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Court No. 1
Writ Petition No. 6691 (MB) of 2010
M/s Rakesh Yadav
Vs.
The State of U.P. and others.
Hon'ble Pradeep Kant, J.
Hon’ble Ritu Raj Awasthi, J.
Heard the counsel for the petitioner Miss Parul Kant and Sri Shishir
Jain for respondents no. 2 and 3.
The petitioner was awarded contract for construction and
maintenance of roads in district Sitapur by U.P. Rajkiya Nirman Nigam Ltd.
on 15.4.08.
The petitioner feels aggrieved by encashment of bank guarantee as
is evident by the letter written by Additional Project Manager to the Senior
Branch Manager, Vijaya Bank, Navyug Market, Ghaziabad on 3.7.2010.
Learned counsel for the petitioner submits that without giving any
information and without disclosing the reason as to why the bank guarantee
is being encashed, the aforesaid effort is being made.
Sri Shishir Jain has produced before us a photocopy of the letter
dated 27.10.09, which is addressed to M/s Rakesh Yadav, the present
petitioner, and has been sent by registered post. Photocopy of the registered
postal receipt showing the aforesaid dispatch has also been produced before
us. Both the documents are being placed on record.
The aforesaid letter says that according to the contract bond, the date
of completion of work was 31.1.09 but even upto 30.6.09 less than 30% of
the work has been done. The letter further says that the petitioner was
cautioned and reminded though various letters by the Engineer Incharge but
all in vain and that the petitioner has violated the provisions of the contract
and committed breach of contract and, therefore, its contract bond is being
terminated.
Learned counsel for the petitioner again submitted that this letter
since was not received by the petitioner, therefore, she is not aware about
the same.
Firstly, there is presumption of service of such a letter, which has
been sent by registered post and secondly, writ petition against encashment
of bank guarantee, in a matter where contract bond has been cancelled,
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would not lie, under Article 226 of the Constitution.
The relief claimed thus, cannot be granted in writ jurisdiction.
The petitioner has the remedy of approaching any other forum, as
may be available under law.
The petition is dismissed, subject to aforesaid liberty.
Dated: 19.7.2010
MFA