M/S. Satish Keraram Amit And Ors vs Union Of India And Ors
2021 Latest Caselaw 17792 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2716/2017

1. M/s Satish Keraram Amit Jv Having Its Office At 21 E/2 Chopasani Housing Board, Jodhpur, Rajasthan.

2. M/s Satish Malpani, A Sole Proprietorship Firm Through Its Proprietor Mr. Satish Malpani Having Office At 2/108, Royal Greens Sirsi Road, Jaipur, Rajasthan.

3. M/s Keraram S/o Poosaram, A Sole Proprietorship Firm Through Its Proprietor Mr. Keraram Having Office At 95, 1St A Road, Sardarpura, Jodhpur, Rajasthan.

4. M/s Amit Traders, A Sole Proprietorship Firm Through Its Representative Mr. Amit Chouhan Having Its Office At 21 E/2 Chopasani Housing Board Jodhpur, Rajasthan.

----Petitioners Versus

1. Union Of India, Ministry Of Railways Through Its Secretary, Rail Bhawan, 1, Raisina Road, New Delhi- 110001.

2. Divisional Railway Manager Engg., Jodhpur Division, North Western Railway, Drm Office, Railway Colony, Jodhpur - 342003, Rajasthan.

3. Tender Committee For Nit No. 59 Of 2016-17 Through Its Convener, Sr. Divisional Engineer Coordination, Drm Office, Railway Colony, Jodhpur - 342003, Rajasthan.

4. Divisional Engineer West, Drm Office, Railway Colony, Jodhpur - 342003, Rajasthan.

                                                                     ----Respondents


For Petitioner(s)             :     Mr. Siddharth Tatiya
For Respondent(s)             :     Mr. Kamal Dave

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

26/11/2021

1. This writ petition has been preferred claiming the following

reliefs:

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"a) The impugned order/letter dated 13.01.2017 (Annexure 12) may kindly be quashed and set aside; and

b) The respondents be directed to allow the petitioners to participate in Tender No.125 of 2016- 17; and/or

c) The respondents be directed to release/refund the Earnest Money Deposit of the petitioners; and/or

d) The respondents be directed to pay interest on the illegal forfeiture of EMD at a rate as found suitable by this Hon'ble Court."

2. Learned counsel for the petitioners submits that a Notice

Inviting Tender (NIT) was published on 01.07.2016 by respondent

No.2 as tender No.59 of 2016-17 for construction of Limited

Height Subways (LHS) in lieu of 13 numbers level crossings in

SMR-BLDI Section of Jodhpur Division of North Western Railways.

Learned counsel further submits that the petitioners participated

in the said NIT, as per its terms and conditions.

3. Learned counsel for the petitioners also submits that the

petitioners' technical bid was accepted and their financial bid was

lowest, and thus, they became entitled to complete the task, as

per the NIT.

4. Learned counsel for the petitioners further submits that the

offer of the petitioners was valid and open for acceptance by

Tender Committee only till 02.11.2016; however, it was not

accepted within the aforesaid validity period. Learned counsel also

submits that upon an oral request of the respondent No.3, the

petitioners vide their undated letter extended the validity of their

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offer/bid upto 15.11.2016, in pursuance of condition No.6(b) of

the Tender.

5. Learned counsel for the petitioners however, submits that the

Tender Committee did not accept the petitioners' offer and failed

to issue Letter of Acceptance (LOA), even within the validity of the

extended offer, which was upto 15.11.2016.

6. Learned counsel for the petitioners further submits that it is

an admitted position between the parties that only communication

for acceptance was made by the respondents on 16.11.2016.

7. Learned counsel for the petitioners also submits that since it

was the respondents, who were responsible for not accepting the

offer, therefore blacklisting the petitioners and withholding their

earnest money on account of the aforesaid analogy of events, was

not correct.

8. Learned counsel for the petitioners relied upon the precedent

law laid down by the Hon'ble Supreme Court in Amarjeet Singh

Vs. Zonal Manager, FCI, New Delhi & Another reported in

2001 SCC Online P&H 722, relevant portion of which reads as

under:

"20. From the material on record, it is clear that there was no absolute and unqualified acceptance of the petitioner's offer.

21. It is a settled principle of law that there can be no contract without consensus ad idem. The respondents had yet to satisfy themselves about the financial status of the petitioner. The value of his land had yet to be checked. The non-encumbrances certificate as also the profit and loss statement had still to be examined. Various formalities had to be complied with. The Fax

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message militates against an absolute and unconditional acceptance of the petitioner's offer.

22. Mr. Rajesh Garg submitted that Post Office was the agent of the respondents. Mr. Gupta contended that since the respondents are not stationed at Moonak, the communication had to be by post. Thus, the Post Office was the agent of the petitioner. Be that as it may, we are satisfied that in the present case, the petitioner's offer had not been unconditionally accepted within the period of its validity. Thus, it stood revoked by the lapse of time."

9. Learned counsel for the petitioners further relied upon the

precedent law laid down by the Hon'ble Supreme Court in Gorkha

Security Services Vs. Government (Nct of Delhi) And Ors.

reported in (2014) 9 SCC 104, relevant portion of which reads as

under:

"31. When it comes to the action of blacklisting which is termed as "civil death" it would be difficult to accept the proposition that without even putting the noticee to such a contemplated action and giving him a chance to show cause as to why such an action be not taken, final order can be passed blacklisting such a person only on the premise that this is one of the actions so stated in the provisions of NIT.

34. For the aforesaid reasons, we are of the view that the impugned judgment [Gorakha Security Services v. Govt. (NCT of Delhi), (2013) 205 DLT 309] of the High Court does not decide the issue in the correct perspective. The impugned Order dated 11-9- 2013 passed by the respondents blacklisting the appellant without giving the appellant notice thereto, is contrary to the principles of natural justice as it was not specifically proposed and, therefore, there was no show-

(5 of 8) [CW-2716/2017]

cause notice given to this effect before taking action of blacklisting against the appellant. We, therefore, set aside and quash the impugned action of blacklisting the appellant. The appeals are allowed to this extent. However, we make it clear that it would be open to the respondents to take any action in this behalf after complying with the necessary procedural formalities delineated above. No costs."

10. Learned counsel for the petitioners also relied upon the

precedent law laid down by the Hon'ble Supreme Court in

Kalabharati Advertising Vs. Hemant Vimalnath Narichania

And Ors. reported in AIR 2010 SC 3745, relevant portion of

which reads as under:

"Legal malice

25. The State is under obligation to act fairly without ill will or malice-- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49] , State of A.P. v. Goverdhanlal

(6 of 8) [CW-2716/2017]

Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)"

11. Learned counsel for the petitioner has also placed reliance on

the precedent law laid down by the Hon'ble Supreme Court in

Food Corporation of India Versus Hari Prasad Kanoria and

Ors. reported in 1992 SCC OnLine Cal 64, relevant portion of

which reads as under:

"32. Having pointed out that so far the question of payment of interest for the period from the date of the award till the date of the decree was concerned, that question was not specifically considered in Abhudata Jena's case, AIR 1988 SC 1520; but interest for the said period was allowed in cases governed by the Interest Act, 1978 as Section 3(1)(a) was equally applicable in such cases. However, from that every judgment it shall also appear that it was directed to confine the interest on the principal sum or unpaid part only at the rate of 9%. For the period commencing from 16-3-1981 to the date of the entering upon the reference by the Arbitrator, as already pointed out above, the Arbitrator has awarded interest at the rate of 16% per annum. For the period commencing from the date of the award till the date of the decree or actual payment, whichever is earlier, we direct payment of interest at the rate of 9% per annum instead of 16% per annum.

33. Accordingly, the appeal is dismissed subject to the modification regarding payment of interest at the rate of 9% per annum instead of 16% per annum as directed by the Arbitrator for the periods mentioned above."

(7 of 8) [CW-2716/2017]

12. On the other hand, learned counsel for the respondents

vehemently opposes the petition on the ground that the oral

acceptance was known to the petitioners before 15.11.2016, and

thus, the onus was upon them to conduct the work, but they have

fraudulently not done the same and rather have tried to escape

from the tender, in the garb of belated acceptance by the tender

committee.

13. Learned counsel for the respondents further submits that the

next bid made by them are lower, which throw much light on the

conduct of the petitioners.

14. Learned counsel for the respondents however could not deny

that the Tender Committee could not accept the offer of the

petitioners till 02.11.2016, and thereafter, when the petitioners

extended their offer upto 15.11.2016, they still do not have any

document to show that they could accept the same uptil

15.11.2016; the only document on record is dated 16.11.2016.

Learned counsel however submits that the dispute could have

been taken to arbitration.

15. After hearing learned counsel for the parties as well as

perusing the record of the case alongwith the precedent laws cited

at the Bar, this Court finds that once the respondents themselves

were in some kind of fault of not accepting the offer of the

petitioners till the last date, firstly on 02.11.2016 and lastly on

15.11.2016, then blacklisting the petitioners or withholding their

earnest money was not the proper course.

16. Looking into the fact that this petition is pending before this

Court since 2017 i.e. for last about four years, this Court is

inclined to quash the order dated 13.01.2017 as the withholding

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of the petitioners' earnest money and blacklisting them for non

compliance of the acceptance notice given by the Tender

Committee does not warrant such harsh action particularly in light

of the accepted fact that the Tender Committee itself failed to

accept the offer given by the petitioners until the last date, which

was 02.11.2016 and then extended upto 15.11.2016.

17. In light of the aforesaid observations, the order dated

13.01.2017 is quashed and set aside, and the respondents are

directed to return earnest money deposited by the petitioners

alongwith current rate of interest applicable for the nationalized

banks.

18. It is made clear that this particular adjudication of one

particular tender, wherein the petitioners participated

subsequently and failed, does not call for any further observation,

except the fact that the cause of not accepting the particular

tender in question, even when it was belated by one day, shall not

be a cause for future blacklisting of the petitioners. However, in

case there is any other conduct of the petitioners, which is in

violation of the law or the rules, the respondents shall be free to

take any lawful action against the petitioners, including

blacklisting.

19. With the aforesaid observations and directions, the present

petition stands disposed of. All pending applications also stand

disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

133-SKant/-

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