Bombay High Court
Digvijay Enterprises Nashik Thr Its ... vs The State Of Maharashtra And Another on 7 July, 2021
Equivalent citations: AIRONLINE 2021 BOM 1840
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, R. N. Laddha
(1) 960-wp-5577-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5577 OF 2021
Digvijay Enterprises Nashik
Through its Proprietor
Shri. Sahebrao S/o Damu Shewale,
Age- 50 years, Occupation-Business,
Office/Resident of : Plot NO.A-18, Abhijeet Park,
D-1, Kamal Nagar, Kamatwade, Cidco, Nashik,
Tq. & Dist. Nashik. ..PETITIONER
VERSUS
1. The State of Maharashtra
Through Principal Secretary,
Urban Development Ministry, Mumbai - 32.
2. Nagar Panchayat Muktainagar,
Tq. Muktainagr, Dist. Jalgaon,
Through it's Chief Officer. ..RESPONDENTS
...
Mr. Bhausaheb S. Deshmukh, Advocate for the
Petitioner.
Mr. S. G. Karlekar, AGP for Respondent No.1.
Mr. M. M. Patil, Advocate for Respondent No.2.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 07th JULY, 2021.
ORAL JUDGMENT (Per: S. V. Gangapurwala):-
1. Rule. Rule made returnable forthwith. With the consent of parties matter is taken up for hearing at the admission stage.
2. The petitioner is assailing issuance of fresh tender notice, so also forfeiture of his Earnest Money Deposit (EMD).
3. The respondent no.2-Nagar Panchayat floated tender for solid waste collection and ::: Uploaded on - 08/07/2021 ::: Downloaded on - 09/07/2021 03:13:30 ::: (2) 960-wp-5577-2021 management. The petitioner was the lowest bidder. Subsequently, it appears that, repeated draft agreements were prepared. The petitioner was not in agreement with some terms. The respondent no.2 canceled the tender process. The General Body of respondent no.2 took a decision to forfeit EMD of the petitioner and to float fresh tender.
4. While issuing notice on 08.04.2021, we had observed that, we are not inclined to consider the case of the petitioner so far as fresh tender process is concerned and the petition was limited to the grievance of the petitioner qua forfeiture of EMD.
5. Mr. Deshmukh, learned counsel for the petitioner submits that respondent no.2 is deviating from the terms of tender every now and then. It was not possible for the petitioner to follow the terms and conditions alien to the tender documents. The learned counsel further submits that, in the original tender the petitioner was not supposed to bear the petrol and diesel charges. In the draft agreement submitted, respondent no.2 came out with a clause that the petitioner should bear the petrol and diesel charges.
6. It was also not agreed that the respondent no.2 will have right to impose penalty upon the petitioner. The respondent no.2 in the draft agreement also introduced clause of penalty.
::: Uploaded on - 08/07/2021 ::: Downloaded on - 09/07/2021 03:13:30 :::(3) 960-wp-5577-2021 7. The learned counsel submits that the
petitioner possesses his own closed vehicles for the collection of solid wastes. The respondent no.2 insisted that the vehicle of respondent no.2 only should be used for the said purpose. According to the learned counsel as the terms and conditions of the tender were not abided by respondent no.2, the petitioner did not execute the agreement in favour of respondent. The petitioner cannot be penalized for the same.
8. Mr. Patil, learned counsel for respondent no.2 submits that the petitioner did not remain present during the pre-bid meeting. The petitioner in its letter dated 13.01.2021 agreed to get the drainage cleaned and to transport the wastes through tractor. Now, when the draft agreement was forwarded to the petitioner, the petitioner took a somersault. It is not that, respondent no.2 was deviating from the terms of the tender. The petitioner was time and again asking for relaxation. The respondent no.2 took a sympathetic approach towards the petitioner and even relaxed the conditions of petrol and diesel charges to be borne by the petitioner, still the petitioner did not abide by the terms. Eventually, the General Body took a decision to forfeit EMD and to float the fresh tender.
9. We have considered the submissions canvassed by the learned counsel for the parties.
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10. The tender provided the following works to be performed by the tenderer:
v- dz- rif'ky nj izfr ekg
1 eqDrkbZ uxj 'kgjkrhy vksyk o lqdk dpjk ?kjks?kjh tkmu 4,15,080
nSuanhu BjysY;k fuf'pr osGsr ?kaVkxkMh}kjs vkokt nsmu ladyhr dj.ks o okgrqd dj.ks ;ke/;s izHkkxkrhy laiq.kZ ? kjs] fcfYMax] def'kZ;y dkWEIysDl bR;knhpk lekos'k vlsy o jLrs vkf.k ukys lQkbZrqu fu?kkysyk xkG o dpjk] fBdfBdk.kh lkBysyk dpjk rlsp jLR;kps cktqyk iMysyk gydk dpjk] >kMkaP;k Qka|k jLR;kP;k dMsyk iMysys Msczht] esysyh tukojs o brj loZ izdkjpk vksyk o lqdk dpjk b- lekos'k vlsy rlsp vkjksx; fujh{kd o eq[;kf/kdkjh lqporhy vls dkes-
2 eqDrkbZ uxj 'kgjkrhy m?kM;k xVkjh lkQ dj.ks o 3,66,000 xVkjhckgsj ?kk.k dk<.ks] Hkqehxr xVkjh lkQ dj.ks o vko';drk HkklY;kl xVkj m?kMhd#u ?kk.k dk<kus o can dj.ks] R;klkBh vko';d vlysY;k loZ mik;;kstuk dj.ks- 3 eqDrkbZ uxj 'kgjkrhy tarquk'kd Qokj.kh] /kqjG.kh] vcsfVax] 88740 eysjkWu vkWbZy fNMdko rlsp lkFk jksx izfrca/kkRed mik; ;kstuslkBh euq";cG iqjoBk dj.ks- 4 eqDrkbZ uxj 'kgjkrhy e`r tukojs o csokjl izsr mpyus o 29,580 foYgsokV yko.;klkBh euq";cG iqjoBk dj.ks-
11. The terms and conditions of the tender are required to be clear and unambiguous.
12. It appears that, after the tender of the petitioner was accepted, there was further deliberation between the petitioner and respondent no.2 and from time to time, the terms and conditions were sought to be imposed and/or relaxed. Three draft agreements containing some changes in the terms and conditions were drafted.
13. It appears that, parties were never ad idem about the terms and covenants of the tender.
::: Uploaded on - 08/07/2021 ::: Downloaded on - 09/07/2021 03:13:30 :::(5) 960-wp-5577-2021 The parties did not arrive at conclusion of the exact terms and conditions of the tender. In the first draft agreement, it was the condition put forth by respondent no.2 that the petitioner would bear the petrol and diesel charges for transportation. Upon representation, the said condition was relaxed in the next draft agreement. In the third draft agreement, the condition of the penalty was also imposed. There were changes made in the draft agreement from time to time.
14. It appears that, terms and conditions of the tender were not certain. If the terms and conditions of the tender are not certain or the meaning of which cannot be made certain, is to that extent void. Reference can be had to Section 29 of the Contract Act. If the parties are not ad idem, it cannot be said that consent is a free consent, as required under Section 13 of the Indian Contract Act.
15. It appears that, consistently and repeatedly draft agreements were prepared by respondent no.2 and presented to the petitioner. There were some modifications of the terms and conditions in each and every draft agreements.
16. In light of the above, it cannot be said that the petitioner is entirely at fault in not proceeding ahead in signing the draft agreement. The work order was not issued to the petitioner.
::: Uploaded on - 08/07/2021 ::: Downloaded on - 09/07/2021 03:13:30 :::(6) 960-wp-5577-2021 17. As the terms and conditions were not
finalized, it cannot be said that the concluded contract came into existence.
18. Considering the overall scenario of the matter, it would not be appropriate on the part of respondent no.2 to forfeit the EMD of Rs.1,13,000/- deposited by the petitioner.
19. In light of that, the impugned Resolution of the General Body to the extent of forfeiting the EMD is set aside.
20. The respondent no.2 shall refund EMD of Rs.1,13,000/- to the petitioner preferably within a period of six (06) weeks from today.
21. Rule accordingly made absolute in above terms. No costs.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/July-2021
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