Delhi High Court
Suraj Chaudhary vs The Executive Director Delhi ... on 19 July, 2017
$~30 & 31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6020/2017 & CM No. 25026/2017
SURAJ CHAUDHARY ..... Petitioner
Through: Mr Roshan Lal Goel and Ms Anju
Gupta, Advocates.
versus
THE EXECUTIVE DIRECTOR DELHI TRANSPORT
INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD. AND ORS ..... Respondents
Through: Mr Gautam Narayan, ASC for
GNCTD.
AND
+ W.P.(C) 6021/2017 & CM No. 25028/2017
DAYAL CHAND KANDPAL ..... Petitioner
Through: Mr Roshan Lal Goel and Ms Anju
Gupta, Advocates.
versus
THE EXECUTIVE DIRECTOR DELHI TRANSPORT
INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD. AND ORS ..... Respondents
Through: Mr Gautam Narayan, ASC for
GNCTD.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 19.07.2017
VIBHU BAKHRU, J
CM APPL. 25027/2017 in W.P.(C) 6020/2017
CM APPL. 25029/2017 in W.P.(C) 6021/2017
1. Exemptions are allowed, subject to all just exceptions.
2. The applications are disposed of.
W.P.(C) 6020/2017 & W.P.(C) 6021/2017
3. The petitioners have filed the present petitions, inter alia, seeking
refund of a sum of `3,00,000/- each, which was deposited by the said
petitioners along with their bids for allotment of shops, which were
submitted pursuant to a notice inviting tender (hereafter 'the NIT') dated
04.01.2017. The said NIT was issued by respondent no. 1 (DTIDC) for
inviting offers for allotment of shops in Departure Block, Ground Floor,
ISBT, Kashmere Gate, Delhi. The petitioner in W.P.(C) No.6020/2017 bid
for shop no.41 and the petitioner in W.P.(C) No.6021/2017 submitted a bid
for shop no.47. Both the bids were furnished on the last date for submission
of bids; that is, on19.01.2017.
4. It is an admitted case that no allotment letter was issued to the
petitioners within a period of 120 days from submission of the bids. Mr
Gautam Narayan, learned counsel for the respondents submits that this was
so because a petition had been filed by another bidder (Mr Raman Kalra) :
W.P.(C) No.713/2017 captioned as 'Raman Kalra v. Govt. of NCT of Delhi
and Ors' in respect of the said shops. Mr Raman Kalra, for the same shops
bid in an earlier round but had failed to accept the allotment within the
specified time. Although, no interim order was passed in that petition;
nonetheless, in deference to the proceedings instituted before this Court,
DTIDC refrained from issuing an allotment letter to the petitioners herein.
The petitioners requested for refund of the earnest money deposited (EMD)
by them after a period of 120 days from the submissions of bid had elapsed.
5. The only question to be examined is whether they are entitled to such
refund.
6. Clauses 5.5 and 5.6 of the NIT are relevant to address the aforesaid
controversy and are set out below:-
"5.5 Bid Security/Earnest Money Deposit (EMD):
Tenderer have to deposit, along with its tender, a
refundable bid security/EMD of an amount mentioned
in the Annexure-1 of this tender against each shop in
the prescribed form. The Bid Security/EMD shall be
payable in the form of a Demand Draft/Pay
Order/FDR drawn or any Indian Scheduled
Bank/Indian Branch of Foreign Bank in favour of
"Executive Director, DTIDC" payable at New
Delhi only. The tender/bid offer shall be valid for a
period not less than 120 days from the date of
submission of tender. The bid security/EMD has to
be re-validated by the Tenderer/bidder on the demand
of DTIDC, it has validity period of less than 120
days. If Tenderer does not comply with the request of
DTIDC the bid security/EMD will be encashed by
DTIDC. The bid security/EMD of the selected
Tenderer shall be adjusted against the Interest Free
Security Deposit/Licence fee etc. as per tender
Document. The bid security/EMD of unsuccessful
Tenderer shall be refunded after finalization of tender
process, without considering any interest thereof. The
Tender shall be summarily rejected if it is not
accompanied by the appropriate amount or form of
Bid Security/EMD. If the selected Tenderer/bidder
withdraws his/her bid/tender at any stage, his/her Bid
Security (EMD) shall be forfeited by the DTIDC and
he/she will also be debarred from taking participation
in Tenders/RFP of DTIDC for this financial year and
next four financial years.
5.6 No tender/bid shall be modified or withdraw by the
Tenderer/bidder after the submission of tender on due
date of submission of tender. Withdrawal of a
tender/bid during the interval between the due date of
submission of tender and date of expiry of the tender
validity period would result in automatic forfeiture of
Bid Security/EMD. Apart from that the Tenderer will
also debar from participating in the Tenders/RFP of
DTIDC for this financial year and next four financial
years."
7. A plain reading of the said two clauses clearly indicates that bidder
was not permitted to withdraw his bid within a period of 120 days and any
attempt to do so would result in forfeiture of his bid security. The bid
security was also to be kept alive for a period of 120 days. It is plainly clear
from the above that after the validity period of 120 days was over, there was
no impediment in the petitioners' withdrawing their bid. There was no
obligation on the part of the petitioners to persist with their offer after the
period of 120 days from the submission of the bids had elapsed.
Concededly, the petitioners' tender had not been accepted and no contract
had fructified between the parties. It is trite law that an offer can be
withdrawn at any time before it is accepted. In these cases there was an
added obligation that precluded the petitioners from withdrawing the bids
prior to the lapse of 120 days from the date of submission of the bids; but,
thereafter, there was no restriction to do so.
8. The petitioners would thus be well within their right to seek
withdrawal of the EMD. In the circumstances, the present petitions are
allowed and the respondents are directed to refund the EMD furnished by
the petitioners within a period of two weeks from today.
9. The petitions and the pending applications are disposed of.
10. Order dasti under signatures of the Court Master.
VIBHU BAKHRU, J
JULY 19, 2017
MK
