Calcutta High Court (Appellete Side)
3163W/2014 on 29 January, 2015
Author: Patherya
Bench: Patherya
1
27. 29-01-2015 RVW 235 of 2014
Sd. Ct. 8
With
CAN 9462 of 2014
In
WP 3163 (W) of 2014
Mr. D. Ghosh
Mrs. P. Dasgupta..For the applicant/IOC.
Mr. K. Safiullah..For the opposite party/petitioner.
This review petition has been filed for the reason that in the
writ petition all that the petitioner sought was the quashing of order
dated 15th January 2014 and revocation of letter dated 23rd October
2013 so also to allow the writ petitioner to participate in the tender
floated.
The parties were heard on the said issues and the writ petition
was dismissed. It is after the dismissal order was passed that
counsel for the petitioner sought for the earnest money deposit to be
refunded and this prayer was allowed.
Such relief of refund of earnest money deposit was not sought
in the writ petition and it is true that the respondent company had
no opportunity to deal with the said issue and in view of (2010)12 SCC 419, this part of the order which deals with refund of the earnest money deposit could not have been passed by the Court. It was not brought to the notice of the Court that there was no pleading for refund of earnest money deposited by the petitioner at the time of 2 hearing and it is brought to the notice of the Court by virtue of the review petition and in view of (2003)9 SCC 519, the following paragraphs of the order dated 22nd August 2014 is deleted only for the reason set out herein above :
" It has been contended by the petitioner's Counsel that the earnest money deposit has not been returned to the petitioner in spite of him being unsuccessful. This has been refuted by Counsel for the respondent authorities on the ground that the same has been forfeited.
It is made clear that the question of forfeiture will not arise as forfeiture is only permitted in case of non-compliance of any of the provisions of the terms and conditions of the contract. In the instant case, the petitioner is unsuccessful and the earnest money ought to have been returned to him. Accordingly, let such earnest money be refunded to the writ petitioner within a week from the date of receipt of this order."
It is made clear that the merits with regard to earnest money deposit or forfeiture thereof or refund has not been considered in this review petition.
In view of the aforesaid the review application succeeds and CAN 9462 of 2014 is allowed.
Photostat certified copy of this order be given to the parties, if applied for.
3( Patherya, J. )