BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25/08/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition (MD) No.6185 of 2008
M/s. Niranjan Industries,
Represented by its Proprietor,
S. Venkatesan,
Son of Subramania Pillai,
(Aged about 57 years),
Door No.27,
Lakshmipuram Third Street,
Madurai - 625 001. ...... Petitioner
Vs
1. The Tamil Nadu Electricity Board,
represented by its Chairman,
Chennai - 600 001.
2. The Chief Engineer / Distribution,
The Tamil Nadu Electricity Board,
Trichy Region, Thennur, Trichy - 17.
3. The Superintending Engineer,
The Tamil Nadu Electricity Board,
Thanjavur Electricity Distribution Circle,
Thanjavur. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the letter of the second respondent dated 28.06.2007 in
Lr.No.CE / D / TRY / RSO / Specn.No.57/06-07/D.467 / 2007 and quash the same and
consequentially directing the respondents 2 and 3 to refund the Earnest Money
Deposit of Rs.36,400/- (Rupees Thirty Six Thousand and Four Hundred only) for
Lot No.4 to the petitioner.
!For Petitioner ... Mr. J. Barathan
^For Respondents... No appearance
- - - - - - - -
:ORDER
The petitioner has approached this Court, with a prayer for issuance
of a Writ, in the nature of Certiorari, to quash the order of the second
respondent dated 28.06.2007, with consequential relief of Mandamus, directing
the respondent Nos.2 and 3, to refund the Earnest Money Deposit of Rs.36,400/-
(Rupees Thirty Six Thousand and Four Hundred only).
2. The Tamil Nadu Electricity Board floated a tender, for sale of
Ferrous and Non Ferrous Scrap items, condemned Transformers etc., which were
available at Central Stores / TEDC / Thanjavur, by a sealed Tender.
3. The petitioner participated for Lot Nos.3 and 4 of the tender,
and quoted a sum of Rs.46,52,000/- (Rupees Forty Six Lakhs and Fifty Two
Thousand only) for Lot No.3, and Rs.7,28,000/- (Rupees Seven Lakhs Twenty Eight
Thousand only) for Lot No.4, and deposited 5% of the amount i.e., Rs.2,70,000/-
(Rupees Two Lakhs and Seventy Thousand only) towards earnest money.
4. The tender of the petitioner was not accepted as other tenderers
quoted higher rate.
5. As per the terms of the tender, the Earnest Money Deposit was
liable to be refunded to the tenderer, in case, the tender was not accepted.
6. The respondents refunded the Earnest Money Deposit for Lot No.3,
but, the Earnest Money Deposit of Rs.36,400/- (Rupees Thirty Six Thousand and
Four Hundred only) for Lot No.4 has been ordered to be forfeited by way of the
impugned order.
7. The Impugned Order reads as under:-
"Tamil Nadu Electricity Board From To Er.S.Mohan, B.E., M/s. Niranjan Industries, Chief Engineer, T.S.No.216, 217, Distribution, New Ramnad Road, Tiruchy Region. Madurai - 625 009.
Lr.No.CE/D/TRY/RSO/Specn.No.57/06-07/D.467/2007 Dt. 28.06.2007
Dear Sir,
Sub:- CE/D/Ty’s Specifiction No.57/06-07 – Sale of Scrap
Materials at Central Stores / Thanjavur – E.M.D for
failed intimation of.
Ref:- (1) CE / Distn./Trichy Specn. 57/06-07.
* * * * * *
You are informed that the E.M.D. paid by you for Rs.36,400/- (Rupees
Thirty Six Thousand and Four Hundred only) for Lot No.4 against Chief Engineer /
Distribution / Trichy Specn.No.57/06-07 is forfeited as per Tender Specification
Clause 7(h).
Yours faithfully,
(G.M.RAVINDRANATHAN)
Executive Engineer / Elecl
For Chief Engineer Distn / Trichy”
8. Clause 7(h) of the Tender Document, which has been invoked to
forfeit the Earnest Money Deposit reads as under:-
“7(h) If there are any discrepancies in the rates quoted by the
tenderer, the rates advantageous to the Board only will be taken. No correction
in rates and in other terms and conditions will be admitted after submission of
tenders, and during opening of tenders and any time subsequently and if
requested so it will be assumed that the tenderer has backed out and EMD paid by
him will be forfeited to Board without further reference to him”.
9. It is not understood, how this clause could entitle forfeiture of
earnest money. That the amount was mentioned in words, which was to be taken as
tender amount and not the numerical.
10. Secondly, in order to see whether the numerical amount was right
or the amount mentioned in word, then the Earnest Money Deposit of 5% was to be
taken into consideration.
11. From any angle, it is seen that the offer of the petitioner was
for Rs.7,28,000/- (Rupees Seven Lakhs Twenty Eight Thousand only), which could
be taken to be the tender amount, which was rightly not accepted.
12. It is not a case where the Tamil Nadu Electricity Board accepted
the tender of the petitioner, by taking numerical amount to be the tender
amount, nor there is anything on record, to show that after acceptance of the
tender, the petitioner backed out from the contract, which could entitle the
respondent Board to forfeit the Earnest Money Deposit, by invoking clause 7(h)
of the tender document.
13. The impugned order, on the face of it, is arbitrary, and cannot
be sustained in law. The statutory authorities are bound to act fairly, and
cannot be allowed to harass the public, by withholding the EMD of a tenderer
whose tender was not accepted.
14. The impugned order does not show whether any request for
variation of the rate was made, to attract Clause 7(h) of the tender, which has
been invoked to forfeit the EMD.
15. This writ petition is allowed, the impugned order is set aside,
and writ in the nature of mandamus is issued, directing the respondent to return
the EMD amount of Rs.36,400/- (Rupees Thirty Six Thousand and Four Hundred only)
to the petitioner, within one month of the receipt of certified copy of this
order.
16. The petitioner shall also entitled to costs of this petition,
which is assessed at Rs.5,000/- (Rupees Five Thousand only).
Dpn/-
To
1. The Tamil Nadu Electricity Board,
represented by its Chairman,
Chennai – 600 001.
2. The Chief Engineer / Distribution,
The Tamil Nadu Electricity Board,
Trichy Region, Thennur, Trichy – 17.
3. The Superintending Engineer,
The Tamil Nadu Electricity Board,
Thanjavur Electricity Distribution Circle,
Thanjavur.