Sidhu Service Station vs Bharat Petroleum Corporation ...
2006 Latest Caselaw 1585 Del

JUDGMENT

Vijender Jain, Acting C.J.

1. This writ petition has been filed on account of rejection of the tender of the petitioner. Mr. Chandhiok, learned senior counsel appearing for the petitioner has contended that the condition of earnest money deposit of Rs. 5000/- was not mandatory and in support of this contention, the learned senior counsel for the petitioner has contended that as per the chart filed by the respondent themselves in cases where pan card was not provided by the tenderer, lorry not offered or photograph not provided and in cases where tenderer and export license holder is different, the respondent has accepted offers of all such bidders. It has also been contended by the learned senior counsel for the petitioner that the petitioner is the dealer of the product of the respondent. The petitioner has its own outlet. The land wherefrom the petitioner is operating petrol pump belongs to him and an amount of over Rs. 1 lac was already lying credited in the account of the respondent and, therefore, the earnest money could have been deducted by the respondent from that account. We are afraid that the submission of the learned senior counsel for the petitioner is not well founded especially in view of the condition of tender document, Clause C at page 35 read with Clause III at page 31 which read are as under:

III. EARNEST MONEY DEPOSIT (EMD):

Tenderer shall pay EMD at the rate of Rs. 5,000/- per tank-lorry offered. The Demand Draft (DD) for total EMD shall be drawn on any scheduled Bank in favor of Bharat Petroleum Corporation Ltd. Payable at above respective location to which the tender is being submitted.

C. EARNEST MONEY DEPOSIT (EMD):

1. Tenders not accompanied by EMD of Rs. 5,000/- for each tank-lorry offered shall be rejected. EMD should be paid by Demand Draft drawn on any Scheduled Bank in favor of Bharat Petroleum Corporation Limited at the location where the tender is submitted....

2. Mr. Chandhiok, learned senior counsel has placed reliance on Sub clause 5 of Clause C of the tender document to contend that the purpose of giving EMD is just to ensure that the tenderer does not withdraw the offer or refuses to accept the offer and it is only in such cases as are envisaged in the said Sub clause 5 the earnest money can be forfeited. The genesis of the argument of learned senior counsel is that the non-deposit of earnest money cannot be considered as mandatory condition of tender as its deposit is just to ensure the performance and acceptance of the offer. The argument of the learned senior counsel has no force and we cannot subscribe to the proposition expounded by the learned senior counsel for the petitioner that non-deposit of earnest money is an ancillary condition and is a mere irregularity on the part of the petitioner. The deposit of earnest money amount cannot be considered to be an ancillary condition as in the terms and conditions of the tender the consequence of non-deposit of earnest money has been clearly spelled out in the aforesaid Clause C-1 of the tender document. We fail to understand as to when in the terms and conditions of tender document it is explicitly mentioned that tenders not accompanied by earned money deposit of Rs. 5,000/- for each tank- lorry offered shall be rejected, then, as to how the petitioner can say that the condition of non-deposit of EMD cannot be considered as a mandatory condition. We, therefore, reject this plea of the petitioner. Another argument which has been advanced by the learned senior counsel for the petitioner that the respondent has accepted the offer of other bidders although they also did not comply with the terms and conditions of tender document by not furnishing the pan card/photograph, explosive license and even the registration number of lorries to be offered by them. Without differentiating the non-performance of these terms with the term of earnest money deposit, we feel that even if the respondent has accepted the offer of such tenderer, this itself will not create any vested right in favor of the petitioner as per the settled law. This argument of the learned senior counsel for the petitioner also fails. There is nothing on record to show that the petitioner has represented to the respondent that his earnest money deposit can be adjusted from the credit balance lying with the respondent bank. We find no merit in this petition. The writ petition is dismissed.

3. The petitioner who is a dealer of the respondent is at liberty to approach the respondent in terms of Clause 4 (E) of the tender document for appropriate relief as it has been stated before us that a lorry has been purchased by the petitioner. The respondent shall consider the case of the petitioner sympathetically.