Gujarat High Court
Dandi Chemfood Private Limited vs Union Of India on 4 August, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.20494 of 2015
With
R/SPECIAL CIVIL APPLICATION NO.20495 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
===================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the interpretation of the Constitution of NO India or any order made thereunder ?
=================================================== DANDI CHEMFOOD PRIVATE LIMITED Versus UNION OF INDIA & 1 other(s) =================================================== MR SALIL M THAKORE(5821) for the Petitioner(s) No.1 MR MIHIR JOSHI, SENIOR ADVOCATE, with MR DHAVAL D VYAS(3225) for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 1 =================================================== CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 04/08/2022 COMMON CAV JUDGMENT (1) Since the issue involved in the present writ petitions is common, the same are heard and decided analogously by this common judgment.
(2) In the present writ petitions, the petitioners pray for quashing and setting Page 1 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 aside Resolution No.66 passed by the Board of Trustees of respondent No.2-Kandla Port Trust (KPT) in its meeting held on 28.08.2015 and also pray for interest at the rate of 8% per annum on the Earnest Money Deposit (EMD) for the period from 05.08.2011 (i.e. the date of deposit of Earnest Money) till 14.08.2015 (i.e. the date of refund of Earnest Money). However, learned Advocate Mr.Salil Thakore appearing for the petitioners submitted that so far as the period is concerned, this Court can fix the same as per discretion of the Court and with regard to payment of interest, in the alternative, it is submitted that the same may be paid at the rate of interest, whichever is enjoyed by the respondent-KPT for the said period.
FACTS INCORPORATED FROM SCA NO.20494 of 2015:
(3) In 2010, the Ministry of Shipping, Government of India (GoI) came out with the Land Policy for Major Ports, 2010. In about June 2011, the respondent-KPT issued a notice inviting E-tender cum E-auction for allotment of plots between Village Padana and Village Chirai for Production of salt on 30 years lease on "as is where is basis".
3.1) On 05.08.2011, the petitioner submitted necessary documents for participating in the Page 2 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 E-auction. The petitioner also submitted a Demand Draft of Rs.2,500/- towards tender fees and a Demand Draft of Rs.3,00,000/- towards Earnest Money Deposit required to be deposited for bidding for a 100 acre plot.
3.2) By a letter dated 20.01.2012, the respondent-
KPT informed the petitioner that E-auction would be done on 30.01.2012 and 31.01.2012. The petitioner participated in the online auction held on 30.01.2012 and 31.01.2012. With its bid of Rs.3,00,868/- for the total premium per acre being the highest, the petitioner was the highest bidder for Plot No.20 in the auction.
3.3) Since the petitioner did not receive any communication from the respondent-KPT, the petitioner addressed a letter dated 21.02.2012 requesting the respondent-KPT to provide the status of the tender.
3.4) It appears that in the meeting held on 06.03.2012, the Board of the respondent-KPT passed Board Resolution No.350 and resolved to approve allotment of salt manufacturing plots to successful bidders on 30 years lease basis and it was resolved to allot plot No.20 to the petitioner, being the highest bidder.
Page 3 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 3.5) Thereafter, it appears that the respondent-
KPT had received instructions from the Ministry of Shipping stating that the Cabinet Secretariat vide letter dated 08.08.2011 had asked it to keep in abeyance the cases of leasing of port land till a final decision is taken on the proposed policy for transfer and alienation of the Government land and the matter is pending before the Government of India for necessary approval. Thereafter, further representations were sent to the respondent-KPT.
3.6) The Chairman of the respondent-KPT responded vide a letter dated 19.12.2012, wherein it was stated that the Board had resolved to approve allotment of salt manufacturing plots to the highest bidders on 30 years lease basis.
3.7) In about January, 2014, the Ministry of Shipping, Government of India came out with the Land Policy Guidelines for Major Ports, 2014. In view of the new policy in the meeting held by the Board, it was decided that it would be appropriate to discharge the tenders and go in for the allotment of salt land through tender-cum-auction process.
3.8) Thereafter, various communications were Page 4 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 exchanged between the petitioner and the respondent-KPT. Ultimately, the petitioner filed Special Civil Application No.1122 of 2015 inter alia praying for an order directing respondent No.2 to allot the plot in question to the petitioner. On 13.07.2015, the said petition came to be disposed of with a direction to the respondent No.2 to refund the Earnest Money Deposit within a period of four weeks from the date of the order and further observing that the earnest money having been enjoyed and retained by respondent No.2 for a period of four years, it would be expected from respondent No.2 to consider paying a reasonable rate of interest which would be about 8% per annum. This Court granted liberty to the petitioner to make appropriate representation in this regard to respondent No.2 and directed respondent No.2 to consider the same in accordance with law.
3.9) By the letter dated 15.07.2015, the petitioner made a representation to respondent No.2 for payment of interest at 8% per annum on the earnest money. The petitioner also submitted the hand receipts and RTGS details along with another letter dated 15.07.2015. The respondent-KPT refunded the Earnest Money approx. Rs.3,00,000/- to the petitioner by way of an RTGS transfer on Page 5 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 or about 14.08.2015, however, without interest, giving cause to file the present writ petition.
SUBMISSIONS:
(4) Learned advocate Mr.Salil Thakore appearing for the petitioner has submitted that since the respondent-KPT neither allotted the plot to the petitioner nor cancelled the tender process and arbitrarily and on extraneous considerations kept the matter in abeyance and thereby held on to the money and enjoyed the petitioner's money for a period of nearly four years, it is entitled to interest at the same rate. Learned Advocate Mr.Thakore has laid emphasis on Clause 4.9 of the Tender and has submitted that the petitioner is entitled to the interest on the EMD since the petitioner is a successful bidder.
4.1) It is submitted that the EMD submitted by the petitioner was the money belonging to them and consequently any interest earned thereon is also money belongs to him. It is submitted that this Court, in the aforesaid order dated 13.07.2015 passed by the Division Bench in Special Civil Application No.1122 of 2015, has observed that the respondent-KPT was expected to pay reasonable interest of 8% on the amount retained by it. Thus, it is submitted that the respondent-KPT may be Page 6 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 directed at least to pay the interest rate, which they have enjoyed on the money retained by it.
4.2) In support of his submissions learned advocate Mr.Thakore has placed reliance on the following judgements:
(i) Shree Baidyanath Ayurved Bhawan Pvt. Ltd. vs. State of Bihar Ors, (1996) 6 S.C.C. 86;
(ii) Godavari Sugar Mills Limited vs. State of Maharashtra & Ors., 2011(2) S.C.C. 439;
(iii)Haryana Financial Corporation & Anr. vs. Rajesh Gupta, 2010(1) S.C.C. 655;
(iv) L.I.C of India & Anr. vs. Consumer Education and Research Center, AIR 1995 S.C. 1811;
(iv) Order dated 19.11.2010 passed in Special Civil Application No.8062 of 1997 (In the case of Vishant Metal Re-Rerollers Private Limited vs Gujarat Maritime Board and Anr.);
(5) Per contra, learned Senior Advocate Mr.Mihir Joshi appearing with learned Advocate Mr.Dhaval D. Vyas for the respondent-KPT has submitted that in fact the petitioner has suppressed that he has filed a declaration dated 04.08.2011 with its bid categorically Page 7 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 agreeing that the earnest money remitted with the bid would be held by the Port Trust without interest. Hence, the writ petition seeking interest on the EMD may not be entertained.
5.1) Learned Senior Advocate Mr.Joshi has asserted that it was categorically informed to the petitioner and other bidders way back in the year 2012 that the respondent-KPT was not in a position to process the bids and finalize the tenders in view of the instructions of August, 2011 received from the Ministry of Shipping directing the cases of leasing of plots be kept in abeyance till final view is taken on the proposed policy of transferring and alienation of the Government land. In view of such instructions the respondent-KPT could not finalize the tenders.
5.2) It is contended that the parties i.e. the petitioner and the respondent had categorically agreed that the earnest money would not carry any interest and, therefore, the petitioner, being an agreeing party, is bound by such agreement. It is submitted that having once agreed that it would not claim any interest on the earnest money, the petitioner cannot now claim interest being a compensatory cost, therefore, the claim for Page 8 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 interest therefore cannot be maintained.
5.3) It is contended by learned Senior Advocate Mr.Joshi that it is the matter of record that despite the respondent-KPT seeking permission from the Central Government to allot the plots, the Central Government had not approved the allotment of plots, and the petitioner was always aware of the instructions of 08.08.2011 issued by the Ministry of Shipping to the Ports to keep in abeyance the leasing of plots till policy of transfer and alienation of the Government land was finalized by the Government of India. Therefore, it is submitted that it cannot be contended that the respondent-KPT since had neither allotted the plots to the petitioner nor cancelled the tender process and arbitrarily and on extraneous consideration kept the matter in abeyance and thereby held on to enjoy the petitioner's money for a period of nearly four years.
5.4) It is submitted that the petitioner has attempted to conveniently interpret Clause- 4.9 contending it to be inapplicable to a case where party is a successful bidder, emphasizing inapplicability for the case where the plot is neither allotted to the successful bidder nor his tender process Page 9 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 cancelled and where the authority holds to and enjoys the money for a period of four years. It is asserted by the learned Senior Advocate that the said condition categorically envisages different stages in the tender process either be it before finalization or otherwise and in both the eventualities the earnest money has to be refunded without interest. Since the tenders were not finalized and, therefore, the earnest money is refunded to the petitioner in the manner provided. It is submitted that the condition that "EMD will not carry any interest" is independent to the stage of tender and irrespective to the status party being refunded the earnest money. Thus, it is submitted that the writ petition may not be entertained as the same is not maintainable and the petitioner can file appropriate remedy of obtaining money decree in this regard. It is submitted that there is no statutory right available to the petitioner claiming interest and such interest is being claimed in the nature of compensation, hence, a writ petition for claim of interest is not maintainable.
5.5) In support of his submissions, learned Senior Advocate Mr.Joshi has placed reliance on two judgments of the Apex Court reported in the Page 10 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 case of Rishi Kiran Logistics Pvt. Ltd. vs. Board of Trustees Kandla Port Trust and Ors., AIR 2014 S.C. 3358 and in case of Union of India and Ors. vs. Orient Enterprises and Anr. (1998) 3 S.C.C. 501. He has submitted that the judgments, on which reliance is placed by the petitioner, will not apply to the facts of the case, and each judgement is governed by its facts. It is submitted that in the present case, the respondent no.2 has not retained the money illegally or by any ill-motive. It is also submitted that the petitioner has willfully participated and is bound by the clauses of the tender documents.
5.6) In response to the aforesaid submissions, learned Advocate Mr.Thakore has submitted that so far as the declaration dated 04.08.2011 taken from the petitioner is concerned, the same is required to be given in order to participate in the tender process and is in compulsion, hence the same cannot be pressed for denying interest to the petitioner. It is submitted that even in contractual relation the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put must be to avoid arbitrary action. It is submitted that the action of the "State" or its instrumentally can be Page 11 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 checked under Article 14 of the Constitution of India and the action of such authority must be subject to rule of law and the Governmental authorities have to pass the test of reasonableness and fair play. Thus, he has submitted that the respondent-KPT may be directed to pay interest to the petitioner for any period that may be determined by this Court.
CONCLUSION:
(6) While reserving the writ petition for judgment vide order dated 19.07.2022, this Court had requested the learned advocate Mr.Vyas appearing for the respondent-KPT to apprise this Court with regard to the rate of interest, which it has earned on the amount of EMD deposited by the petitioner. After receiving email and communication dated 19.07.2022, in this regard, it is submitted by learned Advocate Mr.Vyas that the amount of the petitioner was deposited in the current account, which did not earn any interest. Learned advocate Mr.Thakore appearing for the petitioner is also accordingly informed and a copy of the same are handed over to him. The copies of email and the communication dated 19.07.2022 are ordered to be take on record.Page 12 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022
C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 (7) Thus, the amount of EMD, which was deposited by the petitioner, was deposited in the current account, which does not carry any interest, hence the prayer for the petitioner with regard to claim interest at the rate enjoyed by the respondent-KPT on such amount does not merit acceptance. The EMD was deposited by the petitioner on 05.08.2011 and has been returned on 15.07.2015. The petitioner is claiming interest for the aforesaid period or for any period as deemed fit by this Court.
(8) The petitioner has primarily premised its case on two submissions -- (1) on the observations made by this Court in the order dated 20.01.2015 passed in Special Civil Application No.1122 of 2015; and (2) on the interpretation of Clause 4.9 of the Tender document.
(9) The petitioner had filed a writ petition being Special Civil Application No.1122 of 2015 for allotment of the plots after the tender process was over. The said writ petition was disposed of vide order dated 20.01.2015 by observing thus:
"In our view, the fact remains that the earnest money was enjoyed and retained by respondent No.2 for a period of about four years. Therefore, by way of compensatory Page 13 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 measure, it would be expected for respondent No.2 to consider to pay interest at bank rate or a reasonable interest, which could roughly be about 8% per annum. However, as neither of the petitioners has moved the Board for the interest, nor there is consideration by the Board up till now, we leave it at that. However, it is observed that the petitioners shall be at liberty to make appropriate representation to respondent No.2 Board for payment of interest at the rate of 8% per annum during the period when the earnest money was retained by respondent No.2. Such representation shall be considered by respondent No.2 in accordance with law and the decision shall be rendered preferably within a period of two months from the date of receipt of the representation. It is made clear that the pendency of the representation shall not operate as a bar for getting the refund of the earnest money by the petitioners. Respondent No.2 shall communicate the decision to the petitioners upon representation. Thereafter, the petitioners may have recourse to law, if required, in accordance with law."
(10) Pursuant to the aforesaid order, the petitioner made a representation claiming interest at the rate of 8%, which has been rejected vide impugned resolution dated 28.08.2015. It is the case of the petitioner that the interest on the amount of EMD is required to be paid in view of the observations made by this Court in the aforesaid order. A cautious reading of the aforenoted observations depict that the Division Bench has recorded an "expectation" on behalf of the respondent to "consider to pay interest" roughly at the rate of 8%. In other words, the "consideration" of payment of interest was "expected" from the respondent-KPT. Accordingly, the respondent- KPT has considered the aspect of payment of Page 14 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 interest as per the "expectation" of the Division Bench and has concluded that the petitioner is not entitled to any interest. Thus, in absence of any concrete and specific directions of payment of interest, such "observations" cannot be construed to have the same effect that of "directions". It only signifies the consideration of such payment of interest. Reliance in this regard has been placed by the petitioner on the decision of the Supreme Court in case of Shree Baidyanath Ayurved Bhawan Pvt. Ltd. (supra). The facts narrated in the said judgement suggest that there was an illegal action of levy, and the same was declared as bad in law the interest was ordered. Such order was set aside and declared as illegal and the amount so collected was ordered to be refunded. Despite such order, the refund was not made which constrained the Apex court to refund the amount with interest. In the present case, the Division Bench, while examining the issue with regard to the allotment of plot to the petitioner in the writ petition, has not declared the action of the respondent-KPT in retaining the amount of EMD as illegal. Hence, in absence of any finding in this regard, the observations made by the Division Bench, the respondent-KPT cannot be compelled to pay interest on the EMD. Thus, reliance Page 15 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 placed on the order dated 20.01.2015 passed in Special Civil Application No.1122 of 2015 is misplaced and misdirected.
(11) The second aspect, on which reliance is placed in support of his submission is on the provision of Clause 4.9 of the Tender. The same reads as under:
"4.9 Earnest Money Deposit The Earnest Money Deposit for each plot admeasuring 50.00 Acres will be Rs.1.37 lakhs and for each plot admeasruing 100.00 Acres will be Rs.3.00 lakhs. The E.M.D. is to be deposited by way of Demand Draft/Bankers Cheque/Pay Order in favour of 'Kandla Port Trust' drawn on any Nationalised/Scheduled Bank and payable at Gandhidham, on or before the due date and time of submission of the Bid. The EMD of the successful bidder will be refunded only after total upfront premium is paid to KPT by the bidder and after taking over the possession of the plot after execution of lease deed by the bidder. The E.M.D. shall be refunded to the unsuccessful bidders after finalization of the bids. EMD will not carry any interest.
If it is found that amount of EMD submitted by the bidders is less than the number of plots for which the bidder has quoted in the Price Bid, then the total bid will stand rejected and the rates quoted in the price bids of such offers will not be considered for any purpose and the EMD submitted by such parties will also be forfeited."
(12) It is apparent that Clause 4.9 denies of any interest on refund of EMD on twin eventualities i.e. - (a) after the possession of plot; and (b) to an unsuccessful bidder. It is the case of the petitioner that the interest on EMD can only be denied in view of the aforesaid provision in those cases in Page 16 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 which the final possession of plot has been taken over after the execution of lease deed and to a unsuccessful bidder. It was submitted that in case of the petitioner since such stage has not reached the interest cannot be denied and hence, the undertaking given by the petitioner in this regard cannot be pressed. In the considered opinion of this Court, the provisions of Clause 4.9 cannot be interpreted by assigning a negative concept, in wake of the fact that there is no clause introduced in the Tender documents which can suggest payment of interest on refund of EMD. In absence of such provision, merely because the aforementioned two scenarios have not taken place, the petitioner cannot be awarded interest on the EMD. The petitioner can claim interest only in case where the amount of EMD has been withheld with mala fide intention and withholding of such amount is tainted with extraneous considerations and even if the amount of EMD is withheld for such reasons, the writ petition claiming interest is not maintainable since such factors are required to be proved by leading evidence. The writ court cannot step into the shoes of investigating forum and undertake the exercise exploring such extraneous consideration or mala fide intention.
Page 17 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 (13) In case of Godavari Sugar Mills Limited (supra), the Apex Court in Paragraph No.5 of the judgemnt has incorporated two questions for consideration. The same refers to the maintainability of the writ petition for recovery of money and awarding of interest on the compensation of land as per statute. The Apex Court, after considering array of the judgments finally as enunciated thus:
"8...............
(i) Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers. (Vide Burmah Construction Co. V/s. State of Orissa, AIR 1962 SC 1320 : 1962 Supp (1) SCR 242.)
(ii) If a right has been infringed-whether a fundamental right or a statutory right-and the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed.
The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realised by the Government without the authority of law. (Vide State of M.P. V/s. Bhailal Bhai, AIR 1964 SC 1006.)
(iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money. (Vide Suganmal V/s. State of M.P.3) Page 18 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022
(iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment, etc. While a petition praying for mere issue of a writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes - collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition. (Vide Salonah Tea Co. Ltd. V/s. Supdt. of Taxes, (1988) 1 SCC 401 : 1988 SCC (Tax) 99 (2).)
(v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (Vide U.P. Pollution Control Board V/s. Kanoria Industrial Ltd.4)
(vi) Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. (Vide Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.9) We are therefore of the view that reliance upon Suganma was misplaced, to hold that the writ petition filed by the appellant was not maintainable.
Re: Question (ii)"
(14) All the aforementioned principles relate to the recovery of money. It is held that an Page 19 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 order of payment of money can be made in a writ proceedings in enforcement of statutory functions and High Court in such proceedings can give a consequential relief by ordering payment of money realized by the Government without authority of law. However, so far as the award of interest is concerned, the Apex Court has considered the statutory provisions of section 26 of the Maharastra Agriculture Lands (Ceiling on Holdings) Act, 1961, which provide for payment of three percent interest spreadover 20 years. The Apex Court, in Paragraph No.15, has held that after completion of the said period, the general equitable principles relating to interest will apply and the interest can be awarded at any reasonable interest. In the present case, there is no provision envisaged in the Tender documents of paying any interest on the EMD.
No statutory provisions are shown before this Court, which provide for payment of interest on the EMD. Thus, the principles prescribed by the Apex Court in the case of Godavari Sugar Mills Limited (supra) cannot come to the rescue of the petitioner. Similarly, in the case of Vishant Metal Re-Rerollers Private Limited (Supra), the Coordinate Bench of this Court was dealing with the EMD, which was forfeited though the respondent-Maritime Board did not provide any facility on the Page 20 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 plot in question. In the instant case, the EMD of the petitioner is neither forfeited nor it has been withheld without justification. The entire process, after finalization of bid, was subject to approval by the Central government for allotment of the plots. There was constant exchange of communications between the respondent-KPT and the Government of India. Appropriate advice was also sought by the respondent-KPT in this regard and ultimately in view of change in policy, the respondent-KPT decided to drop of the finalization of tenders. Vide instructions issued by the Ministry of Shipping on 08.08.2011, the entire process was kept in abeyance. Thus, it cannot be construed that the respondent-KPT had withheld the amount for extraneous consideration.
(15) Finally, as recorded hereinabove, it is not disputed that the amount of EMD has been kept in the current account of State Bank of India with 'NIL' accruing interest. The petitioner has also given an undertaking in the form of declaration dated 04.08.2011 wherein a specific statement has been made him to the effect that "I/We agree that the Earnest Money remitted hereunder will be withheld by the Port Trust without interest". Thus, the Page 21 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022 C/SCA/20494/2015 CAV JUDGMENT DATED: 04/08/2022 petitioner cannot claim interest on the amount of EMD in view of the undertaking. It is not open for the petitioner to say that such an undertaking was given under compulsion. The petitioner should have objected to such compulsion or in the alternative should have not participated in the tender process. Having given an undertaking and after participation in the tender process, the petitioner cannot take a volte face on his undertaking.
(16) The writ petitions are misconceived being sans merit, hence are dismissed. RULE discharged. There shall be no order as to costs.
(17) Registry to keep a copy of this judgment in the connected matter.
(A. S. SUPEHIA, J) *** Bhavesh-[PPS]* Page 22 of 22 Downloaded on : Thu Aug 04 21:52:13 IST 2022