Delhi High Court
Rajesh Rai vs Delhi Development Authority on 1 July, 2020
SINDHU KRISHNAKUMAR
03.07.2020 17:42
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st July, 2020
+ W.P.(C) 3720/2020
RAJESH RAI ..... Petitioner
Through: Petitioner in person.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Mrinalini Sen Gupta and Ms.
Nihaarika Jauhari, Advocates.
(M:9873367274)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been held through video conferencing.
CRL.M.A. 13335/2020 (for issuance of ad interim order)
2. The Delhi Development Authority ("DDA") issued a public notice for
E-Auction of Expandable Housing Plots Properties on an "as is where is
basis". The Petitioner registered for the said auction, paid the first tranche
of the earnest money deposit and submitted the requisite documents. He was
one of the successful bidders for Plot No.578, Pocket-3, Sector-19, Dwarka,
Delhi. According to the Petitioner, LOI ("Letter of Intent") was to be issued
by the DDA giving details of the procedure for deposit of the further
amount.
3. The Petitioner received the LOI dated 17th June, 2020 on 18th June,
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
2020. According to Mr. Rajesh Rai, the Petitioner in person, he was to be
given at least 7 days' period to deposit the money and clear the payment but
7 days' time was not given by the DDA. The present petition has been filed
by the Petitioner seeking extension of date for payment of the remaining
amounts and also for determination of the actual amount to be paid at the
second stage.
4. On 24th June, 2020 this Court had granted an interim order subject to
the Petitioner depositing a sum of Rs.4,33,485/- by 26th June, 2020.
However, since the deadline had passed, the DDA's portal did not accept the
payment of the Petitioner. The Petitioner, accordingly, placed the copy of
the demand draft, which he had got prepared to show his bonafides. On
26th June, 2020, ld. counsel for the DDA made further submissions and also
supplied the calculation of 20% Bid Premium Amount, which is to be
deposited. The matter was then adjourned as it was expected that the DDA
may extend the deadline for deposit.
5. Today, Ms. Mrinalini Sen, ld. counsel for Respondent has reverted
with instructions and submits that the last date for payment of earnest money
deposit has been extended for all applicants by DDA, till 15th July, 2020.
6. Mr. Rajesh Rai, submits that there is a dispute as to the actual amount
payable as deposit and according to him, the amount payable is
Rs.4,33,485/-. However, ld. counsel for DDA submits that the amount
payable is as per clause 2.2 i.e. 20% of the bid amount has to be deposited
by the Petitioner, which is Rs.17,03,322/-.
7. The calculations given by the parties is as under:
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
a) Calculation given by the Petitioner:
"Amount to be deposited as per letter dated
17.06.2020 - Rs.4,33,485 /-
CALCULATION
QUOTED PRICE: Rs 78,29,110
RESERVE PRICE: Rs 50,79,110
Quoted price exceeds the reserve price: Quoted
Price (Rs 78,29,110) minus Reserve Price (Rs
50,79,110) = Rs 27,50,000
Therefore, the quoted price exceeds the reserve
price by Rs 27,50,000
As per the Letter bearing no.
LD/LABR/0005/2019/AUC/F1-LAB-RESDL-I/523
dated 17.06.2020 25% of the quoted price exceeds
the reserve price i.e., 25% of Rs 27,50,000 = Rs
6,87,500
5% Earnest Money Deposited is Rs 2,54,015.
The amount by which 25% exceeds the reserve
price is = Rs 4,33,485/-"
b) Calculation given by the Respondent/DDA:
"As per Clause 2.2 of the e-auction document:
(At page 41)
To be able to participate in e-auction, the
prescribed EMD amounting to 25% of the bid
premium is to be submitted in 2 stages as follows:
a) 5 percent of Reserve Price at first stage by all
bidders, i.e.-
5% of Reserve Price = 5% of Rs. 50,79,110 = Rs.
2,53,955
(this amount stand paid)
b) 20% of the Bid Premium and difference of 5%
reserve price at second stage by successful bidder
within 7 days-
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
20% of Rs. 78, 29,110 = Rs. 15,65,822/-
and
difference of 5% reserve price =
5% of 27,50,000 (Rs. 78,29,110 - Rs. 50,79,110) =
Rs. 1,37,500/-
Therefore Amount to be paid by the Petitioner as
per Clause 2.2 is = Rs. 2,53,955 + Rs. 15,65,822 +
Rs. 1,37,500 which amounts to Rs. 19,54,277/-
Amount already Paid Rs. 2,53,955
Amount to be therefore paid by the Petitioner
within 7 days of 18-6-2020 was = Rs. 17,03,322/-
The Petitioner has failed to pay facilitation
charges within 3 days of the issue of LOI.
(Auction Processing fees equivalent to 0.95% of
the H1 Bid + applicable GST)."
8. This Court has perused clauses 2.2 and 2.4 of the tender document,
which read as under:
"2.2 Earnest Money Deposit: To be able to
participate in e-auction, the prescribed EMD
amounting to 25% of the bid premium is to be
submitted in two stages as follows:
(a) 5% of the Reserve price at first stage by all
Bidders i.e. before participation in the e-
auction programme.
(b) 20% of the Bid premium and difference of 5%
reserve price at second stage by successful
bidder (H-1 Bidder) within seven days from the
issue of LOI after acceptance of their bid by the
competent authority.
(c) If the successful bidder fails to deposit balance
20% EMD (second stage) in 7 Day's period
then EMD of 5% Submitted at the time of
Participation would be forfeited.
(d) The EMD shall be payable on-line through
NEFT/RTGS/E-PAYMENT on DDA's e-auction
portal i.e.
www.tenderwizard.com/DDAAUCTION.
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
Detailed instructions to guide the bidder
through the e-Payment steps are available on
the said portal/website.
(e) No offer/bid shall be accepted without
successful payment of Earnest Money Deposit.
(f) The Earnest Money Deposit will be adjusted in
the payment against the premium of bid
Payable to the Authority by the successful
Bidder (H-1 Bidder).
(g) The Earnest Money Deposit paid by the
bidders, whose offers have not been accepted
shall be returned to them without any interest.
The same shall be refunded electronically in
their Bank account of the unsuccessful bidders
within 15 days of the completion of auction
process. The advance deposit shall not be
adjusted against any other scheme.
(h) Only the Bidders making payments of first stage
EMD, will be allowed to participate in the e-
auction process.
XXXXXXXXXXXXXX
2.4 Evaluation of Bid
2.4.1. The accepting officer, subject to
confirmation of the VC, DDA, normally accept the
highest Bid for a plot, provided that it is above the
reserve price and found to be competitive enough
to reflect the market value of the plot auctioned
for.
2.4.2. The confirmation of the highest Bid shall be
in the sole discretion of the Vice Chairman, DDA
who does not bind himself to confirm the highest
bid and reserve to himself the right to reject all or
any of the bid without assigning any reasons. Any
Bid not fulfilling any of the prescribed conditions
or incomplete in any respect shall be rejected.
2.4.3. After the bids are confirmed/accepted by
the Competent Authority, a communication shall
be sent to the successful bidder and the second
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Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
stage EMD (20% of the premium offered) to be
submitted within 7 days from the Date of issue of
LOI online payment. In case the second stage
EMD is not submitted within the stipulated period,
the first stage EMD (5% of the reserve price)
submitted along the Bid shall be forfeited.
2.4.4. After deposit of second stage EMD, the
DDA shall issue a Demand -cum - Allotment
Letter for the plot to the bidder whose bid has been
accepted through registered post calling upon him
to remit the balance 75% amount/premium of the
bid offered within 90 (ninety) days of issue of this
Letter.
2.4.5. In case the payment of balance premium is
not received within the stipulated period as
indicated above and in the Demand-cum-Allotment
Letter, the bid shall automatically stand cancelled
and the entire EMD (25% of premium offered)
shall stand forfeited without any notice. In that
eventuality, DDA shall be at liberty to re-auction
the plot.
2.4.6. The VC or the Accepting Officer shall
within 15 days of the date of completion of e-
auction process, communicates to all other
bidders, non-acceptance of their bids and return
the earnest money received from them without any
interest.
2.4.7 The bidder after submission of Bid shall
not be permitted to withdraw, surrender or modify
his bid on any ground whatsoever. If he withdraws
or surrenders the Bid, the entire amount of earnest
money shall be forfeited which shall be without
prejudice to other rights or remedies available to
DDA."
9. A perusal of the above clauses shows that there are three stages in this
tender:
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Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
a) Stage I: Stage I is when the bidder participates in the e-auction
programme. At this stage, 5% of the reserve price is to be deposited by
the bidder.
b) Stage II: Stage II occurs after the bid has been submitted by the bidder
and the same has been found successful. The bid amount quoted by the
bidder is higher than the reserve price. Once the bid was successful, the
LOI is to be issued by the DDA. Within seven days of the issuance of the
LOI, the amount to be deposited is:
i) 20% of the bid amount; and
ii) the difference of 5% reserve price and the bid amount.
In effect, at this stage a total 20% of the bid amount is to be collected by
the DDA.
c) Stage III: Stage III is the stage of issuance of Demand-cum-Allotment
Letter, at which stage 75% of the bid amount is to be deposited.
10. The question that arises is, what is the amount that is to be paid at
Stage II by the Petitioner.
11. A perusal of the calculation submitted by the DDA shows that the
reserve price in this bid was Rs.50,79,110/-. The Petitioner's bid was
Rs.78,29,110/-. Accordingly, at Stage I, the Petitioner had to deposit 5% of
Rs.50,79,110 i.e., Rs.2,53,955/- which has been paid. At Stage II, the
Petitioner has to pay the two amounts i.e., 20% of the bid amount i.e.
Rs.15,65,852/- and 5% of the difference between the reserve price and the
bid amount i.e., Rs.1,37,500/-. Thus, the total has been correctly calculated
by the DDA as payable as Rs.17,03,322/-
12. The interpretation given by the Petitioner to clause 2.2(b) is not
correct. The ultimate intention of the clauses is that in these three
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Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
instalments, the entire bid amount should be paid to the DDA. Accordingly,
the calculation given by the DDA is accepted.
13. The LOI was served upon the Petitioner only on 18 th June 2020. The
said date has now been extended by the DDA till 15th July 2020. Thus, the
Petitioner is entitled to avail of the extension for making the requisite
payment. Mr. Rajesh Rai, submits that due to the Covid-19 pandemic,
further extension of three months may be granted for payment of the deposit.
14. This Court is of the prima facie view that such extensions cannot be
directed by the Court specifically qua the Petitioner. It is up to the DDA, to
grant extensions, as a policy decision, due to the COVID-19 lockdown,
which it has already done. No further extensions can be granted by the Court
on its own, contrary to the bid conditions. Accordingly, at the interim stage,
the only direction that the Court can pass is that the Petitioner shall deposit
20% of the bid amount in terms of clause 2.2 (b) i.e., Rs.17,03,322/- by 15th
July 2020 or any other further date, as may be extended by the DDA as per
its own policy decision. If the Petitioner fails to deposit the 20%, then the
consequences would follow as per the conditions in the Tender.
15. The present application is disposed of in the above terms.
W.P.(C) 3720/2020 & CRL.M.A. 13751/2020
16. Let the counter affidavit be filed within four weeks. Rejoinder to be
filed within four weeks thereafter.
17. List for hearing on 25th August, 2020.
PRATHIBA M. SINGH
JUDGE
JULY 01, 2020/dk/A
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:03.07.2020 15:40
