ORDER
1. Both the writ applications are between the same parties involving same question of law and, therefore, on consent of learned counsel appearing for the parties both the writ applications were taken together for hearing.
2. The petitioner is a Super Class Contractor. In W. P. (C) No 4780 of 2003 the case of the petitioner is that tenders were invited from registered A Class/Super Class Contractors for execution of eight numbers of canal works. Pursuant to such tender call notice, the petitioner purchased two numbers of tender papers in respect of two works out of eight which have given rise to both the writ applications. Both the tender papers were purchased for the following works:
(1) Excavation of Gondia Branch Canal from RD 5.070 to 5.580 km. of Rengali Irrigation Project.
(2) Excavation of Gondia Branch Canal from RD 5.790 to 6.30 km. of Rengali Irrigation Project.
The estimated cost in respect of first work had been assessed at Rs. 2,56,89,690/- and in respect of the second work it had been assessed at Rs. 2,59,96,505/-. The. petitioner in respect of the first work quoted Rs. 1,81,16,963/- and in respect of second work quoted Rs. 1,83,31,182/-. The offer of the petitioner having been found to be lowest in respect of the aforesaid two works, the same were accepted by the department and the petitioner was called upon to sign the agreements. The petitioner submitted the required documents for signing the agreements on the condition that Clause 1.2.2 of the De tailed Tender Call Notice (in short ‘DTCN’) for deposit of performance security should not be made applicable to his case. The ground on which such prayer was made is that the petitioner had established his capability to execute the work within the schedule time earlier and in the event he fails to perform the work, it is always open for the department to take penal action under Clause 9 of the conditions of F-2 con tract appended to the DTCN. The further ground of the petitioner is that the performance security as prescribed in the DTCN has a lock-in-period of minimum one year and maximum seven years. The performance security has also to be deposited in shape of NSC/KVP/POTD. The differential amount between the estimated cost and the rate quoted by the contractor if kept as performance security, huge amount of money shall get blocked affecting the work. The further case of the petitioner is that without looking into the aforesaid grievance of the petitioner, the department insisted upon to de posit the performance security in respect of both the works and when the petitioner failed to do so, the order in Annexure 9 was passed forfeiting the earnest money for non-execution of the agreement.
3. Shri J. M. Mohanty, the learned counsel appearing for the petitioner in both the writ applications submitted that while rejecting the prayer of the petitioner for dispensing with the performance security, the department should have taken into consideration the grounds raised by the petitioner. According to Shri Mohanty, without doing so, arbitrarily the impugned order in Annexure 9 in both the cases have been passed.
Counter-affidavits have been filed by the opposite parties stating therein that since the Clause 1.2.2 of the DTCN provides for furnishing performance security before execution of the agreements, the petitioner having agreed to such term while submitting his tenders cannot now say that such a condition be waived. According to the opposite parties, the said condition cannot be waived and the petitioner purposefully delayed the matter by writing letters indicating the reasons for waiving such condition knowing fully well that it can never be waived.
4. On consideration of the averments made in the respective writ applications as well as counters filed therein, the only point that comes for consideration before this Court is as to whether the petitioner can be asked to furnish the performance security or not. Clause 1.2.2 of the Detail Call Notice prescribes as follows :–
“1.2.2 PERFORMANCE SECURITY FOR UNBALANCED items :
The Contractor shall furnish performance security in shape of N.S.C./K.V.P./Post Office time deposit at the time of agreement equal to the amount which is differential cost between the amount put to tender and the less quoted amount by the Contractor in each item.”
5. It was contended by Shri Mohanty, the learned counsel appearing for the petitioner that the differential amount in respect of each item of work having not been intimated to the petitioner by the department, it was not open for the department to ask for furnishing performance security. We are unable to accept such Contention in view of the reasons that even if item wise differential amount is indicated, the total differential amount will be same. As found by the department admittedly in respect of the first work the estimated cost was Rs. 2,56,89,690/- and the petitioner had quoted Rs. 1,81,61,936/-. Therefore, the differential amount comes to Rs. 73,89,915/-. Even if such differential amount is calculated item wise, the ultimate figure of total differential amount would be same. Similar is .the case in respect of the second work.
6. We, therefore, do not find that there is any force in such contention of the learned counsel appearing for the petitioner. Moreover, the purpose of asking for performance security is that where a tender quoted price is less than the estimated cost, it is likely that the tenderer may leave the work half way. Therefore, performance security is kept from the tenderer to ensure that the said tenderer completes the work. Apart from the above, while submitting the tender papers, the petitioner was aware of such condition and having agreed to such a condition, the tenders were submitted. After acceptance of the tenders, the petitioner now cannot go back and say that the said condition is not applicable to him. We, therefore, do riot find any force in the contention of the learned counsel for the petitioner that the petitioner is not liable to deposit the performance security as directed by the opposite parties.
7. So far as the orders in Annexure 9 in both cases are concerned, the petitioner having failed to deposit the performance security and execute the agreements, as per terms of the Tender Call Notice, his earnest money deposit is liable to be forfeited and, therefore, we also do not find any illegality in the order in Annexure 9 which had been passed in terms of the DTCN.
8. In view of the reasons stated above, we do not find any merit in both the writ applications and the same stand dismissed.
Sujit Barman Roy, c.J.
I agree.