JUDGMENT : Both these writ petitions have been filed for quashing various letters whereby the petitioner has been informed that a recommendation is being made to higher officials of the Drinking Water and Sanitation Department, Government of Jharkhand to forfeit the mobilization advance or to invoke/encash the Bank Guarantees furnished in lieu of the mobilization advance. Further prayer has been made for issuance of direction upon the respondents to take a decision on the petitioner’s request for extension of time made in terms with Clause 28.2 & 28.3 of the Conditions of Contract. The petitioner has also prayed for staying the invocation and/or encashment of the Bank Guarantees furnished in connection with the aforesaid contracts. 2. Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the petitioner, submits that the petitioner was awarded two contracts, one for South Zone [subject matter of W.P.(C) No. 1427 of 2021] and another for North Zone [subject matter of W.P.(C) No. 1428 of 2021], to carry out survey, designing, drawing and construction of RCC Intake Well-cum-Pump House, gang-way, water treatment plant, water reservoir, water distribution network, supply & installation of pumps, maintenance etc. for Multi-villages Scheme of Gobindpur & Nirsa Block, Rural Water Supply Scheme under the Department of Drinking Water and Sanitation, Government of Jharkhand, Division No.1, Dhanbad, Jharkhand. The contract value for Gobindpur & Nirsa Block (South Zone) was Rs.1,87,44,97,227/- and for Gobindpur and Nirsa Block (North Zone) was Rs.3,34,94,56,939/-. It is further submitted that as per the terms of the contract, the petitioner submitted the Bank Guarantees to cover the mobilization advance @10% of the contract price. The petitioner started execution of the said works with sincerity and diligence, however, due to laches on the part of the respondents, the same could not be completed within the stipulated period. It is further submitted that Clause 28 of the Conditions of Contract provides for extension of the intended completion date and as such the petitioner requested for extension of time giving full justification vide its numerous letters, but all went in vein and no decision was taken as per the mechanism provided in the contract, rather a letter dated 13.02.2021 was sent to the petitioner by the respondent No.5 alleging that the petitioner was making excuses for not completing the said works in time informing that the recommendation for forfeiting the mobilization advance was being made to the higher officials. It is further submitted that the petitioner wrote letter dated 09.03.2021 to the respondent No.5 requesting him not to take any hasty action with respect to invocation of the Bank Guarantees in view of the Conditions of the Contract which allow repayment of mobilization advance either by the original completion date or by expiry of the extended time for completion in the case where extension is applicable. The petitioner again wrote letter dated 19.03.2021 requesting the respondent No.5 not to invoke the Bank Guarantees. However, the respondent authorities have taken steps towards invocation of the Bank Guarantees and the respondent No.5 has requested the manager of the petitioner’s Bank i.e. Yes Bank Limited not to allow the petitioner to get the Bank Guarantees encashed and to allow encashment of the Bank Guarantees only through the person authorized or nominated by the respondent No.5. It is further submitted that the decision for forfeiture of mobilization advance or invocation of Bank Guarantees is absolutely arbitrary, illegal and unwarranted in absence of any decision taken by the respondents on the petitioner’s request for extension of time. It is also submitted that the respondents have failed to take and convey any decision on the request for extension of time, despite long lapse of the timelines provided in the mechanism as stipulated in Clause 28.2 & 28.3 read with Clause 32 of the Conditions of Contract. 3. Mr. Mohan Dubey, learned A.C. to A.G. appearing on behalf of the State-respondents, opposes the petitioner’s claim and submits that the present writ petitions are not maintainable in view of the nature of the dispute involved therein. It is further submitted that the petitioner was already given sufficient opportunity to complete the project, however, no progress was found in the said works and it just tried to make excuses to justify the delay. It is further submitted that finding no option, the respondent No.5 issued show cause notice to the petitioner vide letter No. 530 dated 20.03.2021 in response to its letters to clarify its stand within one week as to why a recommendation be not made to the higher officials to take action against it as per the agreement by cancelling the same and in the meantime, a direction was issued to the petitioner’s Bank not to encash the Bank Guarantees on its demand. 4. 4. Heard learned counsel for the parties and perused the relevant materials available on record. Admittedly, the time for completion of the said projects has already expired. The petitioner has claimed that the delay is attributable to the respondents as they failed to provide timely inputs, delayed in handing over encumbered land, delayed in granting various approvals and in providing permissions/clearances from the concerned department as well as also delayed in release of payments. It has been claimed that one of the causes for delay is outbreak of Covid-19 pandemic. In spite of the said facts, the respondents failed to extend the time for completion of the projects, though various letters were written by the petitioner on the said issue. 5. It would however be evident from letter No. 530 dated 20.03.2021 that the petitioner has been asked to explain its position within one week as to why the agreement be not cancelled and recommendation to higher officials for taking appropriate action be not made against it. The respondent No.5 has claimed in the said letter that the petitioner has been negligent in executing the said works. It has also been stated inter alia that due to outbreak of Covid-19 pandemic, the government had decided to extend the time for six months for those projects in which time of completion was fixed after March, 2020 and the extension sought by the petitioner till December, 2022 was not allowed looking to the physical progress of the work. It has also been claimed by the said respondent that the query regarding GST has only been made by the petitioner to consume time and to take an excuse for delay. It has further been mentioned in the letter dated 20.03.2021 that the progress of the said works in the last seven months was not satisfactory. Thus, there are allegations and counter allegations between the parties for non-completion of the said projects in time and the dispute of such factual nature cannot be adjudicated by this Court under its writ jurisdiction. 6. In the case of Noble Resources Ltd. Vs. State of Orissa & Anr. reported in (2006) 10 SCC 236 , the Hon’ble Supreme Court has held as under: “42. Moreover, certain serious disputed questions of fact have arisen for determination. 6. In the case of Noble Resources Ltd. Vs. State of Orissa & Anr. reported in (2006) 10 SCC 236 , the Hon’ble Supreme Court has held as under: “42. Moreover, certain serious disputed questions of fact have arisen for determination. Such disputed questions of fact ordinarily could not have been entertained by the High Court in exercise of its power of judicial review. 43. Ordinarily, a specific performance of contract would not be enforced by issuing a writ of/or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963, damages may be an adequate remedy for breach of contract.” 7. In the case of Joshi Technologies International Inc. Vs. Union of India & Ors. reported in (2015) 7 SCC 728 : 2015 SCC, the Hon’ble Supreme Court has held as under: “69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations. 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. 70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction. 70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary. 70.10. 70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. 70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.” 8. Moreover, it appears that vide letter dated 20.03.2021, the petitioner has been asked to reply the show cause notice within a week on the allegation levelled against it. The law relating to intervention by the Writ Court at the stage of issuance of show cause notice has been laid down by the Hon’ble Supreme Court in the case of Union of India & Anr. Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 , the relevant paragraphs of which read as under: “14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” 9. Thus, the writ petition can be entertained at the stage of issuance of show cause notice in very exceptional cases when the High Court finds that such show cause notice has been issued without jurisdiction or is wholly illegal. The petitioner has not been able to explain such an exceptional circumstance before this Court so as to entertain the present writ petitions at the stage of issuance of show cause notice to it. Moreover, the allegation made in the show cause notice is substantively factual in nature which cannot be adjudicated by this Court under the Writ jurisdiction. 10. Learned counsel for the petitioner has put strong reliance on a judgment of the High Court of Delhi rendered in the case of M/s Halliburton Offshore Services Inc. Vs. Vedana Limited & Anr. [O.M.P.(I)(COMM) & I.A. 3697 of 2020] wherein a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act, 1996’) was filed and an interim protection was sought in the nature of restraining the respondents from invoking or encashing the Bank Guarantee. In the said case, the learned Bench cited various judgments of the Hon’ble Supreme Court dealing with the scope of judicial interference in the matters of invocation or encashment of Bank Guarantee and thereafter summarized the law in paragraph 16 as under: “16. In my view, it is not necessary to multiply references to precedents, the law with respect to injunction of encashment, or invocation, of unconditional bank guarantees, being fairly well settled. In my view, it is not necessary to multiply references to precedents, the law with respect to injunction of encashment, or invocation, of unconditional bank guarantees, being fairly well settled. It is significant, however, that, where the earlier understanding of the expression “special equities”, as a circumstance in which invocation of bank guarantees could be inducted, was that such equities were limited to cases where irretrievable injustice resulted, the recent decision in Standard Chartered Bank Ltd, seems to visualise irretrievable injustice, and special equities, as distinct circumstances, the existence of either of which would justify an order of injunction. Viewed any which way, there appears to be no gainsaying the proposition that, where “special equities” exist, the court is empowered, in a given set of facts and circumstances, to injunct invocation, or encashment, of a bank guarantee. Where such special circumstances do exist, no occasion arises, to revert to the general principle regarding the contractually binding nature of a bank guarantee, or the legal obligation of the bank to honour the bank guarantee, these special circumstances having, in all cases, being treated as exceptions to this general principle.” 11. Thereafter, the learned Bench found that the delay in the said case was caused due to sudden imposition of the lockdown pursuant to outbreak of Covid-19 pandemic and having taken into consideration the petitioner’s claim that a substantial part of the work had been accomplished, granted ad-interim stay on invocation and encashment of the Bank Guarantees. Thus, the nature of the proceeding before the Bench of the High Court of Delhi was under Section 9 of the Act, 1996 and the learned Court exercised the power by granting the interim protection. The petitioner has however preferred the present writ petitions involving disputed question of facts with a prayer to restrain the respondents from invoking the Bank Guarantees which have been furnished by it in lieu of mobilization advance. 12. Now, the question before this Court is as to whether in the present facts and situation, any direction can be issued to the respondents restraining them from taking any action of forfeiting the mobilization advance or encashing the Bank Guarantees furnished by the petitioner in relation to the works in question. 13. 12. Now, the question before this Court is as to whether in the present facts and situation, any direction can be issued to the respondents restraining them from taking any action of forfeiting the mobilization advance or encashing the Bank Guarantees furnished by the petitioner in relation to the works in question. 13. Clause 49.3 of the Conditions of Contract (3rd Section of the Standard Bidding Documents) provides that if the contractor fails to comply with the time for completion as stipulated in the tender, then the contractor shall pay to the employer the relevant sum stated in the Contract Data as liquidated damages for such default and not as penalty for everyday or part of day which shall elapse between relevant time for completion and the date stated in the taking over certificate of the whole of the works on the relevant section, subject to the limit stated in the Contract Data. It further provides that the employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any money due or to become due to the contractor as per relevant recovery laws. The payment or deduction of such damages shall not relieve the contractor from his obligation to complete the work or from his any other obligation and liability under the contract. 14. Thus, the right to claim damages is with the respondents for non-completion of the work within the stipulated time for which they are at liberty to deduct the amount of damage from the money due to the contractor (the petitioner herein) and as such the said action taken by the respondents cannot be said to be beyond jurisdiction. 15. In the case of The State of Orissa Vs. Madan Gopal Rungta reported in 1952 SCR 28 , the Hon’ble Supreme Court has held as under: “On behalf of the appellant, it was urged that the Court had no jurisdiction to pass such orders under Art. 226 under the circumstances of the case. This is not a case where the Court before finally disposing of a petition under Art. 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo. This is not a case where the Court before finally disposing of a petition under Art. 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo. The question which we have to determine is whether directions in the nature of interim relief only could be granted under Art. 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In our opinion, Art. 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of S.80, Civil P. C., and in our opinion that is not within the scope of Art. 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under Art. 226 of the Constitution. In our opinion, the language of Art. 226 does not permit such an action. On that short ground, the judgment of the Orissa High Court under appeal cannot be upheld.” 16. It may be thus construed that a writ petition cannot be entertained only for granting interim relief to the petitioner. In our opinion, the language of Art. 226 does not permit such an action. On that short ground, the judgment of the Orissa High Court under appeal cannot be upheld.” 16. It may be thus construed that a writ petition cannot be entertained only for granting interim relief to the petitioner. If it is found by the Court that the nature of dispute is such that the same cannot be adjudicated by it, then any such direction in the nature of interim relief cannot be passed. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to a party on final determination of his rights in a suit or proceeding. 17. This Court is of the view that since the time for completion of the said project has already expired and there are allegations and counter allegations of the parties against each other, no direction can be issued by this Court to restrain the respondents from invoking the Bank Guarantees, if they choose to do so. 18. The petitioner has heavily relied upon Clause 28.3 of the Conditions of Contract which provides that the Engineer shall, within 14 days of receiving full justification from the contractor for extension of intended completion date, refer his decision to the Employer. The Employer shall, in not more than 21 days, communicate to the Engineer the acceptance or otherwise of the Engineer’s decision. The contractor will have to extend the date of Performance Security according to new intended completion date. 19. On going through the language of Clause 28.3, it would appear that the same does not confer right to the petitioner for extension of time, rather it is the respondent No.5, who is required to satisfy himself with the justification given by the contractor (the petitioner herein) and to refer his decision to the employer. 20. Considering the aforesaid facts and circumstances as well as keeping in view the nature of dispute involved in the present cases, I am not inclined to grant any relief to the petitioner under the extraordinary writ jurisdiction. The petitioner may, however, respond to the letter dated 20.03.2021 issued by the respondent No.5 giving appropriate explanation towards the allegation made against it. The petitioner may, however, respond to the letter dated 20.03.2021 issued by the respondent No.5 giving appropriate explanation towards the allegation made against it. It is clarified that the observation made by this Court in the present order is only with respect to the petitioner’s prayer to restrain the respondents from encashing the Bank Guarantees furnished by it in lieu of the mobilization advance, without touching the merit of the rival claims of the parties. The petitioner, if so chooses, may approach the competent Court of civil jurisdiction or any other redressal forum as per the stipulation made in the Bid Documents/agreement for adjudication of its factual plea. 21. Both these writ petitions are accordingly dismissed with the aforesaid observations. 22. Consequently, I.A No. 2004 of 2021 [W.P.(C) No. 1428 of 2021] and I.A No. 2005 of 2021 [W.P.(C) No. 1427 of 2021] also stand dismissed.