Karnataka High Court
M/S Noor Enterprises vs Mysore Minerals Ltd on 6 March, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.19353 OF 2023 (GM - TEN)
BETWEEN:
M/S. NOOR ENTERPRISES
13TH WARD, JANATHA COLONY
OPP: VISHAL TALKIES
SANDUR TALUK - 583 119
BALLARY DISTRICT.
REPRESENTED BY IT'S PROPRIETOR
MR. ISMAIL K. M.,
S/O MABUSAB
AGED ABOUT 48 YEARS.
... PETITIONER
(BY SRI SHIVAKUMAR K.B., ADVOCATE)
AND:
1 . MYSORE MINERALS LTD.,
(A GOVERNMENT OF
KARNATAKA UNDERTAKING)
REGD. OFFICE: 'A' BLOCK, 5TH FLOOR
TTMC BUILDING, BMTC
SHANTHINAGAR,
BENGALURU - 560 027.
2 . MISS. RENU
BRANCH MANAGER
M/S. M.S.T.C.,
2
NO. 19/5 AND 19/6, 3RD FLOOR
KAREEM TOWERS
CUNNINGHAM ROAD
BENGALURU - 560 052.
3 . THE SECRETARY
(MSME)
COMMERCE AND INDUSTRIES DEPT.,
VIKASA SOUDHA
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI GEORGE JOSEPH, ADVOCATE FOR R-1;
SRI SPOORTHY HEGDE, HCGP FOR R-3;
R-2 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO i) CALL FOR
THE ENTIRE RECORDS IN RESPECT OF THE PROCEEDINGS OF THE
R3 IN GOVERNMENT ORDER NO. CI 80 CMC 2016 BANGALORE,
DATED 19/04/2017 VIDE ANNX-G.; ii) QUASHING E-AUCTION
NOTIFICATION IN NO. KSMCL/MKT/E-AUCTION /
MINERAL/123/2023-24 DATED 21/08/2023 PRODUCED AT
ANNEXURE-A ONLY IN RESPECT OF MINERAL TITANIFEROUS
MAGNETITE AND THE COMMUNICATION MADE BY THE R1 TO THE
R2 IN NO. KSMCL/MKT/E-AUCTION/MINERAL/123-2023-24 DATED
21/08/2023 PRODUCED AT ANNEXURE-B AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.12.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner-M/s Noor Enterprises is before this Court
calling in question a Notification dated 21-08-2023 issued in respect
of a particular mineral, Titaniferous Magnetite and the
communication of the 1st respondent/Mysore Minerals Limited
(hereinafter referred to as 'the Company' for short) to the 2nd
respondent, a private entity and has sought certain consequential
reliefs including a direction by issuance of a writ in the nature of
mandamus to the 1st respondent and the 3rd respondent to consider
the representations of the petitioner.
2. Shorn of unnecessary details, the facts in brief, are as
follows:
1st respondent/Company on 11-01-2016 issues an e-auction
Notification in respect of a particular mineral called Titaniferous
Magnetite. The petitioner/Company which is said to be in the
business, for which the tender notification was issued, participates
in the tender and was on 8-02-2016 declared to be a successful
bidder - H1 for a notified quantity of 29,000 Metric Tonnes ('MTs'
for short) at the rate of `862/- per MT. Pursuant to declaration of
the petitioner as successful bidder, a letter of intent was issued
confirming the auction for a total quantity of 29,000 MTs which was
for a sum of `2,49,98,000/-. The mineral, in terms of the tender,
was required to be transported in four consignments, each of equal
quantity of 7250 MTs and for each consignment the divided
payment would be 62,49,500/-. In terms of the letter of intent
which contained all the details, payment was made by the petitioner
on 20-02-2016 for the aforesaid amount of first installment.
Pursuant to receipt of first installment a delivery order was issued
on 22-03-2016 for 500 MTs and was valid up to 22-04-2016. Later
the delivery order for remaining 6,750 MTs was issued as per
request of the customer.
3. When the things stood thus, Government of Karnataka in
the Department of Mines and Geology issues an order cancelling
mining lease granted to the 1st respondent/Company on the ground
that approval of the Union Government was not obtained for leasing
mineral i.e., the subject matter of the tender. The Company then
was to deposit the auction amount realized from the sale of iron ore
extracted from the mining lease with the Government. The
remaining mineral which was extracted lying in the mining site was
to be forfeited by the Department of Mines and Geology which was
to issue dispatch order from time to time. Since the tender was
already awarded in favour of the petitioner and the ore was lying,
on 19-03-2018, the Company directed the petitioner to deposit
three installments on different dates with gap of a month
amounting to `62,49,500/- for each consignment. It is only after
the deposit it was stated that dispatch of remaining iron ore would
be permitted. The installments were to be paid on three days viz.,
05-04-2018, 05-05-2018 and 05-06-2018. The petitioner did not
make any payment.
4. On 31-07-2018 a communication is made to the petitioner
that the petitioner should transport and ship iron ore on payment of
remaining installments. Again after about a year the Company
again issues a letter to the petitioner to make payment of the
remaining three installments and make suitable arrangement for
transportation of iron ore. The petitioner does not make payment
for lifting the iron ore. The country then engulfed with COVID-19
pandemic and after about two years, the Company again
communicates to the petitioner that due to pandemic and ensuing
financial instability the Company had relaxed the conditions and the
petitioner was to pay the second installment within 10 days and
remaining installments within two months. The petitioner was also
informed that mineral dispatch permits for transportation of 2150
MTs would be issued with the approval of the Department of Mines
and Geology. The petitioner then on 30-04-2021 makes payment of
the second installment. On the ground that the petitioner had made
payment of second installment, a communication was made to the
Department to direct the Senior Geologist to issue mineral dispatch
permit for transportation of 7250 MTs. On 31-07-2021 the
Department issues a memo to the Senior Geologist to issue such
mineral permit after collecting a sum of `57,67,520/- being the
second installment. It is then the mineral dispatch permit for
transportation of 7250 MTs was issued.
5. The petitioner then, for close to a year, does not lift iron
ore for transportation, on the ground that there were heavy rains
and was facing technical error with the weigh bridge. The Company
then communicates granting multiple extensions to lift and
transport iron ore. The petitioner then communicates that it could
not pay 3rd and 4th installments due to the lockdown and seeks
further time to make payment. This comes to be rejected by the
Company on 20-05-2022 on the ground that the petitioner had not
even lifted the second consignment, terminates the letter of intent
and forfeited earnest money deposit in terms of clauses of tender.
On 27-06-2023 Government issues a letter to the Company to
dispose of the available ore through MSTC e-portal. Thereafter, an
auction notification comes to be issued to auction iron ore on
21-08-2023. Immediately thereafter, the petitioner rushes to this
Court in the subject petition challenging the e-auction notification.
This Court, in terms of its order dated 31-08-2023 permitted
auction proceedings to carry on, but not lift the auctioned
material/ore without the leave of the Court. The interim order is in
subsistence even as on date.
6. Heard Sri K.B. Shivakumar, learned counsel appearing for
the petitioner, Sri George Joseph, learned counsel appearing for
respondent No.1 and Sri Spoorthy Hegde, learned High Court
Government Pleader appearing for respondent No.3.
7. The learned counsel appearing for the petitioner submits
that the petitioner could not lift the iron ore in time and had sought
extension of time which was solely on the ground that COVID-19
pandemic engulfed the Globe and transportation was not possible.
He would further contend that there is no breach of contract and
the Company could not have forfeited even the EMD, as the tender
conditions strictly stipulate that in the event of breach of contract,
EMD can be forfeited. Since there is no breach of contract
committed by the petitioner, the Company could not have forfeited
EMD. The other submission is that the 1st respondent/Company did
not have power to issue impugned e-auction notification dated
21-08-2023.
8. Per-contra, the learned counsel representing the Company
would vehemently refute the submissions to contend that the
petitioner does not lift iron ore in time, does not make payments,
the Company waited for five years for the petitioner to lift the ore
and the petitioner does not even participate in the e-auction
pursuant to the notification so issued. It was always open to it to
participate in the e-auction, but chose to challenge it on a very
bleak ground that its representation is not considered. The learned
counsel would submit that the 2nd respondent who has emerged as
a successful bidder has purchased 3000 MTs of ore and still there is
stock. The petitioner who could not lift the stock or participate in
the e-auction cannot be heard to say that the stock is to be
reserved to it, to lift it at its will, when it has breached the terms of
the contract. The interim order is causing prejudice to the
successful bidder who is even unable to lift 3000 MTs in terms of his
bid. Insofar as the submission that the 1st respondent do not have
the authority to issue the notification is concerned, the learned
counsel would submit that Government/Competent Authority on
27-06-2023 had in fact permitted/directed the Company to dispose
of the available iron ore through MSTC e-portal which would mean
that the Company was permitted to dispose of iron ore through e-
portal i.e., by issuance of e-auction notification.
9. The learned High Court Government Pleader appearing for
the 3rd respondent would toe the lines of the learned counsel
representing the 1st respondent. The 2nd respondent is served and
is unrepresented.
10. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
11. The afore-narrated facts are not in dispute. It is only
jugglery of dates and extensions which are required to be noticed
qua clauses in the tender. The Company on 11-01-2016 issues an
e-auction Notification for sale of minerals through e-procurement
platform. The petitioner emerges as the successful bidder insofar as
mineral 'Titaniferous Magnetite' is concerned, which was also a
subject matter of tender, inter alia. Insofar as Titaniferous
Magnetite is concerned, e-auction notification read as follows:
"Titaniferous Magnetite
Material will be delivered on staggered basis and material will
be made available in specified period.
e-Auction on 05-02-2016
Lot No. Quantity EMD Initial Timing of
in Mts. (Rs.) Price in e-auction
Rs./Mt. Open Close
Titaniferous 29,000 2,50,000 842/- 15.00 15.30
Magnetite hrs. hrs."
Lot No.1
The quantity depicted was 29000 MTs., EMD was `2,50,000/-, and
the price per MT was `842/-. The petitioner emerges as the highest
bidder insofar as aforementioned mineral is concerned. A letter of
intent was issued to the petitioner to make certain payments. The
letter of intent is with absolute clarity. Therefore, it is extracted for
the purpose of ready reference. It reads as follows:
"No.MML/MKT/Titaniferous Magnetite/879/2015-16/3689
11-02-2016
LETTER OF INTENT
Sub: Supply of Titaniferous Magnetite from Thagadur
Chromite Mine to Ismail K.M. Proprietor of M/s. Noor
Enterprises.
Ref: 1. e-Auction Notification dated 11-01-2016.
2. Ismail K.M. Proprietor of M/s. Noor Enterprises,
e-auction documents Submitted on 25-01-2016
3. e-Auction bid dated 05-02-2016.
****
We are confirming about supply of Titaniferous
Magnetite from Thagadur Chromite Mine as under:
1. Material Titaniferous Magnetite --
2. Quantity 29000 MTS of Titaniferous Supply will be on Ex-Mine and
Magnetite (Lot No.01) on as is where is basis
3. Material basic Titaniferous Magnetite - Excluding Royalty, loading and
Price Rs. 862/- (Eight hundred other applicable taxes.
sixty two only) PMT
4. Total amount Rs.2,49,98,000/- (Rupees DD/RTGS payment
payable two crore forty-nine lakhs
towards ninety-eight thousand
material value only)
5. Last date for Each month amount Rs..62,49,500/-)
22.02.2016(Rs
payment of payable for 7250 MTS Rs..62,49,500/-)
22.03.2016(Rs
total amount i.e., 62,49,500/- (EMD 22.04.2016(Rs.62,49,500/-)
in four amount of Rs 22.05.2016(Rs.59,99,500/-)
installments 2,50,000/- will be Total 2,49,98,000/-
adjusted in last
consignment)
6. Royalty As per the IBM price Amount to be paid separately
index on Advalorem basis to the Mine Manager, Thagadur
Chromite Mine.
7. Tax & any K Vat @ 5.5% -"-
other cess
8. Loading Loading and
charges Transportation
arrangement shall be
made by the purchaser.
9. Other The Buyer shall lift and transport the allotted Quantity
Conditions within 30.06.2016 from the date of issue of sale/Delivery
order.
10 Payment terms Bidder shall confirm the acceptance of LOI by depositing
the amount in full for one month quantity for the above said
quantity (Cost of the mineral) inclusive of applicable levies
to MML with in above dates mentioned on working days
from date of issue LOI, if bidder fails to make the payment
within the above specified dates EMD will be forfeited.
Other terms and conditions mentioned in the tender
document are also included in this LOI.
Sd/-
General Manager (MKT)."
(Emphasis added)
The total payment to be made was `2,49,98,000/-. Four
installments were depicted for making payment on four dates as
found in the letter of intent. The dates were with a gap of one
month each. The condition was, the buyer shall lift and transport
the allotted quantity within 30-06-2016 from the date of issue of
sale or delivery order. The delivery order was issued for 500 MTs
immediately on 22-03-2016 on the petitioner making payment. The
amount received is also found in the delivery order which clause
reads as follows:
".... .... ....
7. Amount Received Rs.62,49,500/- through
received RTGS (Indian Bank) on 22-02-16 as
Towards first installment for 7250 MTs
material value, quantity (UTR#UTIBR520160222
(Basic price, 000503). Out of this DO is issued
DMF & NMET) for 500 MTs amounting to
(4+5+6)=(822. 500*862=4,31,000 (As per
52+37.01+2.4 customer request). For the balance
7=862) quantity of 6,750 MTs, DO will be
issued upon request from
customer.
12. The mining lease which was held by the Company,
pursuant to which e-action notification was issued, came to be
cancelled by the Government. The order of cancellation reads as
follows:
"GOVERNMENT ORDER NO.CI 80 CMC 2016
Bangalore, dated 19-04-2017
M/s. Mysore Minerals Limited is hereby directed to
deposit the auctioned amount realized from the sale of
Titaniferrous Magnetite Mineral which has been extracted
from the mining lease area held by M/s. Mysore Minerals
Limited bearing mining lease No.2477 along with the price of
the mineral, rent, royalty and other taxes applicable as per
law.
Director, Department of Mines and Geology is hereby
directed to issue Mineral Dispatch Permit to transport the
Titaniferrous Magnetite ore auctioned from the mining lease
area held by M/s. Mysore Minerals Limited bearing mining
lease No.2477.
Mining lease bearing ML No.2477 granted to M/s
Mysore Minerals Limited stands cancelled with immediate
effect and remaining minerals extracted which is lying in the
mining site shall also be forfeited by the Director,
Department of Mines and Geology and report to the
Government."
The Company was directed to deposit the auction amount realized
from the sale of mineral and the Department of Mines and Geology
was further directed to issue mineral dispatch permit in respect of
ore auctioned from the mining lease area and the extracted ore
which is lying in the mining site shall be forfeited by the
Department.
13. What is discernible from the aforesaid order would be that
mineral dispatch permit was directed to be issued for Titaniferous
Magnetite ore auctioned. Therefore, the contract of the petitioner
to lift the ore continued. On 19-03-2018 a communication comes
from the Company to the petitioner directing deposit of the
installments and lifting of ore. The communication reads as
follows:
"ಕ ಾ ಟಕ ೇ ನರ ಾ ೕ ೇಷ ೆ
( ಂ ನ: ೖಸೂರು ನರ ! ೆ )
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)ೆಂಗಳ:ರು-560027, ದೂರ;ಾ<: 080-22278813/14/15
ಸಂ=ೆ>: ೆ.ಎ@ ಎಂ(ಎ /Bಾ ಾಟ/&ಎCಎಂ-ತ ೊFೕಗ/2017-18 19 -03-2018
GFೕ ಇ ಾIJ ೆ.ಎಂ.
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ಸಂಡೂರು, ಬOಾP" #Qೆ*.
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ಅ ರನುZ ರ;ಾ ೆ Bಾ0 ೊಳ[Pವ ಬ\ೆ].
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19.04.2018.
2) ತಮI ಕ$ೇ" ಪತF ಸಂ=ೆ>. ಗಭೂಇ/ಗಗೂ±À/ಗಗೂ 2477/2017-18/
5832 ¢£ÁAPÀ: 14-02-2018.
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ಪFvಾನ ವ>ವ ಾTಪಕರು (Bಾ ಾಟ)."
The petitioner does not act. Four months later, again a
communication is made on 31-07-2018 informing the petitioner to
deposit the 2nd installment for lifting ore. The Communication reads
as follows:
"¸ÀASÉå PÉJ¸ïJA¹J¯ï/ªÀiÁgÁl/358/nJ¥sïJA-vÀPÉÆæÃUÀ/2018-19/1282 31/07/2018
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Bಾ>ಗZ ೈ ಅ ರನುZ Wಗ ತ ಸಮಯದ * ಾ\ಾಟ Bಾ0 ೊಳP ರುವ ಬ\ೆ].
ಉQೆ*ೕಖ: ನªÀÄä ಕxೇ" ಪತFದ ಸಂ=ೆ>: 2840, ಾಂಕ:20/03/2018.
*****
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Bಾ0 ೊಳPಲು ಕFಮ ೈ\ೊಳ[Pವiದು. ಖ"ೕ ( ಉnದ 2 ೇ ಕಂ6ನ ಅ ರನುZ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು
ಹಣವನುZ Mಾವ6ಸಲು ಸಹ ಕೂಡQೇ ಕFಮ ೈ\ೊಳ[Pವಂfೆ ಈ ಮೂಲಕ ಸೂtಸQಾu`ೆ.
ಕ ಾ ಟಕ ೆ ೕ ನರ ! ಾ ೇಶ ಪರ;ಾu,
ಪFvಾನ ವ>ವ ಾTಪಕರು [Bಾ ಾಟ]"
Again, after about a year, a communication is issued on
29-05-2019 to immediately pay and lift the ore. The communication
reads as follows:
"ಇವ"\ೆ,
//ನೂL ಎಂಟLMೆwಸ@,
;ಾ ಸಂ=ೆ> 13, ಜನfಾ ಾQೋW,
ಸಂಡೂರು - 583119
ಬOಾP" #Qೆ* .
Bಾನ> ೆ,
Rಷಯ:- ಾಂಕ:05.02.2016 ರಂದು ನgೆದ ಹ ಾ#ನ * ಖ"ೕ (ರುವ 29000=00
.ಟ ೈ ಾWXೆರ@ Bಾ>ಗZ ೈ ಅ "ನ ಎರಡ ೆಯ ಕಂ6\ೆ ಹಣ
Mಾವ6(, ಅ ರನುZ ಾ\ಾ< ೆ Bಾ0 ೊಳ[Pವ ಬ\ೆ].
ಉQೆ*ೕಖ:- 1) WಮI ಪತFದ ಾಂಕ: 12.04.2019
2) ೆ.ಎ@.ಎಂ.(.ಎ . ಪತFದ ಸಂ=ೆ> 2840, .20.03.2018
Rಷಯ ೆd ಸಂಬಂe(ದಂfೆ, ಸಂ ೆTಯು ಾಂಕ.05.02.2016 ರಂದು ನgೆ(ದ ಇ-ಹ ಾ#ನ *
hಾಗವ (, ತಗಡೂರು ೊFೕ ೖ ಗ<Jಂದ ಒಟು 29000=00 . ಟ ೈ ಾWಫರ@ Bಾ>ಗZ ೈ
ಅ ರನುZ ಖ"ೕ (ದುj, ಅದರ * kದಲ ೆಯ ಕಂತು 7250 .ಟ ಅ "\ೆ ಹಣ Mಾವ6(ದುj, ಪFvಾನ
ಕxೇ" ಪತF ಸಂ=ೆ>. 2940 ಾಂಕ 20.03.2018 ರ * WಯBಾನು ಾರ )ಾ| ಇರುವ ಮೂರು ಕಂತುಗಳ *
ಎರಡ ೆ ಕಂ6ನ kತ4ವನುZ ಕFಮ;ಾu ಾಂಕ.05.04.2018ರ ಒಳ\ಾu ಮೂರ ೆ ಕಂ6ನ kತ4ವನುZ
ಾಂಕ.05.05.2018ರ ಒಳ\ಾu 2ಾಗೂ ಾಲd ೆಯ ಅಂ6ಮ ಕಂ6ನ kತ4ವನುZ ಾಂಕ.05.06.2018ರ
ಒಳ\ಾu ಸಂ ೆT\ೆ Mಾವ6( ಅದರನುZ ಾ\ಾಟ Bಾ0 ೊಳ[Pವಂfೆ ಸೂtಸQಾuತು4. ಆದ ೆ Wೕವi ಇದುವ ೆಗೂ
kದಲ ೆ ಕಂ6ನ ಅ ರನುZ ಪz6 {ಾu ಾ\ಾ< ೆ Bಾ0 ೊಳP`ೆ Rಳಂಬ Bಾ0ರು64ೕ" 2ಾಗೂ ಎರಡ ೆ
ಕಂ6ನ kತ4ವನುZ ಸಹ Mಾವ6(ರುವi ಲ*. ಸಂ ೆTಯ ಪತFದ ಸಂ=ೆ>.349 ಾಂಕ:20.05.2019 ರ *
ಸೂt(ರುವಂfೆ kದಲ ೆ ಕಂ6ನ )ಾ| ಇರುವ ಅ ರನುZ ಾಂಕ 20.06.2019ರ ಒಳ\ಾu ಾ\ಾ< ೆ
Bಾ0 ೊಳPಲು ಕFಮವ ಸುವiದು.
ಎರಡ ೆ ಕಂ6ನ kತ4 ರೂ 62,49,500=00 ಗಳನುZ ಾಂಕ.20.06.2019 ಒಳ\ಾu ªÀÄÆgÀ£É
ಕಂ6ನ kತ4 ರೂ 62,49,500=00 ಗಳನುZ ಾಂಕ.19.07.2019ರ ಒಳ\ಾu 2ಾಗೂ ಾಲd ೆಯ ಮತು4
CAwªÀÄ ಕಂ6ನ kತ4 ರೂ 62,49,500=00 ಗಳನುZ ಾಂಕ.18.08.2019ರ ಒಳ\ಾu
ೆ.ಎ@.ಎಂ.(.ಎ .ನ PÉ£ÀgÁ ¨ÁåAPï, mË£ïºÁ¯ï ±ÁSÉ ¸ÀASÉå. 0413261027015, IFSC Code
No.CNRB 0000413, =ಾfೆ\ೆ Mಾವ6( ಾಜಧನ 2ಾಗೂ ಇತ ೆ fೆ"\ೆಗಳನುZ ವ>ವ ಾTಪಕರು,
ತಗಡೂರು ೊFೕಮ> ಗ< ರವರ ಮೂಲಕ ಗ< ಮತು4 ಭೂ Rpಾನ ಇQಾ=ೆಯವ"\ೆ Mಾವ6( )ಾ| ಇರುವ
21750 .ಟ ೈ ಾWಫರ@ Bಾ>ಗZ ೈ ಅ ರನುZ Wಗeತ ಅವe†ಳ\ೆ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು
ಕFಮವ ಸುವಂfೆ ಈ ಮೂಲಕ ಸೂt(`ೆ.
¸À»/-
ಪFvಾನ ವ>ವ ಾTಪಕರು(Bಾ) ಪFhಾರ"
During subsistence of these communications and actions, the nation
is struck by COVID-19 pandemic. Due to complete lockdown, no
communication happened between the parties. On 12-04-2021 a
communication is issued to the petitioner that due to COVID-19 the
Company had relaxed the payment conditions and the petitioner
was to pay the second installment in 10 days and the remaining
installments within two months. The Company then addresses a
letter to the Department of Mines and Geology informing that the
petitioner has paid the 2nd installment for lifting 7250 MTs and
requests the Department to issue direction to the concerned for
issue of mineral dispatch permit. The communication dated
31-07-2021 reads as follows:
"¸ÀASÉå: UÀ¨sÀÆE/UÀUÀÄ-2477/2021-22 W`ೇ ಶಕರ ಕxೇ"
E- 28871 ಗ< ಮತು4 ಭೂ Rpಾನ ಇQಾ=ೆ
ಖ6ಜ ಭವನ, ೇ@ ೋ@ ರ ೆ4
¨ÉAUÀ¼ÀÆgÀÄ-1, ¢£ÁAPÀ: 31-07-2021.
Rಷಯ: ರ`ಾjದ ಗ<ಗು64\ೆ ಸಂ=ೆ> 2477ರ ಗು64\ೆ ಪF`ೇಶದ * ೈ ಾWಫರ@ Bಾ\ೆZ ೈ
ಅ ರನುZ ಇ-ಹ ಾ#ನ ಮೂಲಕ RQೇ Bಾ0ರುವ ಅ "\ೆ ಪರ;ಾW\ೆ Wೕಡುವ ಬ\ೆ].
G¯ÉèÃR: 1. ಕ ಾ ಟಕ ೇ ೆರ¯ïì ಾ ೕ ೇಷ ., ರವರ ಪತF ಾಂಕ
07.04.2016.
2. ಈ ಕxೇ" ಪತF ಸಂ=ೆ>: ಗಭೂಇ/ಗಗು5ಾ/ಗಗು-2477/2016-17 ಾಂಕ
19.04.2017
3.ಸ ಾ ರದ ನgಾವn ಸಂ=ೆ>: (ಐ 80 (ಎಂ( 2016 )ೆಂಗಳ:ರು ಾಂಕ
19.04.2017.
4. ಕ ಾ ಟಕ ೇ ನರ ಾ ೕ ೇಷ ., ರವರ ಪತF ಾಂಕ
09.10.2019.
5. ಈ ಕxೇ"ಯ ಸಮಸಂ=ೆ> ಪತF ಾಂಕ: 23.07.2020.
6 ಕ ಾ ಟಕ ೇ ನರ¯ïì ಾ ೕ ೇಷ ., ರವರ ಪತF ಾಂಕ:
05.07.2021.
********
ಉQೆ*ೕಖ 3ರ ಸ ಾ ರದ ಆ`ೇಶದಂfೆ . ಕ ಾ ಟಕ ೆ ೕ ನರ¯ïì ಾ ೕ ೇಷ .,
ಸಂ ೆTಯು 7250 &F+ ಟ ೈ ಾWXೆರ@ Bಾ>\ೆZ ೈ ಅ "ನ Bೌಲ> ರೂ. 57,67,520/- (ರೂMಾJ
ಐವfೆ4ೕಳ[ ಲŠದ ಅರವfೆ4ೕಳ[ ಾRರದ ಐದು ನೂರ ಇಪ‹ತು4ಗಳ[ BಾತF)ಗಳನುZ 0.0.ಸಂ=ೆ>. 817067
ಾಂಕ 01.07.2021ರ ಮೂಲಕ ಇQಾ=ೆ\ೆ Mಾವ6( ಪರ;ಾನuಗn\ಾu Rನಂ6(ರುತ4`ೆ.
F »AzÉ ¢£ÁAPÀ 06.09.2018, 09.04.2018 ªÀÄvÀÄÛ 23.07.2020gÀ ¥ÀvÀæUÀ¼À°è 6nಸQಾದ
ಅಂಶಗಳನುZ ಗಮನದ *"( ೊಂಡು, Mಾ ಸುವ ಷರ64\ೊಳಪಟು 7250 &F+ ಟ
ೈ ಾWXೆರ@ Bಾ>ಗ ೈ ಅ "\ೆ ಾಜಧನ 2ಾಗೂ ಅನŒJಸುವ ಇತರ fೆ"\ೆಗಳನುZ . ಕ ಾ ಟಕ
ೇ ನರ¯ïì ಾ ೕ ೇಷ ., ಸಂ ೆTJಂದ Mಾವ6( ೊಂಡು ಪರ;ಾನuಗಳನುZ •ಾ" Bಾಡಲು
ಕFಮವ ಸುವiದು.
ಇವ"\ೆ, ¸À»/-
»jAiÀÄ ¨sÀÆ«eÁÕ¤ 4.08.2021
UÀt ªÀÄvÀÄÛ ¨sÀÆ«eÁÕ£À E¯ÁSÉ, DIRECTOR
ºÁ¸À£À f¯Éè. DEPT. OF MINES & GEOLOGY
¥ÀæwAiÀÄ£ÀÄß: M/s KSMCL, BMTC Shantinagar, TTMC Building 'A' Block,
5th Floor, Shanthinagar Bangalore - 560 027 gÀªÀgÀ ªÀiÁ»wUÁV."
The petitioner does not lift the ore for close to one year and then
addresses a letter on 27-11-2021 requesting additional time. The
Communication reads as follows:
"UÉ, 27.11.21
ವ>ವ ಾTಪಕ W`ೇ ಶಕರು,
ಕ ಾ ಟಕ ¸ÉÖà ನರ ಾ ೕ ೇಷ ೆ
ೊFೕ ೖ ಗ<, ತಗಡೂರು.
Bಾನ> ೇ,
Rಷಯ: ೈ ಾWಫರ@ Bಾ>\ೆZ ೈ ಅ ರನುZ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು
ಅ ಾನುಕೂಲ ಆಗು64ರುವ ಬ\ೆ].
--------
ೕಲdಂಡ Rಷಯ ೆd ಸಂಬಂe(ದಂfೆ, ತಗಡೂರು ೊFೕ ೖ ಗ<Jಂದ ಾಂಕ
05/02/2016 ರಂದು ನgೆದ ಈ ಹ ಾ#ನ * hಾಗವ ( 29,000 M.T. TFM ಅ ರನುZ ಖ"ೕ (ದುj ಇದರ
Mೈ| kದಲ ೇ ಕಂ6ನ 7250 M.T ನುZ ಾ\ಾ< ೆ Bಾ0 ೊಂ0ರುfೆ4ೕ;ೆ. ಎರಡ ೇ ಕಂ6ನ 7250 MT
ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು ತಮI ೇಂದF ಕxೇ"Jಂದ ಾಂಕ 09/11/2021 jAzÀ ಅನŒJಸುವಂfೆ
ಒಂದು 6ಂಗಳ ಾQಾವe Wೕ0 ಪತF Wೕ0ರುfಾ4 ೆ. ಆ ಪತFವನುZ ಾ;ೆ ತಮI ಕxೇ", ತಗಡೂರು
ೊFೕ ೖ ಗ<, ತಗಡೂ"\ೆ ಾಂಕ 10-11-2021 ರಂದು ತ Ž(ರುfೆ4ೕ;ೆ. 11-11-2021 "ಂದ TFM
ಅ ರನುZ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು Wರಂತರ ಮOೆ ಇರುವiದ"ಂದ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು C£Á£ÀÄPÀÆ®
EgÀĪÀÅzÀjAzÀ £ÁªÀÅUÀ¼ÀÄ ¢£ÁAPÀ 11-11-21 jAzÀ 14-11-2021 gÀ ತನಕ %ಡುವi Bಾ0 ೊಂಡು ಮfೆ4
ಾಂಕ 15-11-2021 ರಂದು ಗ<\ೆ ಬಂದು ಾ\ಾ< ೆ MಾFರಂಭ Bಾಡಲು ೖ !\ೆ JCB 2ಾಗೂ
Qಾ"ಗಳ ಸ ೕತ ಬಂ`ೆವi. ಆದ ೆ ತಮI ಗ< ಕxೇ"ಯ * ತೂಕ Bಾಡುವ Monitor problem
ಆuದುj, Rದು>• ೊರfೆಯು ಆuರುತ4`ೆ. ಾಂಕ 16-11-2021 ರಂದು ಾವiಗಳ[ UPS 2ಾಗೂ
Monitor ವ>ವ ೆT Bಾ0 ೊಂಡು Bಾರ ೇ ನ ಅಂದ ೆ 17-11-2021 ರಂದು ಅ ರನುZ Qಾ"\ೆ
ಾ\ಾ< ೆ Bಾಡಲು MಾFರಂ•(ರುfೆ4ೕ;ೆ. Wರಂತರ ಮOೆಯ D¨sÀðl, weigh bridge problem,
tower problem, permit generate ªÀiÁqÀ®Ä computer problem, network
problemUÀ¼ÀÄ DVgÀÄvÀÛªÉ. ¢£ÁAPÀ 10-11-21 jAzÀ 26/11/21 gÀªÀgÉUÉ ಆದ ಸಮ ೆ>ಗಳ ಬ\ೆ]
ತಗಡೂರು ೊFೕ ೖ ಗ< ವ>ವ ಾTಪಕ"\ೆ ಪತFವನುZ ೊ&ರುfೆ4ೕ;ೆ. ಆದj"ಂದ 8 ನ ಕOೆದು ಈಗ
ಾ\ಾ< ೆ Bಾಡಲು ಬಂ ರುfೆ4ೕ;ೆ. ನಮ\ೆ ಅ ರು ಾ\ಾ< ೆ\ೆ ವ>ವ ೆT Bಾ0 ೊಡ)ೇ ೆಂದು
ೇn ೊಳ[Pfೆ4ೕ;ೆ.
For NOOR ENTERPRISES,
Sd/-
Proprietor."
Correspondences go on between the two from 27-11-2021 to
24-01-2022 and time was granted to the petitioner pursuant to
various letters seeking extension of time. On 11-02-2022 when the
time came for the petitioner to deposit the third installment, it
made a representation pleading that it is unable to pay 3rd and 4th
installments and seeks further time. The communication reads as
follows:
"UÉ,
ವ>ವ ಾTಪಕ W`ೇ ಶಕರು,
ಎ@.ಎ'( ೆ ,
5ಾಂ6ನಗರ, )ೆಂಗಳ:ರು.
ªÀiÁ£ÀågÉ,
«µÀAiÀÄ: TFM ಅ "\ೆ ಹಣವನುZ Mಾವ6( ೊಂಡು ಅ ರನುZ ಾ\ಾ< ೆ
Bಾ0 ೊಳ[Pವ ಬ\ೆ] ಮನR.
------
ೕಲdಂಡ Rಷಯ ೆd ಸಂಬಂe(ದಂfೆ ತಮI ಸಂ ೆTಯು ತಗಡೂರು ೊFೕ ೖ ಗ<Jಂದ
ಾಂಕ 05/02/2016 ರಂದು ನgೆದ ಈ ಹ ಾ#ನ * hಾಗವ (ದ ಾವi ಒಟು 29,000 .ಟ
ೈ ಾWಫರ@ BಾಗZ ೈ ಅ ರನುZ ಪgೆದು ಯಶ(Œ %ಡು'`ಾರ ಾuರುfೆ4ೕ;ೆ. 29,000 .ಟ Mೈ|
kದಲ ಕಂ6ನ 7250 MTನುZ 2ಾಗೂ ಎರಡ ೇ ಕಂ6ನ 7250 MTನುZ ಅ ರನುZ (TFM ಅ ರು)
ಸಂಪzಣ ;ಾu ಾ\ಾ< ೆ Bಾ0 ೊಂ0ರುfೆ4ೕ;ೆ. ಉnದ ಅಂದ ೆ ಮೂರು ಮತು4 ಾಲd ೆ ಕಂ6ನ ಸBಾನ
kತ4 62,49,500- ರೂ. ಗಳನುZ Mಾವ6ಸಲು fಾವiಗಳ[ ನಮ\ೆ 12-04-2021 ರಂದು Wೕ0ದ ಪತFದ *
6n(ರು64ೕ". ಆ ಪತFದ ಅನು ಾರ ಎರಡ ೇ ಕಂ6ನ 62,49,500- ರೂ. ಗಳನುZ Mಾವ6(ದ ನಂತರದ
ಎರಡು 6ಂಗOೆ: ಳ\ಾu ಮೂರು ಮತು4 ಾಲd ೆ ಸBಾನ kತ4;ಾದ 62,49,500- ರೂ. ಗಳನುZ Mಾವ6ಸಲು
ಸೂt(ರು64ೕ". ಅದರಂfೆ ನಮ\ೆ ತಮI ಸಂ ೆT\ೆ ಹಣ Mಾವ6ಸಲು ಾಧ>;ಾuರುವi ಲ*.
ಾರಣ ಎರಡ ೇ ಕಂ6ನ ಹಣ Mಾವ6ಸಲು ಎರಡು ಮೂರು ನ ಮುನZ;ೆ ೋR -19 ಎರಡ ೇ
ಅQೆಯ Qಾ+gೌ "ೂೕಷ"ೆ{ಾuರುತ4`ೆ. ಆದರೂ ಎರಡ ೇ ಕಂ6ನ 62,49,500- ರೂ. ಗಳನುZ ಾಂಕ
30-04-2021 ರಂದು ತಮI ಸಂ ೆT\ೆ Mಾವ6(ರುfೆ4ೕ;ೆ. ಎರಡ ೇ ಕಂ6ನ ಅ ರನುZ ಾuಸಲು ತಮI
ಸಂ ೆTಯು ಾಂಕ 05-07-2021 ರಂದು letter ನುZ Wೕ0ತು. ತದನಂತರ ಗ< ಮತು4 ಭೂRpಾನ
ಇQಾ=ೆJಂದ ಪ ಗಳನುZ ಪgೆಯಲು ಎರಡು 6ಂಗಳ[ಗಳ Rಳಂಬ;ಾJತು. ಾರಣ ೋR -19
ಎರಡ ೇ ಅQೆಯ Qಾ+gೌ ಇದುjದ"ಂದ ಇ•ೆ Qಾ* ಾರಣಗnಂದ fಾವi ಸೂt(ದ ಅವe†ಳ\ೆ ಮೂರು
2ಾಗೂ ಾಲd ೆ ಕಂ6ನ ಸBಾನ kತ4;ಾದ 62,49,500- ರೂ. ಗಳನುZ Mಾವ6ಸಲು ಆuರುವi ಲ*.
ಈಗ ಾವiಗಳ[ ಎರಡ ೇ ಕಂ6ನ 7250 .ಟ TFM ಅ ರನುZ ಸಂಪzಣ ಾ\ಾ< ೆ
Bಾ0ರುfೆ4ೕ;ೆ. ೋR -19 kದQೆ ಆQೆಯು 2ಾಗೂ ೋR -19 ಎರಡ ೇ ಅQೆಯ ನಡು;ೆ ನಮI
ಸಂ ೆTಯು ಆ˜ ಕ;ಾu ಬಹಳ ಜಜ "ತ;ಾuರುತ4`ೆ. Bಾರುಕ ೆ ಯ * ಅ "ನ ದರಗಳ[ ಏರುMೇರು
ಆಗು64ರುವiದ"ಂದ R5ೇಷ;ಾu ಈ TFM ಅ ರನುZ ಖ"ೕ ಸುವವರು Bಾರುಕ ೆ ಯ * ಬಹಳ
RರಳRರುವiದ"ಂದ )ೇಗ ೆ ಾ\ಾ< ೆ Bಾ0 ಹಣ Mಾವ6ಸಲು ಾಧ>;ಾuರುವi ಲ*.
ಈಗ ನಮ\ೆ ಮೂರು ಮತು4 ಾಲd ೆ ಕಂ6ನ ಸBಾನ kತ4;ಾದ 62,49,500- ರೂ. ಗಳನುZ
Mಾವ6( ೊಂಡು ೈ ಾWಫರ@ BಾಗZ ೈ ಅ ರನುZ ಾ\ಾ< ೆ Bಾ0 ೊಳPಲು ಅವ ಾಶ
Bಾ0 ೊಡ)ೇ ೆಂದು ಈ ಪತFದ ಮು=ಾಂತರ ತಮI * Rನಂ6( ೊಳ[Pfೆ4ೕ;ೆ."
This comes to be rejected by the Company on the ground that
several opportunities had already been granted. The
Communication dated 20-05-2022 reads as follows:
"ಇವ"\ೆ,
|| ನೂL ಎಂಟL Mೆw ೆ@.
;ಾ ಸಂ=ೆ> - 13, ಜನfಾ ಾQೋW,
ಸಂಡೂರು - 583119
ಬOಾP" #Qೆ*.
Bಾನ> ೇ,
Rಷಯ:- ಇ-ಹ ಾ#ನ ಮೂಲಕ ಖ"ೕ (ದj &ಎCಎಂ ಅ "ನ )ಾ|
ಪFBಾಣದ ಹಣ Mಾವ6\ೆ ಅನುಮ6 ೋ"ರುವ ಬ\ೆ].
ಉQೆ*ೕಖ:- 1. ೆಎ@ಎಂ(ಎ ನ ಇ-ಹ ಾಜು ಅeಸೂಚ ೆ ಸಂ=ೆ> : 3357 :
11.01.2016.
2.ºÀt ¥ÁªÀwUÉ ¤ÃrgÀĪÀ J¯ï.F.L ¸ÀA- 3689 :
12.01.2016.
3. ಅ ರು ಾ\ಾ< ೆ MಾFರಂ•ಸಲು 6n(ರುವ ಪತF ಸಂ- 846 :
28.06.2017.
4. )ಾ| kತ4 Mಾವ6ಸಲು ಈ ಕxೇ"Jಂದ Wೕ0ರುವ ಪತF ಸಂ-
2840 : 20.03.2018, 461 : 29.05.2019 ªÀÄvÀÄÛ 109 :
12.04.2021
5. vÀªÀÄä ¥ÀvÀæ ¢£ÁAPÀ: 11.02.2022.
******
ೕ ನ Rಷಯ ೆd ಸಂಬಂe(ದಂfೆ, ತಮI ಉQೆ*ೕಖ (05) ರ ಮನR ಪತFವನುZ
¥Àj²Ã°¸À¯ÁV, ಸಂ ೆTಯು ಜನವ"- 2016 ರ * ನgೆ(ದ ಇ-ಹ ಾ#ನ * fಾವi 29000 .ಟ
ೈ ಾWXೆರ@ Bಾ>ಗZ ೈ ಅ ರನುZ ಪF6 ಟWZ\ೆ ರೂ. 862/- ದರದ * ಖ"ೕ (ದುj, ತಮI
ೋ" ೆಯಂfೆ 4 ಕಂತುಗಳ * ಹಣ Mಾವ6ಸಲು ಉQೆ*ೕಖ (01) ರ ಅನŒಯ ಸೂtಸQಾuತು4. 7250
.ಟ UÀ¼À ªÀiË®åzÀ ªÉÆzÀ®£Éà PÀAw£À ªÉÆvÀÛ gÀÆ. 62.49,500/- UÀ¼À£ÀÄß ¢ : 22.06.2016
ರ * Mಾವ6(ದ ನಂತರ ತಗಡೂರು ಗ< ಗು64\ೆ ಮಂಜೂ ಾ6ಯ * ಇದj ೆಲವi fಾಂ6Fಕ
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ಾಂಕ:19.04.2017 ರಂfೆ ಈ\ಾಗQೇ ಹ ಾ•ಾuರುವ ಅ "\ೆ ಹಣ Mಾವ6( ೊಂಡು ಅ ರು
ಾ\ಾ< ೆ\ೆ ಅವ ಾಶ Bಾ0 ೊಡQಾuತು4.
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ಅ ರು ಾ\ಾ< ೆ\ೆ Rಳಂಬ;ಾuರುವiದನುZ ಮತು4 ೋR -19 ಸಂಬಂಧ Bಾರುಕ ೆ ಯ *
ವ>ತ>ಯ ಆuರುವiದನುZ ಗಣ ೆ\ೆ fೆ\ೆದು ೊಂಡು ಸಂ ೆTಯು ಉQೆ*ೕಖ (04) ರಂfೆ Bಾ3 - 2018
ಏŽF - 2021 ರ ಅವeಯ * 3 )ಾ" ಪತFವನುZ Wೕ0 )ಾ| kತ4 Mಾವ6\ೆ ಾಲವ ಾಶವನುZ
Wೕ0ರುತ4`ೆ. ಆದ ೆ, Wೕವi ೇವಲ 2 ೇ ಕಂ6ನ kತ4ವನುZ BಾತF Mಾವ6( )ಾ| 2 ಕಂತುಗಳ
ಹಣವನುZ Wಗ ಪ0(ದ ಅವe†ಳ\ೆ Mಾವ6 Bಾಡುವ * Rಫಲ ಾuರು64ೕ". ಅಲ*`ೆ 2 ೇ
ಕಂ6ನ ಅ ರು 7250 .ಟ ನುZ ಕೂಡ ಸ ಾಲ ೆd ಾ\ಾ< ೆ Bಾಡ`ೇ 3 )ಾ" ಅವeಯನುZ
Rಸ4"( WೕಡQಾuರುತ4`ೆ.
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ಈ\ಾಗQೇ ಸುBಾರು 5 ವಷ ಗಳ ಾQಾವ ಾಶ Wೕ0ದುj, ಅ "ನ ದರಗಳ * ಏ" ೆ
ಆuರುವiದ"ಂದ ದರ ಪ"ಷdರ"ೆ\ೆ ಾರಣ, )ಾ| ಹಣ Mಾವ6ಸಲು ೋ"ರುವ WಮI ಮನRಯನುZ
ಪ"ಗ<ಸಲು ಾಧ>Rರುವi ಲ*."
Throughout these communications, the petitioner neither lifts the
ore nor makes payment in terms of the letter of intent. Noticing the
entire default on the part of the petitioner, an order comes to be
passed terminating the contract and forfeiting the EMT of
`2,50,000/-. The order reads as follows:
"No.KSMCL/Mkt/MIN/DFM/e-Auction/879/2022-23/1885
Date: 30-09-2022
To,
Mr. K.M.Ismail,
M/s. Noor Enterprises,
Ward No.13, Janatha Colony,
Sandur - 583 119,
Bellary District.
Sub: Termination/cancellation of the LOI/Sale
award/ Delivery order and forfeiture of Earnest Money
Deposit paid towards purchase of Titaniferrous
Magnetite Ore.
Ref:
1. E-auction notification bearing No.MML/MKT/e-Auction
/394/2015-16/3357 dated 11-01-2016.
2. Letter of intent bearing No.MML/MKT/Titanifeffour
Magnatite/879/2015-16/3689, dt.11-02-2016.
3. Letter of NOOR ENTERPRISEES dt. 21-03-2016 to GM,
MKT.
4. MML/MKT/Titaniferrous Magnatite/879/2015-16/01 Dt:
31-03-2016.
5. KSMCL/MKT/358/Titaniferous Magnatite-TDCM/2018-
19/2840 Dt. 20.03.2018
6. KSMCL/MKT/358/Titaniferous Magnatite-TDCM/2018-
19/1282 Dt. 31.07.2018
7. KSMCL/MKT/358/Titaniferous Magnatite-TDCM/2019-
20/349 Dt. 20-05-2019
8. KSMCL/MKT/358/Titaniferous Magnatite-TDCM/2019-
20/461 Dt. 29-05-2019
9. KSMCL/MKT/e-Auction/MIN/TFM/879/2021-22/109.
Dt. 12-04-2021
10. KSMCL/MKT/e-Auction/MIN/TFM/879/2021-22/2044.
Dt. 09-11-2021
11. KSMCL/MKT/e-Auction/MIN/TFM/879/2021-22/2665.
Dt. 31-12-2021
12. KSMCL/MKT/e-Auction/MIN/TFM/879/2021-22/2881.
Dt. 24-01-2021
13. KSMCL/MKT/e-Auction/MIN/TFM/879/2022-23/576.
Dt. 20-05-2022.
*****
With reference to the above subject, you had
participated in the e-Auction held on 05-02-2016 (ref.No.1)
and purchased 29000 Mts. of Titaniferrous Magnetite Ore
(hereinafter referred as Ore) from Thagadur Chromite Mines
of KSMCL (MML). The Company had issued LOI No.3689
dated 11-02-2016 (ref.No.2) and directed to make payment
of basic material cost in four equal installments i.e.,
Rs.62,49,500/- each month before May - 2016 and to lift
7250 Mts of Ore in Four equal installments.
1st installment of Rs.62,49,500/- for the purchase of
7250 Mts of ore was paid by you on 22-02-2016 and delivery
order dt. 22-03-2016 you were supposed to lift 500 Mts of
ore.
Vide letter dt. 21-03-2016 (Ref. No.3) you requested
to give extension of 15 days for payment of second
installment. Consequently, KSMCL vide letter bearing No.01
dated 31-03-2016 (Ref.No.4) extended time upto 10-04-
2016 to make payment of 2nd installment.
Vide letter dated 28-02-2018 you have requested to
give consent for making the remaining three payments.
Consequently KSMCL vide letter (Ref.5) bearing No.2840
dated 20-03-2018 you were informed to make payment for
remaining three installment for the purchase of ore within
05-04-2018, 05-05-2018 and 05-06-2018 respectively to
KSMCL along with statutory payments to DMG, Hassan and
Manager, Thagadur Chromite Mines and lift the material.
Vide letter dated 05-03-2018 you had requested to
extend period of one month for payment of 2nd installment,
KSMCL vide letter bearing No.1282 dated 31-07-2018
(Ref.No.6) requested to lift the remaining material of the 1st
installment and take steps to make payment to the 2nd
installment.
KSMCL, vide letter bearing No.349 dated: 20-05-2019
(Ref.No.7) gave permission to lift remaining 1955 Mts of ore
within 20-06-2019 and in case of failure to lift the said ore
within 20-06-2019 correspondence will be made to DMG,
Hassan requesting to stop permit and forfeit the payment
made.
KSMCL, vide letter bearing No.461 dated 29-05-2019
(Ref.No.8) requested you to make payment of 2nd, 3rd and 4th
installments of Rs.62,49,500/- within 20-06-2019, 19-07-
2019 and 18-08-2019 respectively to lift 21750 Mts of ore
within the said stipulated time.
Vide letter dated 20-06-2019 yourself requested to
extend 4 - 5 days for lifting 1955 Mts of ore and grant
extension period of one month to make payment of 2nd
installment.
Thereafter, vide letter dated 3-02-2021 you have
requested to make payment of the 2nd installment by stating
earlier payment cannot be made due COVID-19 and
unsuitable market conditions and thereby causing delay in
completing the said consignment within the said stipulated
time. Hence, KSMCL considering your request vide letter
dated 3-02-2021 issued letter dated 12-04-2021 bearing
No.109 (Ref.No.9) and has directed you to make payment
for the remaining 3 installments within stipulated time as
specified in the said letter. Thereafter, 2nd installment of
Rs.62,49,500/- was paid by you on 30-04-2021 and you
were required to lift 7250 Mts within 30 days after obtaining
a mineral dispatch permit from DMG as per delivery order
bearing No.658 dated 5-07-2021.
Vide letter bearing No.26-10-2021 yourself requested
to grant extension of 45 days to lift the 7250 Mts by stating
various reasons. KSMCL, vide letter bearing No.2044 dated
9-11-2021 (Ref.No.10) considered your request, with a pre-
condition that no further extension will be provided to lift the
said quantity of material and granted a 30 days extension to
lift 7250 Mts ore from 9-11-2021.
Vide letter 13-12-2021 and 14-12-2021 by stating
various reasons, you requested to extend the time limit for
lifting 5683.27 Mts. Consequently, KSMCL vide letter bearing
No.2665 dated 31-12-2021 (Ref. No.11) by considering your
said request has extended time period of 15 days upto 14-
01-2022 to lift balance quantity of 5683 Mts.
Vide letter dated 17-01-2022, by stating various
reasons, you requested to extend time limit of 30 days for
lifting 3669.450 Mts. Consequently, KSMCL vide letter
bearing No.2881 dated 24-01-2022 (Ref.No.12) by
considering your said request, has finally extended time
period of 15 days up to 19-02-2022 to lift balance quantity of
3669.180 Mts. Further it is stated that failure to lift the said
quantity within stipulated time, the un-lifted quantity and
amount will be forfeited.
Vide letter dated 11-02-2022 you requested to grant
consent permitting to make payment of 3rd and 4th
installment by stating various reasons. Consequently KSMCL
vide letter bearing No.576 dated 20-05-2022 (Ref. No.13)
rejected your request to make payment for the 3rd and 4th
installment was rejected as you failed to make the payment
within stipulated time.
You have lifted total quantity of 14500 Mts out of
29000 Mts.
From the perusal of Ref.No.1 and its terms and
conditions it can be construed as Time was made as the
essence of said contract. Time being the essence of this
contract of sale KSMCL issued aforesaid letters to you,
requesting to perform you part of obligation within specified
date in performance of the said contract of sale.
Since you have failed to make payment, failure to lift
and transport the entire material within the stipulated period
given by KSMCL, thereby you have committed breach of
clause 11 of the terms and conditions of e-Auction
notification vide Ref.No.1/LOI/Sale or delivery order.
Consequently, as per clause 13 of the said e-Auction
notification vide Ref.No.1,KSMCL hereby cancels letter of
intent dated 11-02-2016 (Ref.No.2) issued by KSMCL to you.
As per clause (8)(c) of the terms and conditions of e-
auction notification vide ref.No.1, you have committed
breach of contract and consequently, EMD amount of
Rs.2,50,000/- is forfeited.
Sd/-
30.09.2022
Managing Director."
The Department then communicates to the Company to issue e-
auction notification for the remaining ore. The communication
dated 27/28-06-2023 reads as follows:
"ಇವ"\ೆ,
ವ>ವ ಾTಪಕ W`ೇ ಶಕರು
: ಕ ಾ ಟಕ ೆ ೕ ನರ ! ಾ ೕ ೇಷ .*
)ೆಂಗಳ:ರು.
Bಾನ> ೇ,
Rಷಯ: ರ`ಾjದ ಗ<ಗು64\ೆ ಸಂ=ೆ> 2477ರ ಗು64\ೆ ಪF`ೇಶದ * ೈ ಾWXೆರ@ Bಾ>ಗZ ೈ
ಆಧರನುZ ಇ-ಹ ಾ#ನ ಮೂಲಕ RQೇ Bಾಡುವ ಅ "\ೆ ಪರ;ಾW\ೆ Wೕಡುವ ಬ\ೆ].
ಉQೆ*ೕಖ: 1. ಸ ಾ ರದ ನಡವn ¸ÀASÉå: ¹L 15 ¹JA¹ 2022 ¨ÉAUÀ¼ÀÆgÀÄ
¢£ÁAPÀ: 04.01.2023
2. ಕ ಾ ಟಕ ೆ‹ೕ ನರ ಾ ೕ ೇಷ . ರವರ ಪತF ಾಂಕ: 11
01.2023.
******
ಸ ಾ ರದ ಸhೆ ನಡವn ಾಂಕ: 14.06.2022 ರ *ನ 6ೕBಾ ನದಂfೆ M/s KSMCI
ಸಂ ೆTಯು 2ಾಸನ #Qೆ*ಯ ತಗಡೂರು \ಾFಮದ ;ಾ>Ž4ಯ * 2ೊಂ ರುವ ೊFೕ ೖ ಗ<ಯ * `ಾ ಾ4ನು
BಾಡQಾuರುವ ೊFೕ ೖ ಮತು4 ೈ ಾWXೆರ@ Bಾ>\ೆZ ೈ ಅ ರನುZ || MSTC ರವರ ಮೂಲಕ
MಾರದG ಕ;ಾu ಇ-ಹ ಾಜು ಪF|FœಯನŒಯ Bಾ ಾಟ Bಾಡಲು ಸದ" ಸhೆಯ * ಈ ೆಳಕಂಡಂfೆ
Wಣ JಸQಾuರುತ4`ೆ.
5. After detailed discussions, following decisions were
taken
5.1 To permit KSMCL to dispose off available stock of
Chromite and Titaniferrous Magnetite Ore through
transparent manner through MSTC e- portal.
5.2 To keep the sale proceeds in a separate account
5.3 To get legal opinion on reimbursement of
production cost of the Mineral that was incurred
by KSMCL of the sale proceeds.
ಸದ" ಹ ಾಜು ಪF|Fœಯು ಮು ಾ4ಯ\ೊಂಡ ನಂತರ ಯಶ(Œ{ಾuರುವ %ಡು'`ಾರ"\ೆ ಖWಜ
ರ;ಾ ೆ ಪರ;ಾW\ೆ Rತ"ಸಲು ಈ ಕxೇ"\ೆ ಸೂಕ4 ಪF ಾ4ವ ೆ ಸ *ಸಲು ೋ"`ೆ.
ತಮI R5ಾŒ(
Signed by Girish R
Date: 27-06-2023 16:33:25
W`ೇ ಶಕರು."
It is pursuant to the said communication the impugned e-auction
notification comes to be issued.
14. What would emerge from what is narrated hereinabove is
that the petitioner is in gross default of making payment or lifting of
ore. The petitioner throughout projects COVID-19 pandemic for all
that has happened in the case at hand. But, the letter of intent is of
the year 2016. The petitioner fails to lift ore between 2016 and
2019. It is not that the default has happened due to COVID but due
to the act of the petitioner. Even after giving sufficient opportunity,
the petitioner fails to avail of the same and seeks to turn around
and challenge the e-auction notification which the Company was
forced to issue pursuant to the direction of the Department. The
direction is quoted hereinabove. Therefore, it cannot be said that
the 1st respondent/Company does not have the power to issue the
said direction. It is pursuant to the direction of the Competent
Authority, the e-auction notification is issued. The 2nd respondent
emerges as the successful bidder and it is then the petitioner files
the subject petition on 28-08-2023.
15. The petitioner also could have participated pursuant to
the e-auction, but chooses to remain outside and challenge the
tender/e-auction notification issued on 21-08-2023. No fault can
be found with the Company in issuing e-auction notification for
lifting of remaining ore lying in Thagadur Chromite Mine. The
petitioner having lost all the opportunity that was granted to it, for
five years to make payment and lift the ore, has been dodging the
issue on one pretext or the other and now chooses to remain
outside the tender, though it was open for it to participate in the
said tender and calls in question the e-auction notification. This
Court in the case of MAHALAKSMI ENGINEERING WORKS v.
BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED
considering the locus of a person who does not choose to
participate in the tender but challenges the tender, has clearly held
that a person who chooses not to participate in the tender cannot
be seen to call in question the tender. This Court holds as follows:
"10. In the light of the second issue cutting at the root
of the matter, I deem it appropriate to consider the same at
the outset.
Issue No. 2:
(ii) Whether petitioners have any locus to
question any act of BESCOM qua the tender notified,
notwithstanding their non-participation in the tender
process?
2022 SCC OnLine KAR 1719
11. The afore-narrated facts with regard to issuance of
notice inviting tender for the works notified therein are not in
dispute. The petitioners though belong to Scheduled
Castes/Scheduled Tribes and reservation of 10 tenders being
accorded thereto out of 50 tenders, did not participate in the
tender process, are all a matter of record. The notice inviting
tender did no where restrict any tenderer to participate in any
tender on the NIT dated 28.03.2022. Though reservation was
stipulated qua 10 tenders, the tenderers belonging to
Scheduled Castes/Scheduled Tribes were not precluded from
participating in the tenders of general category. As a matter of
fact, there were several tenderers who did participate in both
the tenders reserved for Scheduled Castes/Scheduled Tribes
and in the general category. The petitioners chose to sit on the
fence, did not participate in the tender process at all, neither
in the 10 reserved tenders nor in the 40 unreserved tenders.
Therefore, the petitioners now seek to point out lacunae in the
tenders, sitting outside throughout. Whether that would be
permissible is the question?
12. A tenderer who remains outside and then seeks to
question the tender process or conditions stipulated in the
tender notification would not get locus to challenge and
condition of tender. This issue need not detain this Court for
long or delve deep into the matter. The Apex Court in the case
of NATIONAL HIGHWAYS AUTHORITY OF INDIA (supra)
considering this issue, has held as follows:
"20. While considering the relief claimed by the
respondent (claimant), the same should have been
tested on the touchstone of the principle governing the
tender process, especially when the validity of the
tender document has not been put in issue or
challenged before any competent forum. Going by the
terms and conditions in the tender documents, as
already alluded to in para 10 above, there is no title of
doubt that the right of the claimant (respondent) to
match the bid of L-1 or to exercise ROFR would come
into play only if the respondent was to participate in the
tender process pursuant to the notice inviting tenders
from the interested parties. The objective of tender
process is not only to adhere to a transparent
mechanism but to encourage competition and give equal
opportunity to all tenderers with the end result of
getting a fair offer or value for money. The plain
wording of the eligibility clause in the tender documents
and the incidental stipulations make it explicit that the
respondent was required to participate in the tender
process by submitting its sealed bid (technical and
financial). The fact that a deeming clause has been
provided in the tender document that if the respondent
was to participate in the bidding process, it shall be
deemed to fulfill all the requirements of the tender
Clauses 3 to 6 of RFP, being the existing concessionaire
of the project, does not exempt the respondent from
participating in the tender process; rather the tenor of
the terms of the documents made it obligatory for the
respondent to participate in the tender process to be
considered as a responsive bidder, along with
others. Having failed to participate in the tender
process and, more so, despite the express terms
in the tender documents, validity whereof has not
been challenged, the respondent cannot be heard
to contend that it had acquired any right
whatsoever. Only the entities who participate in
the tender process pursuant to a tender notice can
be allowed to make grievances about the non-
fulfillment or breach of any of the terms and
conditions of the tender documents concerned.
The respondent who chose to stay away from the
tender process, cannot be heard to whittle down,
in any manner, the rights of the eligible bidders
who had participated in the tender process on the
basis of the written and express terms and
conditions. At the culmination of the tender process, if
the respondent had not participated, in law, the offer
submitted by the eligible bidders is required to be
considered on the basis of the stated terms and
conditions. Thus, if the claim of the respondent was to
be strictly adjudged on the basis of the terms and
conditions specified in the subject tender document, the
respondent has no case whatsoever."
(Emphasis supplied)
13. The Apex Court clearly holds that the tenderer who
would chose to stay away from the tender process cannot he
heard to whittle down the rights of eligible bidders who had
participated in the tender process on the basis of written and
express terms and conditions. At the culmination of the tender
process, if the tenderer had not participated in law, he cannot
be scen to question the terms and conditions. The petitioners,
in the case at hand, have admitted their non participation in
the tender. Staying away from the tender, they cannot now
seek to challenge the tender. It is further germane to notice a
similar view taken by the Calcutta High Court. A Division
Bench of the High Court of Calcutta in the case of SUBIR
GHOSH v. STATE OF WEST BENGAL has held as follows:
"4. The more important factor is that the tender
process in this case opened sometime in March, 2019
and the closing date for submitting online bids was April
1, 2019. The writ petition was filed in January, 2020,
Though it is submitted on behalf of the writ petitioner
that the time to submit the bids was extended, no
specific date in such regard is indicated. What is
apparent is that the writ petitioner did not participate in
the bidding process and yet chose to challenge the
same.
5. It is possible that a prospective bidder finds
the terms of the tender documents to be unfair or illegal
and challenges the same; but such challenge has to be
before the time to put in the bids is closed. At any rate,
if a bid is made and the bid is thrown out on an illegal or
unfair ground contained in the tender documents, even
then, a challenge can be fashioned. But a person who
has not participated in the bidding process at all
cannot challenge the tender conditions on any
ground whatsoever. This admitted aspect of the
matter escaped the attention of the Single Bench while
passing the impugned order of January 15, 2020.
6. For the reasons aforesaid, the order dated
January 15, 2020 cannot be sustained and the same is
set aside. Since the best arguable case of the writ
petitioner will not result in any of the tender terms
being altered as the writ petitioner did not participate in
the process at all, the writ petition itself is dismissed.
Nothing in this order will be construed to be an approval
of the terms and conditions of the tender document and
in an appropriate challenge, the same may be
considered in accordance with law."
14. In the light of the judgments of the Apex Court in
the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA and
the Division Bench of the Calcutta High Court in the case
of SUBIR GHOSH holding that only a participant can question
the tender, the challenge raised by the petitioners who are not
the participants in the subject tender, would thus tumble
down. Therefore, the second issue that fell for consideration
which concerns locus of the petitioners to challenge the tender
process being held against the petitioners, the first issue with
regard to tender process would not arise for consideration, as
it is trite law, that if a writ petitioner has no locus to raise a
challenge to the subject matter, no other ground on merit of
the challenge need be considered."
In the light of the Judgment of this Court, the challenge to the
impugned e-auction notification tumbles down.
16. Insofar as other reliefs that are sought for right from
2017, the challenge of which is unsustainable solely on the ground
of default of the petitioner. It cannot be said that the Company has
to wait till the petitioner gets ready to lift the ore. Certain sanctity
is attached to the time limit prescribed. For five years, the
petitioner has failed to act in terms of the letter of intent.
Therefore, no fault can be found in any of the actions, including the
forfeiture of earnest money deposit.
17. Finding no merit in the petition on any ground
whatsoever, the petition stands rejected.
Pending applications, if any, also stand disposed.
Sd/-
JUDGE
bkp
CT:MJ
