Delhi High Court
Tilak Raj Gogia vs Union Of India on 1 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 130/2017
% 1st May, 2017
TILAK RAJ GOGIA ..... Appellant
Through: Appellant in person.
versus
UNION OF INDIA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 16527/2017 (Exemption)
Exemption allowed subject to just exceptions.
C.M. stands disposed of.
RSA No. 130/2017
1. This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure, 1908 (CPC) impugning the concurrent
judgments of the courts below; of the Trial Court dated 26.10.2015 and
the First Appellate Court dated 19.12.2016; by which the courts below
have dismissed the suit for recovery of Rs.67,463/- filed by the
appellant/plaintiff and which suit was filed seeking recovery of
forfeited earnest money amount of Rs.19,700/-. An amount of
Rs.47,763/- was claimed as loss of profit. Interest was also prayed.
2. The facts of the case are that the appellant/plaintiff was a
successful tenderer in the work of Annual Repair and Maintenance of
Road under PWD Division M-412 during the year 2013-14 (Painting
of Kerb Stone & M.S. Railing on various roads under Sub Division M-
4122). The case of the appellant/plaintiff was that the
respondent/defendant refused to accept the performance guarantee
amount, required as a pre-condition of the contract, when tendered on
11.6.2013, and therefore, respondent/defendant could not have
forfeited the earnest money amount of Rs.19,700/- given under the
tender. Appellant/plaintiff also claimed loss of profit and interest and
thus totaling to the suit amount of Rs.67,463/-.
3. Respondent/defendant did not appear in the suit and was
proceeded ex-parte.
4. Appellant/plaintiff has proved on record the letter dated
30.5.2013 as Ex.PW1/1, and by which the appellant/plaintiff was
directed within 7 days of issuance of the letter to give the performance
guarantee amount. Appellant/plaintiff also filed his letter dated
11.6.2013 (Ex.PW1/3), showing that the appellant/plaintiff went to
deposit the performance guarantee amount on 11.6.2013.
Appellant/plaintiff also filed the letter of the respondent/defendant
dated 11.6.2013/Ex.PW1/4, forfeiting the earnest money. Letters
regarding re-tendering of the work have been proved and exhibited as
Ex.PW1/6 and Ex.PW1/7.
5. The admitted facts which appear on record are that when
the respondent/defendant awarded the work vide letter dated 30.5.2013
Ex.PW1/1, the appellant/plaintiff was to deposit the performance
guarantee amount within 7 days i.e by 7.6.2013 and commence the
work on the 10th day. Appellant/plaintiff did not deposit the
performance guarantee amount within 7 days and even within further
grace period of 3 days and he went to deposit the same only on
11.6.2013. Respondent/defendant therefore has rightly cancelled the
tender on account of non-compliance by the appellant/plaintiff of the
terms of the tender.
6. That earnest money deposit can be forfeited on account of
non-compliance of the terms of the tender is now well established. The
judgments of the Supreme Court in this regard are National Thermal
Power Corporation Limited vs. Ashok Kumar Singh and
Others (2015) 4 SCC 252 and State of Maharashtra and Others vs.
A.P. Paper Mills Ltd. (2006) 4 SCC 209.
7. In view of the above facts, no fault can be found with the
judgments of the courts below dismissing the suit inasmuch as the
respondent/defendant was found entitled to forfeit the earnest money.
Once the tender itself was validly cancelled and in fact no contract was
rightly entered into on account of non-compliance of pre-condition of
submitting the performance guarantee amount by the
appellant/plaintiff, therefore, appellant/plaintiff is also not entitled to
any loss of profit or interest on the amounts claimed.
8. No substantial question of law arises. Dismissed.
MAY 01, 2017/ib VALMIKI J. MEHTA, J
