Calcutta High Court
Pankaj Kumar Agarwal vs Commissiner Of Customs (Preventive) ... on 4 February, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
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APO No. 2 of 2011
W.P.No.561 of 2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
PANKAJ KUMAR AGARWAL .. Appellant
Versus
COMMISSINER OF CUSTOMS (PREVENTIVE) WEST BENGAL &
ANOTHER
.. Respondents
BEFORE:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE The Hon'ble JUSTICE SHUKLA KABIR (SINHA) Date : 4th February, 2011.
The Court : This appeal is directed against an order passed by the Trial Court on 6th August, 2010 whereby the Trial Court directed that the respondents are to refund 50% of the earnest money deposited by the appellant. The facts of the case briefly are as follows.
The respondents published an auction notice for disposal of, inter alia, 42036 Kg.(approximately) of metal scraps. The terms and conditions of the said auction notice is reproduced hereinbelow: 2
"5. Successful tenderers will be required to deposit the balance amount plus other government dues, if any, within a period of 10 days from the date of finalization of the tender, failing which the earnest money deposit automatically will stands forfeited, without any further reference to the tenderers;
7. Sealed tenders shall be opened by the members of Joint Pricing Committee and in presence of the tenderers at 4 P.M. on 14.3.2008 in the chamber of Addl. Commissioner of Customs(Prev.), CC, Kolkata.
8. The department reserves the right to accept or reject any tender without assigning any reasons whatsoever."
On 14th August, 2008 the appellant offered to purchase the total quantity of metal scraps put up on auction at the rate of 2.27 per Kg. and duly deposited two pay orders, one for a sum of Rs.5,00,000/- and the other for a sum of Rs.3,00,000/- towards earnest money. The said letter of the appellant also contained a condition that if the price of the appellant is highest and accepted by the respondent, the respondent should give three instalments to deposit the balance amount. The tender was considered and the offer of the appellant was found to be the highest and thereafter the appellant was directed to 3 deposit the balance amount of Rs.82,66,505/- through demand draft. The said letter was followed by a reminder dated 26th March, 2008 calling upon the appellant to deposit the amount within 28th March, 2008. By a letter dated 28th March, 2008 the respondent forfeited the earnest money deposited by the appellant.
Mr. Kundalia, learned Advocate appearing for the appellant submitted that the offer which was given by his client was a conditional offer. It was the duty casted on the respondents either to accept the said offer with the condition or to reject the same and it was their duty to refund the amount which was deposited by the appellant. He further submitted that since there was no concluded contract between the parties, there is no question of giving effect to the terms of the contract by the said authority. He further submitted that the contract is nothing but a void contract and the conduct of the appellant shows that the appellant expressed his interest to perform his part of the obligation in terms of the contract. He further submitted that the authority has no right to forfeit the amount. In this connection, he relied upon two decisions reported in 1998(3) SCC 471 and 1996(6) SCC 342. He submitted that the contract is a bilateral transaction between two or more than two parties. Every 4 contract has to pass through several stages beginning with the stage of negotiation during which the parties discuss and negotiate proposals and counter proposals as also the consideration resulting acceptance of the proposal. The proposal when accepted gives rise to an agreement. It is at this stage that the agreement is reduced into writing and a formal document is executed on which parties affix their signatures or thumb impression so as to be bound by the terms of the agreement set out in that document. Such an agreement has to be lawful as defined in section 2(h) which provides that an agreement enforceable by law is a contract. Section 2(g) sets out that an agreement not enforceable by law is said to be void. He also submitted that the jurisdiction of the respondent authority to forfeit the amount did not arise at all. Hence, he submitted that the order so passed by the Trial Court should be set aside and 50% of the balance amount should be refunded.
Mr. Bharadwaj, learned Advocate appearing for the respondents submitted the order has already been given effect to and there is no question of any void contract in the facts of the given case. He further submitted that whether the contract was concluded or not that is to be determined by way of adducing evidence and the same cannot be 5 adjudicated by a writ court. He submitted that no order should be passed in this appeal since the order has already been given effect to.
After considering the respective submissions of the learned Advocates for the parties and considering the materials on record, we only direct the respondent authorities to deposit the said amount in a separate interest bearing fixed deposit account and we give liberty to the appellant to file a suit within a period of three weeks from date. Since the learned Advocate appearing for the appellant prays for more time to file the suit, we extend the time to file the suit within eight weeks from date.
After the said amount is deposited in an interest bearing fixed deposit account by the respondent authorities, the respondent authorities through their Advocate inform the Advocate of the appellants of the same with full particulars thereof. In default of depositing the said amount by the respondents within three weeks from date, the amount so withheld by the respondents to be refunded to the appellants forthwith.
In view of the order passed today, cross objection filed by the respondents is dismissed.
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With the above observations, the appeal and the application are disposed of.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings. Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PINAKI CHANDRA GHOSE, J.) (SHUKLA KABIR (SINHA), J.) km AR(CR)