Delhi District Court
) The Secretary vs Rmi Metals Pvt. Ltd on 7 April, 2008
1
IN THE COURT OF SH. N. K. SHARMA,
ADDITIONAL DISTRICT JUDGE, DELHI
RCA NO. :- 85/2005
UNION OF INDIA, THROUGH :-
1) The Secretary,
(Defence Production & Supplies),
Ministry of Defence, South Block,
New Delhi.
2) General Manager,
Ordinance Factory,
Ministry of Defence,
Government of India,
Murad Nagar - 201206
Distt. Ghaziabad (U. P.). ....... Appellants/
Defendants
Versus
RMI Metals Pvt. Ltd.
4-302, Ashish Complex LSC-I,
Shreshtha Vihar,
Delhi - 110092. ...... Respondent/
Plaintiff
DATE OF INSTITUTION OF APPEAL :- 22/12/2005
RESERVED FOR ORDER ON :- 19/03/2008
DATE OF DECISION :- 07/04/2008
APPEAL FROM THE JUDGMENT & DECREE DATED
10/11/2005 IN SUIT NO. 120/2003 PASSED BY
MS. RAVINDER BEDI, LD. CIVIL JUDGE, DELHI.
2
JUDGMENT :-
The appellants have filed this appeal against the Judgment dated 10/11/2005 in Suit No. 120/2003 passed by Ms. Ravinder Bedi, Ld. Civil Judge, Delhi whereby Suit for Recovery of Rs. 96,689/- on account of Rs. 75,000/- deposited as EMD, Rs. 10,689/- as interest & Rs. 11,000/- towards legal costs was decreed in favour of the respondent/ plaintiff and against the appellants/defendants.
2. The brief facts of the case, as emerged from Ld. Trial Court Record, are that respondent/ plaintiff made a Bid vide its letter dated 30/12/2002 against a tender floated by the defendant No. 2 in December, 2002 for supply of 4000 kg of FM Low Carbon Lumps (the Bid Product) and while making a Bid, the respondent/plaintiff committed a typographical error by wrongly mentioning the price of Bid product as Rs. 269/- per kg ex-works instead of Rs. 369/- ex-works.
3. It is further stated that respondent/plaintiff immediately vide its fax dated 04/01/2003 informed the defendants/appellants that rates mentioned in the Bid be read as Rs. 369/- per kg instead of Rs. 269/- per kg and that the date of opening of tender enquiries was 31/12/2002.
34. It is further stated that vide its fax dated 07/01/2003, appellants/defendants confirmed two major facts (i) respondent's/plaintiff's offer was under
consideration (ii) payment condition stipulated by respondent/plaintiff in Bid was unacceptable to appellants/defendants and vide the same fax appellants/defendants also required respondent/ plaintiff to either accept their normal condition of 100 % payment within 30/45 days and to submit company profile immediately.
5. It is further stated that respondent/plaintiff vide its letter dated 09/01/2003 denied this condition of the appellants/defendants and vide letter dated 06/02/2003 intimated and required the appellants/ defendants to refund the earnest money deposit (EMD) of Rs. 75,000/-, but instead of refunding the EMD, appellants/defendants vide its letter dated 16/04/2003 intimated about forfeiture of money of Rs. 75,000/-.
6. Written statement has been filed on behalf of the appellants/defendants, wherein they stated that the suit is not maintainable due to want of any cause of action and is bad for non-service of mandatory Notice under Section 80 of CPC.
47. They further stated that the date of opening of tender was 31/12/2002 and stipulated period under terms and conditions of tender enquiry was valid upto 30/01/2003.
8. They further stated that the rates submitted/offered were correct and an afterthought of enhancing the rates to Rs. 369/- per kg after opening of tender enquiry, which is a violation in terms and conditions of tender and further that the contention of change in rates should have been taken before opening of tender on 31/12/2002 at 02.30 P.M. when the tender opening process was done in the presence of respondent/plaintiff.
9. They further stated that respondent/ plaintiff was informed vide letter dated 16/04/2003 about forfeiture of EMD, but lateron for the sake of justice and having talks with higher authorities, excess amount of Rs. 21,200/- was refunded and the actual amount of Rs. 53,800/-, which was required to be deposited by the respondent/plaintiff, as per original quotation, was forfeited.
10. Replication has been filed by the respondent/plaintiff, wherein it has reiterated and reaffirmed all the facts as alleged in the plaint and denied all the facts, as contained in the 5 written statement.
11. On the basis of pleadings of the parties, Ld. Trial Court famed the following issues vide order dated 13/09/2004 :-
1. Whether the plaint discloses no cause of action against the defendant ? OPD.
2. Whether the suit is not maintainable for non-service of statutory Notice under Section 80 CPC ? OPD.
4. Whether plaintiff is entitled to the relief of refund, as prayed for ? OPP.
3. Whether plaintiff has concealed material facts before the court and has come with uncleaned hands ? OPD.
5. Whether the plaintiff is entitled to any interest, if so, from which period and at what rate ? OPP.
6. Relief.6
12. Respondent/plaintiff has examined Sh. Anil Kumar Malhotra, its Attorney as PW-1 to prove its case.
13. On the other hand, appellants/defendants have examined Sh. D. C. Aggarwal, Assistant Manager (Works) of Ordinance Factory as DW-1 in support of their case.
14. I have heard Ld. Counsels for the parties and perused the record.
15. Ld. Counsel for the appellants/defendants has assailed the judgment of Ld. Trial Court on the ground that Ld. Trial Court has not taken into consideration the violation of Clause-9 of the tender conditions. He further submitted that the tender document contained a clear stipulation that the Ttenderers should indicate the rates in both, figures and words, and in spite of this specific requirement, the respondent/plaintiff had only quoted the rates only in figures and not in words and further that the respondent/plaintiff had made a deliberate overpayment on account of the EMD to create a case of enhancement of rates, subsequently, by claiming typographical error.
16. On the other hand, Ld. Counsel for the respondent/plaintiff submitted that he has not resiled from Clause-9 of the terms and conditions of the tender 7 and further submitted that there was a typographical mistake of one character i.e. instead of 3 figure 2 has been mentioned and this fact was brought to the notice of the appellants/defendants vide fax dated 04/01/2003 and also refuted that the respondent/ plaintiff made deliberate overpayment on account of EMD for creating a case of enhancement of rates, subsequently, by claiming typographical error.
17. I have gone through the document i.e. Instructions to Tenderers Ex. PW1/2. For deciding the controversy between the parties, the relevant portions of Instructions to Tenderers Ex. PW1/2 are as follows :-
Clause 2 (i) :-
"The form of tender
(IAFZ-2120) is attached the
conditions or supply and
includes a Schedule (IAFZ-
2121/2121-A) on which you
should fill in your rates both in words and in figures........" Clause 6 :-
"The successful tenderer will be notified on IAFZ-2124 of acceptance of his tender in whole or in part. Till then no 8 tenderer has any right to assume that his tender has been accepted, in whole or in part and if any tenderer disregards this warning and makes any arrangement or incurs any expenditure in anticipation of receipt of notice of acceptance, he will have no claim for compensation".
Clause 9 :-
"The tenderer shall hold the offer open up to and including ......... it is understood that the tender documents have been sold/issued to the tenderer and the tenderer is being permitted to tender in consideration of the stipulation on his part that after submitting his tender he will not resile from his offer or modify the terms and conditions thereof. Should the tender fail to observe and 9 comply with the foregoing stipulation, the earnest money shall be forfeited to the Government without prejudice to any other rights of the Government under this contract and the law. The earnest money shall also be liable to be forfeited in full, if the tenderer fails to furnish security deposit by the due date. No interest will be payable on the amount of the earnest money in any case.
No cognizance will be taken of any communication relating to withdrawal revocation or amendment to the tender already submitted except when it is in the form of a letter duly signed by the tenderer, if the tenderer, is an individual, by all the partners of the firm of tenderers of their duly accredited attorney, if the tenderers are a partnership 10 firm and by a person having express authority in the case of a limited company."
18. As per Clause 2 of Instructions to Tenderers Ex. PW1/2, there was a condition to mention the amount in words and figures and as per version of the appellants/defendants, the respondent/plaintiff has mentioned the amount in figures and not in words and in that eventuality the appellants/defendants would have rejected the Bid by treating the same as ineligible, but the same has not been done by the appellants/defendants for the reasons best known to them.
19. Perusal of the record reveals that respondent/plaintiff vide fax dated 04/01/2003 informed the defendants/appellants that rates mentioned in the Bid be read as Rs. 369/- per kg instead of Rs. 269/- per kg and the appellants/ defendants vide their fax dated 07/01/2003 confirmed two major facts (i) respondent's/plaintiff's offer was under consideration (ii) payment condition stipulated by respondent/plaintiff in Bid was unacceptable to appellants/defendants and vide the same fax appellants/defendants also required respondent/ plaintiff to either accept their normal condition of 11 100 % payment within 30/45 days and to submit company profile immediately. This shows that by 07/01/2003, respondent's/plaintiff's tender was not accepted by the appellants/defendants.
20. Perusal of Ld. Trial Court's Record also reveals that the acceptance was not notified by the appellants/defendants as per Clause 6 of Instructions to Tenderers Ex. PW1/2 and this fact has also been admitted by their own witness DW-1 Sh. D. C. Aggarwal in his cross-examination when he categorically stated that "the acceptance was not notified by the defendants as per Clause 6 of Instructions to Tenderers Ex. PW1/2 since the plaintiff was already informed that the offer is under consideration and the negotiations were only for payment terms."
21. When there was no acceptance from the side of the appellants/defendants in that eventuality, there is no contract between the parties.
22. When there is no contract between the parties, the appellants/defendants cannot resort to Clause 9 of Instructions to Tenderers Ex. PW1/2 and cannot forfeit the earnest money deposit (EMD) of the respondent/plaintiff.
1223. In view of above discussions, I am of the opinion that Ld. Civil Judge, Delhi has rightly decreed the suit. I do not find any illegality and irregularity in the impugned judgment/decree, consequently, the appeal is dismissed.
No order as to costs. Trial Court Record be sent back alongwith an attested copy of this order.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN (N. K. SHARMA) COURT ON 07/04/2008 ADDL. DISTT. JUDGE : DELHI 13 RCA NO. :- 85/2005 07/04/2008 Present :- Proxy counsels for the parties.
Vide separate judgment announced today, the the appeal is dismissed.
No order as to costs. Ld. Trial Court Record be sent back alongwith an attested copy of this order.
Appeal file be consigned to Record Room.
(N. K. SHARMA) ADDL. DISTT. JUDGE : DELHI 07/04/2008