC coaches for a period of three years, appro x. cost Rs. 8,87,271/-; mechanized cleaning of Pit line and Sick line including office premises at coaching depot DBRG & DBRT approx. cost Rs. 15,17,999/-; mech anized on board housekeeping services (OBHS) on primary maintained rakes of mail /express trains for a period of three years approx. cost Rs. 1,28,72,082/- total approx. cost Rs. 3,12,97,202/-. The petitioner submitted its bid for such contr act and accordingly the contract was awarded by the respondent Railways in favou r of the petitioner by issuing the letter of acceptance dated 22.9.2009 requirin g submission of the performance guarantee in the form of requisite irrevocable b ank guarantee of 5% of the contract value of Rs. 3,37,54,950/- i.e. Rs.16,87,748 /-. Since the performance guarantee was not furnished pursuant to the letter of acceptance dated 22.9.2009 no agreement was executed between the parties. The Ra ilway authority, in view of non-submission of the performance guarantee by the p etitioner, from time to time issued several communications to the petitioner for submission of the performance guarantee, last being on 12.1. 2010 (Annexure -P1 4 to the writ petition). The petitioner on receipt of the said communication, vi de communication dated 13.1.2010 (Annexure-P15 to the writ petition), informed t he respondent authority that the requisite performance guarantee shall be deposi ted within the time stipulated by the communication dated 12.1.2010. Since despi te such communication and undertaking given by the petitioner the performance gu arantee was not deposited, the letter of acceptance issued to the petitioner was cancelled on 1.2.2010 (Annexure-R8 to the Misc. Case No. 594/20100 filed by the Railway administration). The Railway administration issued fresh NIT for the sa id work. The petitioner, however, before cancellation of the letter of acceptanc e by the Railways approached this Court in the present writ petition wherein an interim order was passed on 25.1.2010 to the effect that until the next date the contract awarded to the petitioner shall not be cancelled on the ground of non furnishing of performance guarantee as the petitioner contended that only becaus e the Railways have failed to make available the requisite number of coaches the cleaning target could not be reached by the contractor. The Railway administrat ion in view of the said order passed, which was subsequently communicated, kept the order of cancellation of the letter of acceptance dated 12.1.2010 in abeyanc e. Ms Thakuria, learned counsel for the petitioner has submitted that since requisite number of coaches i.e. 84,315 in terms of the letter of acceptance da ted 22.9.2009 could not be made available by the Railway administration to the p etitioner for the purpose of the work allotted to it, the petitioner filed sever al representations before the Railway administration for increasing the number o f coaches and since nothing has been done by the Railway administration the perf ormance guarantee could not be provided. The learned counsel, therefore, submits that unless the Railway administration undertakes to provide the requisite numb er of coaches in terms of the letter of acceptance dated 22.9.2009, the Railway administration cannot insist on furnishing of the performance guarantee as conte mplated in the letter of acceptance dated 22.9.2009. Ms Thakuria further submits that the communication dated 18.1.2010, which is annexed as Annexure-R to the M isc. Case filed by the Railway administration, has been received by the petition er only after filing of the writ petition and the petitioner shall furnish the p erformance guarantee provided the Railway administration gives assurance to the petitioner to provide the requisite number of coaches for the works allotted to the petitioner. Mr. Nair, learned standing counsel appearing for the respondent Railways referring to the communication dated 12.1.2010 (Annexure-R6 to the Misc. case) has submitted that the Railway administration on receipt of the petitioners comm unication dated 7.1.2010 extended the time for furnishing the requisite performa nce guarantee and the list of staff activity-wise with their bio-data details an d photo identity cards till 20.1.2010 and the petitioner on receipt of the said communication has accepted the condition for furnishing the performance guarante e within the time stipulated by the Railway administration vide communication da ted 13.1.2010, but the petitioner in spite of the same has not deposited the per formance guarantee as required in terms of the letter of acceptance dated 22.9.2 009 till date. Mr. Nair, therefore, submits that the petitioner is not entitled to relief as claimed in the present writ petition. It is evident from the letter of acceptance dated 22.9.2009 that the pet itioner is required to furnish the performance guarantee in the form of irrevoca ble bank guarantee for Rs. 16,87,748/- being 5% of the contract value offered by the petitioner. The respondent Railways from time to time informed the petition er to furnish the bank guarantee and execute the agreement in terms of the lette r of acceptance dated 22.9.2009, the last being on 12.1.2010, contents of which is quoted below: - \In response to your letter mentioned above, you are requested to fulfil l the following conditions within 20th January/10 and attend to this office for signing the Contract Agreement within 20th of January/10 without fail. If these conditions are not fulfilled within the period given, the tender will be termina ted. 1. Requisite Performance Bank Guarantee. 2. List of staff activity wise with their bio-date details and Photo Identity Ca rd required for the staff engaged for the work.\ The petitioner on receipt of the said communication dated 12.1.2010 vide communication dated 13.1.2010 to the Railways undertook to furnish the perfor mance bank guarantee within the time stipulated by the Railway administration. A dmittedly, the performance guarantee has not been furnished by the petitioner ti ll date which is required for due performance of the work by the petitioner for which it has submitted the tender. The letter of acceptance being conditional i. e. on fulfillment of the conditions stipulated therein i.e. furnishing of the pe rformance guarantee and since the petitioner vide communication dated 13.1.2010 undertook to deposit the performance guarantee within the time stipulated, canno t subsequently turn around and complain that such performance guarantee cannot b e furnished unless the Railway administration make available the requisite numbe r of coaches as mentioned in the letter of acceptance dated 22.9.2009. It also appears from the communication dated 18.1.2010 (Annexure-R1 to t he Misc. case), the receipt of which has not been denied by the petitioner, thou gh according to the petitioner the same was received after filing of the writ pe tition, the Railways had informed the petitioner that the number of coaches as p er the tender documents would be made available to permit the work for which the letter of intent was issued. The petitioner till date in spite of that has not deposited the performance guarantee. In view of the above, the relief claimed in the present petition cannot be granted. At this stage the learned counsel for the petitioner has submitted that the earnest money deposited by the petitioner may directed to be refunded. Mr. Nair, the learned standing counsel for the Railways has submitted th at because of the failure on the part of the petitioner to fulfill the condition s stipulated in the letter of acceptance dated 22.9.2009 such earnest money has been forfeited. Since the said matter is not an issue in the present writ petition, it i s open to the petitioner to make representation before the Railway authority for refund of the earnest money and in case any such representation is filed by the petitioner the Railway authority shall consider the same and pass necessary ord er. The other prayer in the writ petition is for a direction to the responde nts not to blacklist the petitioner company. Admittedly, till date no notice has been issued to the petitioner to sho w cause as to why they shall not be blacklisted. Mr. Nair has also submitted that the Railways till date have not taken a ny decision relating to blacklist the petitioner. In view of the above, it is needless to say that in the event the Railwa y administration takes any decision for the purpose of blacklisting the petition er, necessary notice to show cause shall be issued to the petitioner and reasona ble opportunity of being heard shall be given to the petitioner before any final decision is taken in that regard. The writ petition stands dismissed with above observations. No cost.