Bombay High Court
M/S Aai Tuljabhawani Transport vs The Union Of India And Ors on 3 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 1001
Bench: K.K.Tated, R.I.Chagla
ia3797-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Trusha T.
Mohite CIVIL APPELLATE JURISDICTION
Digitally signed by
Trusha T. Mohite
Date: 2021.03.10
12:41:36 +0530
INTERIM APPLICATION NO.3797 OF 2020
IN
WRIT PETITION NO.11439 OF 2019
M/s.Aai Tuljabhawani Transport .. Applicant
IN THE MATTER BETWEEN
M/s.Aai Tuljabhawani Transport .. Petitioner
vs.
The Union of India and Ors. .. Respondents
.....
Mr.Vishvanath Patil a/w Ms.Kewal B. Ahiya for Applicant
Mr.S.S.Panchpor, A.G.P. for the State
Mr.Parag A. Vyas a/w Mr.Ashok Verma i/b Mr.A.A.Ansari for the
Respondent no.1
Mr.Hafeezur Rehman for the Respondent no.3
.....
CORAM: K.K.TATED &
R.I.CHAGLA, JJ.
DATED : MARCH 03, 2021 P.C. . Heard.
2. By this Interim Application, Applicant original Petitioner is seeking direction against Respondent no.2 and Mohite 1/23 ia3797-20.odt 3 to refund the Security Deposit of Rs.75,00,000/- (Rupees Seventy Five Lakhs Only) along with interest @ 18% p.a. from the date of termination of contract i.e. 03.09.2019 till realisation.
3. In the present proceeding, the Respondent Food Corporation of India had foated e-tender dated 25.06.2019 for Appointment of Handling & Transport Contractor for the Private Warehousing Scheme (PWS) Fursungi. In that tender, the Applicant participated in the e-tender foated by the Respondents along with other companies / frms. The Applicant was held eligible in the technical and fnancial bid and the Applicant being lowest bidder, the Respondent Food Corporation of India accepted the Applicant's offer. The Respondent was pleased to issue letter of acceptance dated 07.08.2019 to the Applicant. In the said letter of acceptance dated 07.08.2019, it was stated that they have to comply terms and conditions of the e-tender for Appointment of Handling & Transport Contractor for the Private Warehousing Scheme (PWS) Fursungi. As per the said terms and conditions, the Applicant had to deposit the amount of Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs Only) within a period of 15 days i.e. on or before 29.08.2019 or 50% within 15 working days of acceptance of his tender while the balance 50% may be paid by the Contractor by deducting at the rate of 10% from the admitted bills. As per the contention of the Respondent no.3, Applicant failed and neglected to comply the terms and conditions of the said tender. They failed to deposit the said amount of Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs Only) Mohite 2/23 ia3797-20.odt within stipulated time. Hence, they cancelled the allotment of the tender contract in favour of the Applicant. The termination order dated 03.09.2019 was issued by the Respondent stating that not only the contract is canceled with the Applicant but the Applicants are also debarred from participating in any future tenders of the Food Corporation of India for a period of 5 years.
4. Thereafter, Respondent no.3 foated fresh tender for the same work on 04.09.2019. In that tender, Respondent no.4 was declared as a successful bidder and same was allotted in favour of Respondent no.4 by letter dated 28.10.2019 and directed them to deposit the amount of Rs.1,50,00,000/- within a period of 15 days.
5. The Applicant in terms of clause XVIII of the tendered document fled an Appeal before the Grievance Redressal Committee against the order dated 03.09.2019 passed by Respondent no.2 terminating / cancelling the letter of acceptance dated 07.08.2019. The Appellate Authority by order dated 24.10.2019 disposed of the appeal holding that the action taken by the Food Corporation is correct.
6. Being aggrieved by the action taken by the Respondent Food Corporation of India, the Applicant fled the present petition challenging the order dated 03.09.2019 terminating the contract awarded to the Applicant, forfeiting security deposit and blacklisting to the Applicant for 5 years. Following are the prayers in the Writ Petition.
Mohite 3/23ia3797-20.odt "A. To quash the order dated 03.09.2019 (EXHIBIT-D) terminating contract awarded to the petitioner, forfeiting security deposit and blacklisting issued by the Assistant General Manager, Food Corporation of India, Regional Offce, Maharashtra, by issuing a writ of certiorari or any other writ, order or direction as the case may be;
B. To quash the order dated 24.10.2019 (EXHIBIT F) issued by the General Manager (S&C), Food Corporation of India, Regional Offce, Maharashtra, by issuing a writ of certiorari or any other writ, order or direction as the case may be;
C. To quash e-tender notice issued by the Food Corporation of India dated 04.09.2019 (EXHIBIT-G) for the appointment of handling and transport contractor for the Private Warehousing Scheme, Fursungi, by issuing a writ of certiorari or any other writ, order or direction as the case may be;
D. To quash the acceptance letter dated 28.10.2019 (EXHIBIT-H) issued by the respondent FCI to the respondent no.4, by issuing a writ of certiorari or any other writ, order or direction as the case may be;
E. To grant interim stay to the order dated 03.09.2019 (EXHIBIT-D) terminating contract awarded to the petitioner, forfeiting security deposit and blacklisting issued by the Assistant General Manager, Food Corporation of India, Regional Offce, Maharashtra, pending hearing and fnal disposal;
F. To grant interim injunction restraining the Mohite 4/23 ia3797-20.odt respondent no.3, its agents, subordinates and servants from awarding work order in favour of respondent n0.4 pursuant to the order dated 28.10.2019 issued by the respondent FCI to the respondent no.4 pending hearing and fnal disposal of the petition;
G. To grant interim stay to the acceptance letter dated 28.10.2019 (EXHIBIT-H) issued by the no.4, respondent FCI to the respondent pending hearing and fnal disposal of the petition;
H. In the alternative, to grant interim injunction restraining the respondent no.4 from executing the contract for Handling and Transport contractor for PWS, Fursungı pursuant to acceptance letter dated 28.10 2019 issued by respondent no.3, pending hearing and fnal disposal of the present petition;
I. To hold and declare that the newly inserted condition "experience of Rake Handling and Transportation" published in the tender notice 04.09.2019 (EXHIBIT-G) published by respondent no.3, is ultra vires Article 14 and 19(1) (g);
J. To grant any other relief as deemed ft in the peculiar circumstances of the present case."
7. Thereafter, this court by order dated 06.11.2019 (Coram: S.C.Dharmadhikari and R.I.Chagla, JJ.) admitted the Writ Petition staying the communication dated 03.09.2019 to the extent it debars the present Applicant from participating in any other tender of the Food Corporation of India for a period of fve years and also specifcally stated that the Food Corporation of India and the Mohite 5/23 ia3797-20.odt Respondent no.4 can carry out the contracted work. Thereafter, the Applicant addressed a letter dated 01.07.2020 to the Executive Director of Food Corporation of India requesting them to release the security deposit paid by the Applicant pursuant to the letter of acceptance dated 03.09.2019. The Respondent Corporation has not released the security deposit to the Applicant nor they replied to the letter dated 01.07.2020.
8. The Applicant fled the present interim application for direction to the Food Corporation to refund the security deposit of Rs.75,00,000/- with interest @ 18% p.a. Some of the important clauses of e-tender for Appointment of Handling & Transport Contractor for the Private Warehousing Scheme (PWS) Fursungi are as under:
IX Security Deposit:
(a) The successful Tenderer shall furnish
within ffteen working days of acceptance of his tender, a Security Deposit for the due, proper and complete discharge of all their obligations under the Contract. The Security Deposit will comprise of the total of the amounts specifed in following clauses (i) (ii) and (iii):
(i) a sum equivalent to 5% of the value of the Contract i.e. Rs. 1,50,00,000/-(Rupees One Crore Fifty Lakhs only) in the form of Demand Draft or Pay Order issued by a scheduled bank or through Electronic Clearing System(ECS)/ Other Mohite 6/23 ia3797-20.odt Electronic Means in favour of the General Manager, Food Corporation of India. The contractor at his option may deposit 50 (ffty) percent of this amount within ffteen working days of acceptance of his tender while the balance 50 (ffty) percent may be paid by the contractor by deductions at the rate of 10 (ten) per cent from the admitted bills. The Security Deposit shall not earn any interest.
(ii) another sum equivalent to 10% of the value of Contract, i.e. Rs. 3,00,00,000/- (Rupees Three Crore only) in the form of an irrevocable and unconditional Bank Guarantee issued by Commercial Bank notifed by RBI (excluding all Urban/Rural/ State Co-operative banks and Gramin Banks) in the format prescribed in Appendix-1V which shall be enforceable till six months after the expiry of contract period.
(iii) If applicable, an additional sum equivalent to 10% of the value of Contract ie. N.A. in addition to i & ii above), in terms of the undertaking provided by the Tenderer (without experience) for relaxation of eligibility conditions, in the form of an irrevocable and unconditional Bank Guarantee issued by Commercial Bank notifed by RBI (excluding all Urban/Rural/ State Co-operative banks and Gramin Banks) in the format prescribed in Appendix-V which shall be enforceable till six months after the expiry of contract period.Mohite 7/23
ia3797-20.odt
(b) In case of failure of tenderer to deposit the Bank Guarantee as stipulated in clause 7 (i) (b) &
(c) within 15 working days of acceptance of his tender, further extension of 15 working days can be given subject to levy of penalty @ 1% of the whole amount of the Security Deposit and another 15 working days with levy of penalty @ 2% on the whole amount of the Security Deposit by GM (R). However, there will be no relaxation allowed in respect of clause IX (a) (i).
(c) Upon satisfactory performance of the services and on completion of all the obligations by the contractor under the terms of contract and on submission of "No Due Certifcate" from the concerned authority designated under EPF and MP Act 1952 showing due and correct deposit in respect of the employees employed by or through him for the contract period and on obtaining a "No Demand Certifcate" from the assigned authority of FCI, the Security Deposit will refunded to the contractor subject to deductions, if any from the Security as may be necessary for recovering the claims of FCl against the contractor. The Food Corporation of India will not be liable for payment of any interest on the Security Deposit.
(d) The General Manager shall have the rights to forfeit the entire or part of the amount of security Mohite 8/23 ia3797-20.odt deposit lodged by the contractors or to appropriate the Security deposit or any part, thereof in or towards the satisfaction of any sum due to be claimed for any damages, losses charges, expenses or costs that may be suffered or incurred by the Corporation. The decision of GM (Region) in respect of such losses, damages, charges, costs or expenses shall be fnal and binding on the contractors.
(e) Whenever the Security Deposit falls short of the specifed amount, the Contractor shall make good the defcit so that the total amount of Security Deposit shall not at any time be less than specifed amount.
(f) In the event of the Tenderer failure, after the communication of acceptance of the tender by the corporation, to furnish the requisite Security Deposit by the due date including extension period, his contract shall summarily terminated besides forfeiture of the Earnest Money and the corporation shall proceed for appointment of another contractor without prejudice to any other rights and remedies of the Corporation under the contract and Law. The contractor will also be debarred from participating in any future tenders of the corporation for a period of fve years. After the completion of prescribed period of fve years, the party may be allowed to participate in the Mohite 9/23 ia3797-20.odt future tenders of FCI provided all the recoveries/dues have been effected by the corporation and there is no dispute pending with the contractor/party.
THE DETAILS FOR TRANSFERRING MONEY
THROUGH ELECTRONIC CLEARING SYSTEM
(ECS)/OTHER ELECTRONIC MEANS 1S AS UNDER:
The : FOOD CORPORATION OF INDIA
amount
be paid to
BANK : STATE BANK OF INDIA
(0051) Borivali (West), Mumbai
BRANCH : Agora Business Plaza, 1st & 2nd Floor, Opp. Borivali Flyover, Borivali (West), Mumbai 400092 IFS CODE : SBINO000551 A/C NO. : 10816217221 UTR NO. : __________________ (MANDATORY IF PAYMENT MADE THROUGH ELECTRONIC CLEARING SYSTEM (ECS/0THER ELECTRONIC MEANS X. Liability of Contractor for losses etc. suffered by Corporation:
(a) The contractor shall be liable for all costs, damages, demurrages, wharfage, forfeiture of wagon registration fees, charges and expenses suffered or incurred by the corporation due to the Mohite 10/23 ia3797-20.odt contractor's negligence and un-workman like performance of any services under this contract or breach of any terms thereof or his failure to carry out the work with a view to avoid incurrence of demurrage, etc. and for all damages or losses occasioned to the corporation due to any act whether negligent or otherwise of the contractor themselves or his employees. The decision of the GM (Maha.) regarding such failure of the contractor and his liability for the losses, etc.suffered by corporation, and the quantifcation of such losses shall be fnal and binding on the contractor.
b) The corporation shall be at liberty to reimburse themselves of any damages, losses, charges, costs or expenses suffered or incurred by it due to contractor's negligence and un-workmanlike performance of services under the contract or breach of any terms thereof. The total sum claimed shall be deducted from any sum then due or which at any time hereafter may become due to the contractor under this or any other contract with the corporation in the event of the sum, which may be due from the corporation as aforesaid being insuffcient the balance of the total sum claimed and recoverable from the contractors as aforesaid shall be deducted from the security deposit furnished by the contractor. Should this sum also be not suffcient to cover the full amount claimed by the Corporation, the contractor shall pay to the Mohite 11/23 ia3797-20.odt corporation on demand the remaining balance of the aforesaid sum claimed.
(c) In the event of delay on the part of the contractor in providing other services as mentioned in the MTF i.e labour, weighment machines, weights and any other services mentioned in the agreement, effciently and to the entire satisfaction of the GM (Region) or any offcer acting on his behalf, the General Manager shall without prejudice to other rights and remedies under this agreement, have a lawful right to levy Liquidated Damages from the contractor @ Rs.2,000/- per day or such lesser sum per day not exceeding 15% of the value of the contract during the operation period of the contract. The decision of the Corporation in regard to levy of above Liquidates Damages shall be fnal and binding on the parties.
(d) The Contractor shall be responsible for the safety of the goods from the time they are loaded on his trucks from Railway Goods shed or siding Godowns, until they have been unloaded from his trucks at godowns or at other trucks or vice-versa, so as to avoid loss or grain, etc. through the holes/crevices in the decks of the trucks. He shall deliver the number of bags and the weight of foodgrains, fertilizers/sugar/groundnut/any other food product etc. received by him and loaded on his trucks and shall be liable to make good the value of Mohite 12/23 ia3797-20.odt any loss, shortage or damage during transit. The General Manager will be the sold judge for determining after taking into consideration all the relevant circumstances, the quantum and value of loss and also as regards the liability of the contractor for such loss and the amount to be recovered from him. The decision of the General Manager in this regard shall be fnal and binding on the contractor.
(e) The Contractor shall provide suffcient number of tarpaulins for each truck to cover the bags of food grains etc. and take reasonable precautions to avoid wetting/damage/loss to food grains during the transport. In the event of defciency in service by contractor in not providing the tarpaulins for spreading on the decks of trucks or for covering the truck after loading. Liquidated Damages @ Rs.200/- per truck will be imposed by the concerned General Manager/Area Manager without prejudice to any other right or remedies under the contract and law.
XI Summary Termination:
(a) In the event of the contractor having been
adjudged insolvent or going into liquidation or winding up his business or making arrangements with his creditors or falling to observe any of the provisions of this contract or any of the terms and conditions governing the contract, the GM (Maha.) Mohite 13/23 ia3797-20.odt shall be at liberty to terminate the contract forthwith without prejudice to any other rights or remedies under the contract and law and to get the work done for the unexpired period of the contract at the risk and cost of the contractor and to claim from the contractor any resultant loss sustained or costs incurred by the corporation.
(b) The General Manager shall also have without prejudice to other rights and remedies, the right, in the event of breach by the contractor of any of the terms and conditions of the contract to terminate the contract forthwith and to get the work done for the unexpired period of the contract at the risk and cost of the contractor and/or forfeit the security deposit or any part thereof for the sum or sums due for any damages, losses, charges, expenses or costs that may be suffered or incurred by the Corporation due to the contractor's negligence or unwork-man like performance of any of the services under the contract.
(c) The contractor shall be responsible to supply adequate and suffcient labour, scales/trucks/carts/any other transport vehicle for loading/unloading, transport & carrying out any other services under the contract in accordance with the instructions issued by the General Manager or an offcer acting on his behalf.
If the contractor fails to supply the requisite Mohite 14/23 ia3797-20.odt number of labour scales and trucks/carts, the General Manager shall at his entire discretion without terminating the contract be at liberty to engage other labour, scales, trucks/carts, etc. at the risk and cost of the contractor, who shall be liable to make good to the Corporation all additional charges, expenses, cost or losses that the Corporation may incur or suffer thereby. The contractor shall not, however, be entitled to any gain resulting from entrustment of the work to another party. The decision of the General Manager shall be fnal and binding on the contractor."
9. The learned Counsel for the Applicant submits that actually the terminating order passed by the Respondent Corporation itself is bad in law. He submits that they deposited the security amount with the Respondent as per the terms and conditions of e-tender for Appointment of Handling & Transport Contractor for the Private Warehousing Scheme (PWS) Fursungi. He submits that not only that the contract awarded to the Respondent no.4 is also bad in law. He submits that as per the terms and conditions of the tender, Respondent Corporation have no right to detain and or not to refund the said amount of Rs.75,00,000/- to the Applicant. He submits that in the present proceeding, there was no concluding contract between the Applicant and the Respondent Corporation. He submits that the Respondent Corporation issued terminating order dated 03.09.2019 only on the ground that Mohite 15/23 ia3797-20.odt there was delay on the part of the Applicant to deposit security amount as per clause IX of the tender's terms and conditions. He submits that in any case, the Respondent Corporation thereafter re-issued the tender for the same work and that was allotted in favour of Respondent no.4. Therefore, there is no question of retaining the Applicant's security deposit of Rs.75,00,000/- in any case.
10. The learned Counsel for the Applicant submits that as per clause VII of the tendered document provisions regarding furnishing of the security deposit, sub clause (iv) of clause 7 provides for the consequences of non furnishing of the security deposit within the stipulated period including for forfeiture of the earnest money deposit and black listing. In similar way as per clause 9 of the tendered document, it provides for the circumstances in which the security deposit can be withheld. He submits that forfeiture of the security deposit can be done only in case the tenderer fails to fulfll his contractual obligation after execution of the contract between the parties. However, there is no provision in the tendered document enabling the Corporation to withhold the security deposit submitted by the tenderer after the due date. He submits that the Corporation however has withheld the amount of security of Rs.75,00,000/- submitted by the Applicant on 29.08.2019 without any authority of law. For that matter even the termination order dated 03.09.2019 does not speak of withholding and or security deposit submitted by the Applicant.
Mohite 16/23ia3797-20.odt
11. In support of his contention, the learned Counsel for the Applicant relies on the judgment of the Apex Court in the matter of Union of India vs. Rampur Distillery & Chemical Co. Ltd. Reported in AIR 1973 SC 1098. He submits that, the Apex Court in this matter held that, if there is no loss to the principal, then there is no question of forfeiting the security amount. He also relies on the Apex Court judgment in the matter of Maula Bax vs. Union of India reported in AIR 1970 SC 1955. He submits that, in this case also, the Apex Court held that if the contractor after starting the contract failed and neglected to comply the same, then only the principal can forfeit the security deposit. He relies on paragraph 4 of the said judgment which reads thus:
"4. Under the terms of the agreements the amounts deposited by the plaintiff as security for due performance of the contracts were to stand forfeited in case the plaintiff neglected to perform his part of the contract. The High Court observed that the deposits so made may be regarded as earnest money. But that view cannot be accepted. According to Earl Jowitt in "The Dictionary of English Law" at p. 689 : "Giving an earnest or earnest-money is a mode of signifying assent to a contract of sale or the like, by giving to the vendor a nominal sum (e.g. a shilling) as a token that the parties are in earnest or have made up their minds." As observed by the Judicial Committee in Kunwar Chiranjit Singh v. Har Swarup A.I.R.1926 P.C.1"
Earnest money is part of the purchase price when the transaction goes forward : it is forfeited Mohite 17/23 ia3797-20.odt when the transaction falls through, by reason of the fault or failure of the vendee.
In the present case the deposit was made not of a sum of money by the purchaser to be applied towards part payment of the price when the contract was completed and till then as evidencing an intention on the part of the purchaser to buy property or goods. Here the plaintiff had deposited the amounts claimed as security for guaranteeing due performance of the contracts. Such deposits cannot be regarded as earnest money."
12. On the basis of these submissions, the learned Counsel for the Applicant submits that this Hon'ble Court be pleased to direct the Respondent Corporation to refund the said amount of Rs.75,00,000/- with interest @ 18% p.a. He submits that if the application is not allowed, irreparable loss and injury will be caused to the Applicant.
13. On the other hand, the learned Counsel for the Respondent Food Corporation vehemently opposed the present application. He submits that the Application as it is fled by the Applicant is not maintainable. He submits that the contract is awarded to the Respondent no.4 because of failure on the part of Applicant to comply the terms and conditions of the tender contract. Even the Respondent no.4 to whom same is awarded after following due process of law, work is going on and same is not completed till today. He submits that the loss incurred by Respondent no.3 if any, can be determined only after completion of the said work.
Mohite 18/23ia3797-20.odt Therefore, the application fled by the Applicant is required to be dismissed with costs.
14. The learned Counsel for the Respondent no.3 submits that the contract is awarded in favour of Respondent no.4 at the risk and cost of the Applicant, because he failed and neglected to complete the same. He submits that actually the loss can be determined once the contract is completed by Respondent no.4, then only question comes about review of the said security amount. He submits that after adjusting the Food Corporation's loss if any, remaining amount can be refunded to the Applicant. Therefore, there is no question of entertaining the present interim application.
15. The learned Counsel for the Respondent no.3 submits that the action of withholding of the said security deposit has been initiated by Respondent no.3 on the termination of the contract awarded to the Applicant for non submission of security deposit within 15 days as per the terms and conditions of tender.
16. The learned Counsel for the Respondent no.3 in support of his contention relies on the judgment of the Apex Court in the matte of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and Another reported in (20160 16 SCC 818. Paragraph 11, 12, 15 and 16 reads thus:
"11. Recently, in Central Coalfelds Ltd. v. SLL- SML (Joint Venture Consortium) : 2016(8) SCALE Mohite 19/23 ia3797-20.odt 99 it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fde or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay : (1989) 3 SCC 293 it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India : (1994) 6 SCC 651 went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confrmed in Jagdish Mandal v. State of Orissa :
(2007) 14 SCC 517 as mentioned in Central Coalfelds.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its Mohite 20/23 ia3797-20.odt documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fde or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.
16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fde or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court."
17. On the basis of these submissions, the learned Counsel for the Respondent Corporation submits that there is no substance in the present Interim Application and same is required to be dismissed with costs.
18. We have heard both the sides at length. It is to be noted that in the present proceeding, the Applicant deposited a sum of Rs.75,00,000/- with the Respondent Corporation as per the terms and conditions of the e-tender. Whether there was delay on the part of the Applicant to Mohite 21/23 ia3797-20.odt deposit the said amount or not, that can be decided at the time of hearing of the Writ Petition itself. Bare reading of the termination letter dated 03.09.2019 issued by the Food Corporation of India shows that they cancelled the contract in favour of the Applicant only on the ground that there has been some delay on the part of Applicant to deposit entire security amount. In any case, bare reading of the clause IX of the said e-tender terms and conditions clearly shows that if the Contractor failed and neglected to complete the contract in time and or if there are some defects, then only the Respondent Corporation can forfeit the entire amount and or adjust the loss incurred by them. Bare reading of the terms and conditions of the e-tender clearly shows that main aim to take security deposit is to, adjust the Food Corporation's losses if any incurred by them because of default on the part of contractor in whose favour same is awarded. The Food Corporation by their letter dated 03.09.2019 terminated the contract which was in favour of Applicant and thereafter, issued fresh E-tender. In that fresh e-tender Respondent no.4 declared as successful bidder and the contract is awarded in their favour. Not only that, on same terms and conditions, the contract is issued in favour of Respondent no.4. That means Respondent no.4 must have deposited sum of Rs.1,50,00,000/- with the Respondent no.3 Food Corporation for performing the contract as per its terms and conditions.
19. In view of these facts, there is no question of allowing the Respondent Corporation to withhold the security deposit of the Applicant, as well as Respondent no.4. In any Mohite 22/23 ia3797-20.odt case, contract awarded to the Applicant stands cancelled by order dated 03.09.2019 and same was allotted to the Respondent no.4. Today, Respondent no.4 is doing the said contract by depositing sum of Rs.1,50,00,000/- by way of security. In view of these facts and the law declared by the Apex Court as stated hereinabove, Applicant is entitled refund of the said security deposit.
20. It is to be noted that there is no question of awarding any interest in favour of Applicant because there is no provision in the terms and conditions of the said contract to that effect. In view of these facts, following order is passed:
a. Respondent no.3 Food Corporation of India is directed to refund unconditionally the said sum of Rs.75,00,000/- to the Applicant which was deposited by them on or before 31.03.2021, failing which they have to pay interest @ 12% p.a. from the date of deposit till realisation.
b. Interim Application is partly allowed accordingly.
c. No order as to costs.
(R.I.CHAGLA, J.) (K.K.TATED, J.)
Mohite 23/23