Gujarat High Court
Gujarat Secondary And Higher Secondary ... vs Mogal Dilawarbhai Kasambhai ... on 5 March, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/MCA/1107/2023 ORDER DATED: 05/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 1107 of 2023
In
R/SPECIAL CIVIL APPLICATION/24959/2022
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GUJARAT SECONDARY AND HIGHER SECONDARY EDUCATION
BOARD,
Versus
MOGAL DILAWARBHAI KASAMBHAI PROPRIETOR OF AMINA TRADERS
& ORS.
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Appearance:
MR AD OZA(515) for the Applicant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s) No. 1
MEHUL A SURATI(7870) for the Opponent(s) No. 2
MR VISHAL N SOLANKI(11628) for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 05/03/2026
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Meet Shah for learned advocate Mr. A.D.Oza for the applicant and learned advocate Mr. Vishal Solanki for opponent No.1.
2. This application is filed for contempt of undertaking filed by the respondent Page 1 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined before this Court in view of the order dated 02.05.2023 passed in Special Civil Application No. 24959/2022.
3. The Co-ordinate Bench of this Court [Coram:Hon'ble Ms. Justice Sangeeta K. Vishen and Hon'ble Ms. Justice Nisha M. Thakore] passed the following order on 05.03.2024:
"1. The applicant by way of captioned application, has alleged willful and deliberate disobedience of the order dated 02.05.2023 so also undertaking dated 03.05.2023 given by the opponent No.1 in the captioned writ petition. The auction was conducted by the applicant Board and the opponent No.3 was declared as successful bidder. Being Page 2 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined aggrieved that, the opponent No.1,preferred a writ petition being Special Civil Application No.24959 of 2022 seeking direction to the respondent to conduct re- auction.
2. During the pendency of the writ petition, it appears that the auction was conducted in the Court on 02.05.2023. The offer was made by the opponent to the tune of Rs. 2,52,00,000/-. Since it was the highest offer, that the order was passed. The Division Bench, was of the opinion that the petition is required to be considered and tender awarded in favour of the opponent No.3, was quashed and set aside. At the same time, the petitioner was directed to file an undertaking. This Court has, raised pointed query to the learned advocates appearing for Page 3 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined the petitioner and the respondents as to whether the parties are ready to go for the auction in the Court itself. Upon the readiness and willingness shown by the parties, the auction was conducted and the opponent No.1 was declared as a successful bidder. Apropos the order passed on 02.05.2023, that the opponent had filed an undertaking dated 03.05.2023 clearly agreeing that he shall not back out from the highest offer of Rs.2,52,00,000/- and that he is ready and willing to execute the agreement with the Board for the tender in question.
3. Pertinently, as per the direction contained in para 7 of the order, the opponent was to file an undertaking and a copy was to be supplied to the learned advocate appearing for the Board.Page 4 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined It was only if the undertaking was not filed that the offer accepting the tender in favour of the opponent No.3, was directed to be revived. Upon filing of the undertaking, the Board, was to grant a contract, followed by execution of the contract. Since the opponent had filed an undertaking, the revival, was out of question and the Board was to proceed further, granting the contract, which it did by addressing a letter dated 10.05.2023, requiring the opponent to execute the contract and deposit of the amount. Except filing an undertaking, the opponent neither executed the contract nor paid the amount. It is this lapse on the part of the opponent, which has led to the filing of the present application.Page 5 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined
4. From the series of the orders passed by this Court, it appear that the opponent, has taken the Court very lightly. Though apology has been tendered, stating that there is no willful and deliberate disobedience of the order passed by this Court, fact remains that pursuant to the order dated 02.05.2023 passed by this Court, undertaking has been filed, but the same, has not been adhered to.
5. Today also, Mr. A.B. Vyas, learned advocate is not present. Mr. Dilawarbhai Kasambhai Mogal, Proprietor of Amina Traders, is personally present and states that learned advocate appearing on his behalf, since was having fever, has left the Court premises. Request is made for time.
6. With a view to offering one Page 6 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined more opportunity, list the matter on 06.03.2024. If the learned advocate does not remain present on the next date, the Court shall proceed to pass appropriate order."
4. Thereafter, a detailed order was passed on 09.04.2024 which reads as under:
"1. Mr. Meet Shah, learned advocate appearing for the applicant, submitted that the respondent No.1 herein had filed the writ petition before this Court challenging the auction proceedings conducted by the Gujarat Secondary & Higher Secondary Board i.e. applicant herein (hereinafter referred to as 'the Board').
2. It is submitted that the said writ petition, was heard and the Page 7 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined auction proceedings, were conducted in the open Court. When the respondent herein, had shown his readiness and willingness to offer an amount of Rs.25,00,000/- initially and the last offer, which was finalised, was to the tune of Rs.02,50,00,000/-. Since the respondent No.3 therein did not raise its offer, respondent herein, was declared as successful bidder. This Court, passed an order quashing and setting aside the tender in favour of the respondent No.3 therein, respondent herein was directed to file an undertaking about the offer made in the open Court.
3. It is submitted that apropos the order passed by this Court that the respondent No.1 herein, filed an undertaking inter alia Page 8 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined declaring that he shall abide by all the terms and conditions and the tender agreement that may be entered into with the Board for Rs.02,52,00,000/-. The respondent herein, has also declared that he shall not back out from the highest offer of Rs.02,52,00,000/- and that he is ready and willing to execute the agreement with the Board.
4. It is submitted that despite the solemn undertaking given before this Court the respondent has not adhered to the said undertaking and therefore, has committed breach of the declaration filed before this Court.
5. It is further submitted that since the respondent backed out Page 9 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined from the undertaking that the Board, could not undertake further auction proceedings and has suffered a loss of Rs.96,42,000/-. It is submitted that clearly, the respondent, has committed a breach and therefore, the respondent; be punished. It is next submitted that though the reply has been filed but there is not a semblance of any remorse about backing out of the undertaking. The tone and the tenor of the reply filed, is as if the respondent is questioning the conduct of the Board without realising that it is the respondent who has filed an undertaking and has backed out. During the pendency of the proceedings the respondent has filed further affidavit tendering unconditional apology and also assurance to this Court that the Page 10 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined respondent, shall not question the decision of the Board for re- tendering the work in question. It has also been declared that in the event of finalising the tender in favour of successful bidder after re-tendering the respondent shall not question the same before any Court. It is submitted that the apology which is tendered, is a paper apology and the same, shall not be accepted in view of the decision of the Apex Court in the case of Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor reported in AIR 2023 SC 4390 :
2023(3) GLH 687.
6. The Apex Court, has come heavily upon the party who files an undertaking and does not adhere to the same. The Apex Court has taken a serious note of Page 11 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined such non-adherence of the undertaking and it has been observed that the apology tendered should not be accepted as a matter of course and the Court is not bound to accept the same. Apology may be unconditional, unqualified and bona fide, still if the conduct is serious which has caused damage to the dignity of the institution, the same need not be accepted. It has also been held and observed that there ought not to be a tendency by Courts, to show any compassion when disobedience of an undertaking was with impunity and with total consciousness. It is submitted that the undertaking, was filed by the respondent with consciousness and having filed the undertaking, the respondent ought not to have backed out.Page 12 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined Having done so the respondent, has shown utmost disobedience to the order passed by this Court. It is therefore urged that necessary orders be passed against the respondent.
7. On the other hand, Mr.A.B. Vyas, learned advocate appearing for the respondent, has submitted that the apology has been tendered. It is submitted that owing to paucity of time the respondent, could not take appropriate decision and hence, the undertaking was filed. The respondent, is short of funds and is unable to adhere to the undertaking. It is submitted that once again the respondent tenders unconditional apology. It is also declared before this Court that the respondent shall not question the decision of the Board of re- Page 13 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined tendering and shall also not question the same before any Court of law.
8. It is further submitted that the stand taken by the Board that it has incurred huge expenses towards rent is also not correct, for, nothing has been placed on record to substantiate that the Board, has to undertake the said expenses.
9. Heard learned advocates appearing for the respective parties.
10. It is not in dispute that the order was passed by this Court on 02nd May, 2023. The tender issued in favour of respondent No.3 therein, was quashed and set aside, owing to the auction which undertook in the open Court. The Page 14 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined respondent herein had quoted the offer to the tune of Rs.02,52,00,000/-. The respondent was also directed to file an undertaking which, was accordingly given before this Court on 03rd May, 2023. The said undertaking reads thus, "UNDERTAKING ON BEHALF OF THE PETITIONER ON AFFIDAVIT I, Mogal Dilawarbhai Kasambhai Proprietor of Amina Traders, Aged: 60 Years, having the office address at 224, Gulshan- E-Naeem, Nr. Khurshid Park, Sarkhej Road, Ahmedabad the petitioner herein, do hereby solemnly affirm and state on oath as under:-
1. I say that I am filing this undertaking pursuant to the order passed by this Hon'ble Page 15 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined Court on 02.05.2023 in the captioned writ Petition.
2. I am filing this undertaking to state on oath that pursuant to the auction held by this Hon'ble Court in the open court on 02.05.2023 in the captioned writ petition, I had submitted my bid of Rs. 2,52,00,000/-(Two Crores Fifty two Lakhs) for the tender in question published by the respondent no 1 board. I state that my bid of Rs.
2,52,00,000/-(Two Crores Fifty two Lakhs) is declared to be the highest bid in auction held by this Hon'ble Court in the open court.
3. I state and submit, I shall abide by the all the tender terms and conditions and the tender agreement that may be Page 16 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined entered into with the respondent no 1-board for Rs. 2,52,00,000/-(Two Crores Fifty two Lakhs).
4. I further state and declare on affidavit by way of this undertaking that I shall not back out from my highest offer of Rs. 2,52,00,000/- (Two Crores Fifty two Lakhs) in question and I am ready and willing to execute the agreement with the Gujarat Secondary & Higher Secondary Education Board for the tender in question for my highest bid of Rs. 2,52,00,000/-(Two Crores Fifty two Lakhs)."
11. Para-3 clearly states that the respondent shall abide by all the terms and conditions and the Page 17 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined tender agreement that may be entered into with the respondent Board for Rs.02,52,00,000/-. The respondent, has also declared on oath that he shall not back out from the highest offer of Rs.02,52,00,000/-. Willingness was expressed to execute the agreement for the tender in question.
12. Though the respondent has submitted an undertaking, he did not adhere to the same. In the prima facie opinion of this Court, the solemn assurance extended before the Court has been breached. Though reply dated 06th November, 2023 has been filed tendering apology, but the same is mere explanation towards non-adherence of the undertaking.
During the pendency, various
orders were passed and
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NEUTRAL CITATION
C/MCA/1107/2023 ORDER DATED: 05/03/2026
undefined
ultimately, on 27th March, 2024 this Court required the respondent herein to file a clear-cut affidavit which, has now been filed. The respondent, has tendered unconditional apology and has also declared before this Court that he shall not question the decision of the Board of re-tendering in the event of finalisng the same. The respondent herein has also declared before this Court that he shall not question the same before any Court on the ground of he having been declared successful bidder.
13. At this stage, the judgment of the Apex Court in the case of Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor (supra), would be worth referring to. The Apex Court, in para-116 Page 19 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined while summarising the final conclusion, has pointed out thus, "(i) We hold that an assurance in the form of an undertaking given by a counsel / advocate on behalf of his client to the court; the wilful breach or disobedience of the same would amount to "civil contempt" as defined under Section 3(b) of the Act 1971.
(ii) There exists a distinction between an undertaking given to a party to the lis and the undertaking given to a court. The undertaking given to a court attracts the provisions of the Act 1971 whereas an undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the Act 1971. In the facts of the present case, we hold that the undertaking was Page 20 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined given to the High Court and the breach or disobedience would definitely attract the provisions of the Act 1971.
(iii) Although the transfer of the suit property pendente lite may not be termed as void ab initio yet when the court is looking into such transfers in contempt proceedings the court can definitely declare such transactions to be void in order to maintain the majesty of law. Apart from punishing the contemnor, for his contumacious conduct, the majesty of law may demand that appropriate directions be issued by the court so that any advantage secured as a result of such contumacious conduct is completely nullified. This may include issue of directions either for reversal of Page 21 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined the transactions by declaring such transactions to be void or passing appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or any one claiming under him.
(iv) The beneficiaries of any contumacious transaction have no right or locus to be heard in the contempt proceedings on the ground that they are bona fide purchasers of the property for value without notice and therefore, are necessary parties. Contempt is between the court and the contemnor and no third party can involve itself into the same. Page 22 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined
(v) The apology tendered should not be accepted as a matter of course and the court is not bound to accept the same. The apology may be unconditional, unqualified and bona fide, still if the conduct is serious, which has caused damage to the dignity of the institution, the same should not be accepted. There ought not to be a tendency by courts, to show compassion when disobedience of an undertaking or an order is with impunity and with total consciousness."
14. Under the circumstances and considering the facts of the case this Court, is of the prima facie opinion that the respondent, has committed a breach of the undertaking and therefore, let the respondent, explain as to why charges shall not be formulated against him under the provisions Page 23 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined of the Contempt of Courts Act, 1971.
15. List the matter on 25th April,2024."
5. It appears that the respondent was habitual in not remaining present before the Court, as earlier also, this Court had to issue bailable warrant in the sum of Rs. 10,000/- by order dated 12.10.2023.
6. It appears that on 25.06.2024, when the respondent was present before the Court, it was conveyed through the advocate appearing on his behalf that he had the intention to make good the damage suffered by the applicant on account of unreasonable stand taken in Page 24 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined not making the payment as per the undertaking given to the Court. An undertaking filed on 29.06.2024 reads as under:
"1. I state that I have gone through the order dated 25.06.2024 passed by this Hon'ble Court in captioned contempt application.
2. I am filing this affidavit cum undertaking pursuant to the order passed by this Hon'ble Court on 25.06.2024.
I state that I am willing to pay reasonable expenditure suffered by the applicant Board since I am not in position to comply with the order passed by this Hon'ble for which contempt is filed.
3. I state that though the exact amount of expenditure suffered by the board has not come on record, however, I state that reasonable amount of expenditure suffered by the Board, I am willing to bear and showing my readiness to pay the Board."Page 25 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined
7. Thereafter, again on 02.07.2024, the respondent did not remain present and therefore, the matter was adjourned to 05.07.2024. On 05.07.2024, following order was passed:
"Pursuant to the order dated 02.07.2024, respondent No.1-Mogal Dilawarbhai Kasambhai is personally present and has reiterated his stand in the affidavit dated 29.06.2024, where he has stated on affidavit that he is willing to pay reasonable expenditure which is suffered by the applicant-board. Considering the willingness shown by respondent-Mogal Dilawarbhai Kasambhai, the Court deems it fit to adjourn the matter to 02.08.2024, by which the respondent-Mogal Dilawarbhai Kasambhai shall deposit an amount of Rs.5,00,000/- before the next date of hearing with the Registry of this Court to show his bonafide."Page 26 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
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8. Accordingly, Rs. 5 Lakh was deposited by the respondent with the Registrar of this Court on 30.07.2024. Thereafter, on 02.08.2024, the respondent No.1 again showed his willingness to deposit a further sum of Rs. 5 lakh on or before 02.09.2024, which was deposited on 30.08.2024.
9. The respondent again, during the course of hearing on 07.10.2024, submitted through his advocate that a further sum of Rs. 5 Lakh shall be deposited on or before 15.10.2024, which came to be deposited on 10.10.2024. Thus, the respondent has, in all, deposited Rs. 15 Lakh over a period of time to show his bona fide that he was willing to make good the damages suffered by Page 27 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined the applicant on account of the unreasonable stand taken by him for not making payment as per the undertaking given to the Court.
10. Thereafter, the matter proceeded further, and the respondent took a "U" turn by making a submission that as the applicant-Board insisted for pro-rata increase of EMD and security deposit commensurate with bid amount of Rs. 2,52,00,000/- agreed by the respondent, which was not stipulated in the bid documents, therefore, the respondent was unable to abide by the undertaking.
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11. This Court [Coram:Hon'ble Mr. Justice A.S.Supehia and Hon'ble Ms. Justice Gita Gopi] therefore, passed the following order on 17.02.2025:
"1. The affidavit dated 20.01.2025 tendered by learned advocate Mr. Solanki is ordered to be taken on record.
2. Despite our repeated requests made to learned advocate Mr. Oza to explain as to how the amount of security deposit of Rs.14,70,000/- is determined vide communication dated 10.05.2023, however, learned advocate Mr. Oza is unable to satisfy the same.
3. Learned advocate Mr. Vishal N. Solanki for the opponent No.2 has submitted that the opponent has already paid an amount of Rs.1,43,000/- as EMD to fulfill the requirement of condition No.2 of the concerned Board, but Rs.7,56,000/- was demanded by the concerned Board after the auction of this Court instead of Rs.3,50,000/-. It is also submitted that an amount of Rs.14,70,000/-was also demanded.Page 29 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined It is, thus, submitted that since the opponent-Board itself is not abiding by the conditions of EMD, the opponent was unable to fulfill his undertaking dated 03.05.2023, which was agreed for.
4. Learned advocate Mr. Oza, at this stage, requests for some time since for the first time, such stand is taken by the opponent and he would like to file further affidavit to the rejoinder filed by the opponent today. On the request of learned advocate Mr. Oza, the matter is ordered to be listed on 07.04.2025."
12. The applicant-Board, in compliance of the aforesaid order, has filed an additional affidavit in form of a rejoinder making it clear that there is no illegal demand of Rs. 14,70,000/- and Rs. 7,50,000/- qua security deposit and EMD was made by the applicant-Board but the same was made in view of the Page 30 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined bid amount agreed by the respondent of Rs. 2,52,00,000/- instead of the total estimated tender amount of Rs. 57,40,000/- of which stipulated EMD was Rs. 1,43,000/- and as per the Resolution of the Board Finance Department, Rs. 3,50,000/- was stipulated as security deposit.
13. It was therefore, explained in the affidavit-in-rejoinder that there is no illegal demand as claimed by the Board.
14. Learned advocate Mr. Vishal Solanki for the respondent No.1, invited attention of the Court to the tender conditions to point out that an EMD of Rs. 1,43,000/- was stipulated in the Scope of Work (page 49 to 54) and that Page 31 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined Rs.3,50,000/- was stipulated as security deposit and therefore, the applicant-Board could not have asked for any further amount by communication dated 10.05.2023. It was further submitted that after the order was passed by the Court, an undertaking was filed by the respondent on 03.05.2023. 14.1 It was therefore, submitted that in view of the breach of the tender conditions by the applicant- Board by demanding more EMD and security deposit, the undertaking filed by the respondent was not abided by and the respondent cannot be said to have committed any contempt of the Court for not abiding by such undertaking. Page 32 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined 14.2 It was further submitted that this application is not tenable and, on the contrary, the applicant- Board is liable for contempt as the condition stipulated in the tender document has been violated by the Applicant-Board and not by the respondent herein.
14.3 Learned advocate Mr. Solanki also referred to the Condition No. 12 (page 51) which stipulates that an agreement on stamp paper of Rs. 300/- is required to be executed after making security deposit by the successful bidder otherwise, the security deposit shall be confiscated. It was therefore, submitted that the respondent has already deposited Rs. 1,43,000/- of EMD Page 33 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined and Rs. 3,50,000/- as Security Deposit and therefore, no other amount could have been demanded and the applicant- Board is required to refund the Security Deposit of Rs. 3,50,000/- and Rs. 1,43,000/- and outstanding of Rs. 2,94,000/- with bank interest together with Rs. 15 Lakh deposited before this Court, as stated in the further affidavit filed on behalf of the respondent.
15. Having heard learned advocates for the respective parties and considering the facts of the case as well as the detailed order dated 09.04.2024 passed by the Co-ordinate Bench, we are not reiterating the facts again, as the Page 34 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined same have already been exhaustively stated in the said order.
16. It appears from the record that after passing of the order dated 09.04.2024, the respondent-contemnor has taken two different stands in view of the appearance of two different advocates engaged by him. When, learned advocate Mr. A.B.Vyas was representing the respondent, the Co-ordinate Bench has passed the orders in the months of July and August 2024 on the basis of the submissions made on behalf of the respondent to make good the damages suffered by the applicant for not abiding by the undertaking before the Court and accordingly, an amount of Rs. 15 Lakh is deposited. Thereafter, upon Page 35 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined appearance of the learned advocate Mr. Vishal Solanki on behalf of the respondent, an altogether new stand was alleging breach of the tender conditions by the applicant-Board. It was vehemently submitted that the conditions stipulated in the tender have been complied with by the respondent and as the applicant-Board insisted upon enhanced amount of EMD and Security deposit, the undertaking given by the respondent is not binding and is not required to be abided by. It is therefore, contended that there is no contempt, as alleged by the applicant-Board.
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NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined
17. On perusal of the undertaking as well as the clauses thereof, it is apparent that the respondent has stated in Para 3 of the undertaking that he shall abide by all the tender terms and conditions and the tender agreement that must be entered into with the respondent No.1-Board for Rs. 2,52,00,000/-. Thus, when this Court conducted the open auction, the respondent-contemnor was aware of his liability to pay Rs. 2,52,00,000/- to the applicant-Board and accordingly, the undertaking was filed on 03.05.2023. The respondent, therefore, has taken this Court for a ride by undertaking to pay the amount of Rs. 2,52,00,000/- which undertaking was Page 37 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined not adhered to and accordingly, a submission was made in the Year 2024 to make good the damages suffered by the applicant-Board.
18. It also appears that thereafter, a stand has been taken by the-respondent contemnor that as the applicant-Board asked for the proportionate increase in EMD and the security deposit commensurate with the agreed amount of Rs. 2,52,00,000/-, as agreed by the contemnor, the original tender terms and conditions which were based upon the estimated tender amount of Rs. 57,47,000/- stand altered and therefore, the respondent is not required to abide by the undertaking. Page 38 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026
NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined Thus, the entire basis of the defense is changed by the respondent-contemnor which is nothing but a further breach of undertaking filed by the respondent- contemnor as once the respondent has considered and submitted before this Court that he was ready to make good the damages suffered by the applicant- Board for not abiding the undertaking tendered before this Court and when the Court has shown the leniency in considering such request, an amount of Rs. 15 Lakh was also deposited and thereafter, now the stand is taken to refund the said amount as well as the security deposit and EMD along with dues outstanding dues of the previous tender of Rs. 2,94,000/-, which Page 39 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined according to the respondent-contemnor. remained unpaid. We are therefore, of the opinion that the respondent is in contempt of this Court for not abiding by the undertaking. However, as this Court has once shown leniency to the respondent for the submissions made before this Court to make good the damages suffered by the applicant- Board, we called upon the learned advocate Mr. Meet Shah for the respondent-Board to point out what damages have been suffered. Learned advocate Mr. Shah referred to the further affidavit filed on behalf of the applicant-Board to point out that the applicant-Board has suffered a total expenditure of more than Rs. 97 Page 40 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined Lakhs over a period time. Referring to Forms 22 to 25, he submitted that after this Court passed the order dated 09.04.2024, the applicant-Board issued a fresh tender. On a query put by the Court to the applicant-Board as to whether there was any embargo on issuing fresh tender after the respondent-contemnor had refused to abide by the highest bid to which he had agreed to before this Court, learned advocate Mr. Shah could not say anything on this count.
19. Be that as it may, by framing the charge and initiating contempt proceedings against respondent is required , however, as the respondent Page 41 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026 NEUTRAL CITATION C/MCA/1107/2023 ORDER DATED: 05/03/2026 undefined has already deposited Rs. 15 Lakhs to show his bona fides in the making good the damages suffered by the applicant- Board, we rest the case by directing the Registry to pay amount of Rs. 15 Lakhs deposited by the respondent- contemnor to the applicant-Board towards the damages suffered by it for non-compliance of the undertaking filed by the respondent. We further order to restrain the respondent from taking such action in future which will be viewed very seriously by this Court. The Contempt Application is accordingly disposed of.
(BHARGAV D. KARIA, J) (L. S. PIRZADA, J) JYOTI V. JANI Page 42 of 42 Uploaded by JYOTI V. JANI(HC00213) on Wed Mar 18 2026 Downloaded on : Fri Mar 20 22:28:38 IST 2026