Karnataka High Court
M/S Concorde Constructions vs The Commissioner on 16 February, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.14154 OF 2019 (LB-BMP)
BETWEEN:
M/S CONCORDE CONSTRUCTIONS,
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.921, 38TH CROSS, 22ND MAIN,
4TH T BLOCK, JAYANAGAR,
BENGALURU-560 041
REPRESENTED BY ITS PARTNER
SRI.K.S.ARUN KUMAR
AGED ABOUT 52 YEARS,
S/O K.T. SRINIVAS GOWDA. ...PETITIONER
(BY SRI K.K.VASANTH, ADVOCATE)
AND:
1. THE COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R.SQUARE, CORPORATION CIRCLE,
BENGALURU-560 002.
2. THE EXECUTIVE ENGINEER,
JAYANAGARA DIVISION,
BRUHATH BENGALURU MAHANAGARA PALIKE,
BBMP BUILDING, 18TH MAIN,
39TH CROSS, JAYANAGARA 4TH T BLOCK,
BENGALURU-560 041. ...RESPONDENTS
(BY SRI ASHWIN S HALADY, ADVOCATE FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENTS, HERE THE PARTIES QUASH
THE ORDERS DTD 5.7.2017 PASSED BY THE EXECUTIVE
ENGINEER, JAYANAGARA DIVISION, BBMP THE R-2 HEREIN
WITH ANNEXURE-P.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In pursuance of the tender notification dated 10.7.2014 issued by the respondent - BBMP, the petitioner submitted his bid. The financial bid of the tender was opened on 13.8.2014 and the petitioner was declared as the successful bidder. The validity of the tender documents was 90 days from the date of publication of the tender notification i.e. 10.7.2014. However, the respondent - BBMP did not choose to call upon the petitioner to execute an agreement within 90 days from the date of publication of the tender document. Hence, the petitioner submitted an application with the respondent - BBMP to withdraw the bid and further requested the respondent - BBMP to refund the earnest money deposit (for short `EMD') of Rs.2,00,000/- deposited by the petitioner at the time of submitting his bid. The petitioner's grievance is that the said request of the petitioner is not considered by the respondent - BBMP.
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2. Learned counsel for the respondent - BBMP would make the following submissions:
a) The petitioner having voluntarily withdrawn the bid is not entitled for refund of EMD amount and the respondents -
BBMP have rightly forfeited the EMD deposited by the petitioner.
b) The petitioner was required to execute the agreement in favour of the respondent - BBMP and as such having not complied with the terms and conditions of the tender, the petitioner is not entitled for refund of EMD.
3. I have considered the submissions of the learned counsel for the parties.
4. The tender notification was published on 10.7.2014 and the validity of the tender document was for a period of 90 days which expired on 9.10.2014. The petitioner was declared as successful bidder on 11.8.2014. The agreement was required to be executed within a period of 90 days from the date of publication of the tender document.
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5. The respondent - BBMP having not chosen to call upon the petitioner to execute the agreement, the petitioner filed an application for withdrawing of the bid and further requested to refund the EMD. However, the respondent - BBMP issued a notice on 9.1.2015 calling upon the petitioner to execute the agreement. The petitioner did not choose to execute the agreement since the validity of the tender document had expired and his request for refund of EMD was pending consideration before the respondent - BBMP. Thereafter, the respondent - BBMP has issued work order in favour of the second highest bidder and it is brought to the notice of this Court that the second highest bidder has executed the work entrusted to him under the work order.
6. The respondents - BBMP having not executed the agreement within 90 days from the date of publication of the tender document, the petitioner was justified in withdrawing his bid and further requesting the respondents - BBMP to refund the EMD. Clause 9.6 of the tender document specifies that the EMD may be forfeited if the tenderer withdraws the tender after tender opening during the period of tender validity. 5
7. It is undisputed that the validity of the tender document expired on 9.10.2014. Hence, the respondent - BBMP could not have invoked Clause 9.6 of the tender document so as to forfeit the EMD deposited by the petitioner. Even otherwise, the respondents - BBMP having entrusted the work to the second highest successful bidder now cannot deprive the petitioner to refund the EMD, which otherwise results in unjust enrichment.
8. In view of the preceding analysis, I am of the considered view that the petitioner is entitled for refund of the EMD with interest at 6% p.a. from the date of application dated 1.1.2015 having regard to the fact that the petitioner submitted an application for refund of EMD on 11.8.2014. The respondent - BBMP is directed to refund the EMD of Rs.2,00,000/- with interest at 6% p.a. to the petitioner from 1.1.2015 till actual payment within three months from the date of receipt of certified copy of this order.
With the above direction, the writ petition stands disposed of.
Sd/-
JUDGE BKM