Shiv Kant Prashar vs Chairman
2023 Latest Caselaw 15732 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                              CWP No. 5170 of 2022
                              Decided on: 9th October, 2023
    ____________________________________________________




                                                                          .
    Shiv Kant Prashar                              ....Petitioner.





                         Versus

    Chairman, Bhakra Beas Management Board and another





                                             .....Respondents.
    _____________________________________________________
    Coram





    Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
    Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

    Whether approved for reporting? 1


    For the petitioner:                     Mr. Subhash Sharma, Advocate.

    For the respondents:                    Mr. Atul Jhingan, Advocate.



    M.S. Ramachandra Rao, Chief Justice (oral)

This Writ petition has been filed by the petitioner

assailing Annexure P-19 dt.18.05.2022 issued by the respondents

cancelling the work order dt.14.10.2020 issued by the respondents for

executing the work of "Replacement of roofing of remaining 26 Nos.

E-4 and SL-4 type quarters in BBMB Colony at Slapper", forfeiting

EMD amount of Rs.1,35,540/- deposited by the petitioner and also

suspending business dealings with the petitioner for a period of three

Whether reporters of Local Papers may be allowed to see the judgment?

years from that date invoking General Condition Sr. no.12.

2) It is not in dispute that the respondents had published an

Online tender dt.31.07.2019 for execution of the above work and the

.

petitioner participated in the said tender and his bid was accepted.

Thereafter from time to time, the respondents, for various reasons

sought extension of the petitioner's offer on 12.03.2020, 01.06.2020

and the petitioner obliged by e-mails dt.16.03.2020, 01.06.2020,

01.07.2020, 17.07.2020 and lastly on 16.09.2020 by extending his

offer up to 20.10.2020.

3) Before the expiry of the said date on 14.10.2020, the

respondents issued work order to the petitioner. The work order

required completion of the work within five months, which period

ended in March, 2021.

4) The petitioner however did not commence the execution

of work.

5) Therefore, the respondents issued Annexure P-8-Notice

dt.05.04.2021 asking the petitioner to start the work and followed it

up by Annexure P-10-Notice dt.07.04.2021.

6) For the first time on 03.05.2021 vide Annexure P-11, the

petitioner replied to the said letter issued by the respondents stating

that he had quoted minimum rate as per his tender filed on

16.09.2019, but there was delay in awarding of work up to

14.10.2020, and in the meantime the price of steel had escalated in the

market and it was impossible for him to do the work. This letter was

.

followed up by another letter dt.04.06.2021 reiterating the same.

7) After correspondences in that regard between the parties,

ultimately impugned termination order Annexure P-19 dt.18.05.2022

was issued by the respondents.

8) The learned counsel for the petitioner contended that it

was impossible for the petitioner to execute the work in question on

account of steep rise in prices of steel, but the fact remains that the

petitioner, between 16.09.2019 and 14.10.2020, had not raised the

said issue with the respondents at any point of time, and he raised it

only on 03.05.2021, after the time fixed for execution of work under

the contract had expired. The respondents had repeatedly issued

notices to the petitioner vide Annexures P-8 dt.05.04.2021, P-9

dt.06.04.2021 and P-10 dt.07.04.2021 asking the petitioner to

commence the work, but the petitioner did not do anything.

9) As per Clause 12 of the General Conditions applicable

for the tender in question, the impugned order is passed by the

respondents. The said clause states as under:

12. The earnest money/security deposit taken from the

firms/tender shall be forfeited under the following circumstance:

f. If the tenderer withdraws his tender at any stage during

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the currency of his validity period, his earnest shall stand

forfeited in full.

g. If the acceptance of tender has been issued but the

contractor refuses to comply with it, the earnest money deposited by him shall be forfeited in full, irrespective of the fact whether the BBMB sustains any loss on account of his default or not. This forfeiture shall be without prejudice to the

right of the BBMB to claim any other damage as admissible under the law as well as to take such executive action against

the contractor as blacklisting etc.

h. Where the tender has been accepted but the contractor stops the works after partially fulfilling the work erder, the security deposit shall be retained and adjusted against any

loss that may be BBMB through work being got completed from alternative source at the contractors risk & cost and or any other damage recoverable from the contractor under the

terms of work order.

i. In the event of a breach of work order in any manner, the security deposit shall be forfeited and adjusted against the

claim of the BBMB on the contractor for any loss sustained by the BBMB on account of such breach.

j. In the event of non-compliance of removal of defects within defect liability period."

10) According to the respondents they have invoked Clause

12-g, which expressly permits them to forfeit the earnest money and

also to take blacklisting action. According to them, the petitioner had

refused to comply with the terms of the contract awarded to him

through the work order dt.14.10.2020 and they were justified in

.

taking said action against him.

11) After hearing the contentions of both sides, we are

satisfied that the action taken by the respondents is valid and in terms

of Clause 12 of General Conditions of the contract agreed to between

the parties. The petitioner, having voluntarily agreed to keep his offer

extended from the date it has been made i.e. 16.09.2019 till

20.10.2020 without raising any possible difficulties which he may

face, cannot now contend that there is increase in steel price by

14.10.2020 which disabled him from executing the work.

12) Accordingly we do not find any merit in this petition and

the same is accordingly dismissed alongwith all pending applications.

                                            ( M.S. Ramachandra Rao )





                                                  Chief Justice


    9th October, 2023                         (Jyotsna Rewal Dua)
    (priti)                                         Judge