{"id":134764,"date":"2003-08-28T00:00:00","date_gmt":"2003-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-highway-authority-of-vs-ganga-enterprises-and-anr-on-28-august-2003"},"modified":"2016-06-14T02:26:57","modified_gmt":"2016-06-13T20:56:57","slug":"national-highway-authority-of-vs-ganga-enterprises-and-anr-on-28-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-highway-authority-of-vs-ganga-enterprises-and-anr-on-28-august-2003","title":{"rendered":"National Highway Authority Of … vs Ganga Enterprises And Anr on 28 August, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
National Highway Authority Of … vs Ganga Enterprises And Anr on 28 August, 2003<\/div>\n
Bench: S.N. Variava, H.K. Sema<\/div>\n
           CASE NO.:\nAppeal (civil)  4123 of 1999\n\nPETITIONER:\nNATIONAL HIGHWAY AUTHORITY OF INDIA\n\nRESPONDENT:\nGANGA ENTERPRISES AND ANR.\n\nDATE OF JUDGMENT: 28\/08\/2003\n\nBENCH:\nS.N. VARIAVA & H.K. SEMA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(3) SCR 114<\/p>\n
The following Order of the Court was delivered :\n<\/p>\n
This appeal is against the Judgement of the High Court of Delhi dated 30th
\nOctober, 1998.\n<\/p>\n
Briefly stated, the facts are as follows :\n<\/p>\n
The Appellant issued a tender notice calling for tenders for collection of
\ntoll on a portion of the highway running through Rajasthan. The last date
\nof submission of bid was 31st July, 1997. It was also provided that toll
\nplazas would be got completed by the authority and handed over to the
\nselected enterprise. There was two types of securities to be furnished, one
\nbeing a bid security in an amount of Rs. 50 lakhs (Rupees fifty lakhs
\nonly). The other was a performance security by way of a bank guarantee of
\nRs. 2 Crores (Rupees Two crores only). Clauses 7.1 to 8 deal with bid
\nsecurity. They read as under :-\n<\/p>\n
“7. Bid Security.\n<\/p>\n
7.1.  The bidder shall furnish, as a part of his bid, a Bid Security in an
\namount of Rs. 50 Lakhs (Rupees Fifty Lakhs only), or an equivalent amount
\nin a freely convertible currency. The Bid Security shall, at the bidder’s
\nopinion, be in the form of a Bank Draf, or Guarantee from a Bank located in
\nIndia. The Bank Guarantee shall   be in the Form of Bank Guarantee for Bid
\nSecurity included herein, valid of 150 days after the last date for
\nsubmission of the bid.\n<\/p>\n
7.2.  A bid not accompanied by an acceptable bid security shall be rejected
\nby National Highways Authority of India as non-responsive.\n<\/p>\n
7.3. The Bid Security of unsuccessful bidders will be returned by National
\nHighways Authority of India as promptly as possible but not later than 30
\ndays after the expiration of the period of bid validity.\n<\/p>\n
7.4.   The Bid Security of the successful bidder will be returned by
\nNational Highways Authority of India soon after the bidder has furnished
\nthe required Performance Security.\n<\/p>\n
7.5. The Bid Security may be forfeited :\n<\/p>\n
(a)     if the bidder withdraws his bid during the period of bid validity;
\nor<\/p>\n
(b)    in case the successful bidder fails within the specified period to<\/p>\n
(i)    furnish the required Performance Security; and (ii)   sign the
\nAgreement. 8.     Bid Validity.\n<\/p>\n
Bid shall remain valid for a period of 120 days after the last date of bid
\nsubmission.”\n<\/p>\n
Thus, it is to be seen that the bid security of Rs. 50 lakhs was not for
\nperformance of the contract. It was in essence an earnest to be given to
\nensure that the bidder did not withdraw his bid during the period of bid
\nvalidity and\/or that after acceptance the performance security is furnished
\nand the Agreement signed. The other terms pertained to the anticipated
\ncontract for collection of toll. It must be mentioned that the bid validity
\nperiod was 120 days.\n<\/p>\n
In terms of this tender document the Respondent gave his bid or offer. The
\noffer\/bid was in terms of the tender and thus it was also in two parts. The
\nfirst part being an offer that the bid would not be withdrawn during the
\nbid validity period and\/or that on acceptance the performance security
\nwould be furnished and the Agreement signed. The second part of the offer
\ndealt with the terms and conditions pertaining to the performance of the
\ncontract of collection of tolls, if the offer was accepted. As
\nearnest\/security for performance (of the first part of the offer) the
\nRespondent along with his bid furnished a bank guarantee in a sum of Rs. 50
\nLakhs as bid security. The bank guarantee furnished was a “on demand
\nguarantee” which specifically provided that the bank guarantee could be
\nenforced “on demand” if the bidder withdraws his bid during the period of
\nbid validity or if the bidder, having beeen notified of the acceptance of
\nhis bids, fails to furnish the performance security or fails to sign the
\nAgreement. The amount of the Bank? Guarantee was to be paid by the bank
\nwithout demur on the written demand merely stating that one of these
\nconditions had been fulfilled. The moment the bank guarantee was given and
\naccepted by the Appellants the first portion of the offer, regarding bid
\nsecurity, stood accepted. Of course, this did not mean that a competed
\ncontract in respect of the work of toll collection had come into existence.\n<\/p>\n
It is an admitted position that 120 days would have come to an end of 28th
\nNovember, 1997. In August the technical bids were opened. In September the
\nfinancial bids were opened, wherein it was found that the Respondent was
\nthe highest bidder.\n<\/p>\n
On 20th November, 1997 the Respondent withdrew his bid i.e. he withdrew his
\nbid before the expiry of 120 days. On 21st November, 1997, the Appellants
\naccepted the offer of the Respondent. However, as the Respondent had
\nwithdrawn his bid the performance guarantee was not furnished and the
\nAgreement was not entered into. The Appellants thus encashed the bank
\nguarantee for Rs. 50 lakhs.\n<\/p>\n
The Respondent then filed a Writ Petition in the High Court, for refund of
\nthe amount. On the pleadings before it, the High Court raised two questions
\nviz. (a) whether the forfeiture of security deposit is without authority of
\nlaw and without any binding contract between the parties and also contrary
\nto Section 5 of the Contract Act and (b) whether the writ petition is
\nmaintainable in a claim arising out of a breach of contract. Question (b)
\nshould have been first answered as it would go to the root of the matter.
\nThe High Court instead considered question (a) and then chose not to answer
\nquestion (b). In our view, the answer to question (b) is clear. It is
\nsettled law that disputes relating to contracts cannot be agitated under
\nArticle 226 of the Constitution of India. It has been so held in the cases
\nof Kerala State Electricity Board v. Kurien E. Kalathil<\/a> reported in [2000]
\n6 SCC 293, State of U.P. v. Bridge & Roof Co. (India) Ltd.<\/a> reported in
\n(1996) 6 SCC 22 and B.D.A. v. Ajai Pal Singh reported in (1989) 2 SCC 116.
\nThis is settled law. The dispute in this case was regarding the terms of
\noffer. They were thus contractual disputes in respect of which a Writ Court
\nwas not the proper forum. Mr. Dave however relied upon the cases of
\nVerigamto Naveen v. Government of A.P.<\/a> reported in [2001] 8 SCC 344 and
\nHarminder Singh Arora v. Union of India<\/a> reported in [1986] 3 SCC 247. These
\nhowever are cases where the Writ Court was enforcing a statutory right or
\nduty. These cases do not lay down that a Writ Court can interfere in a
\nmatter of contract only. Thus on the ground of maintainability the Petition
\nshould have been dismissed.\n<\/p>\n
By the impugned Judgment the Writ Petition has been allowed. The High Court
\nholds that the offer was withdrawn before it was accepted and thus no
\ncompleted contract had come into existence. The High Court holds that in
\nlaw it is always open to a party to withdraw its offer before its
\nacceptance. To this proposition there can be no quarrel. We therefore did
\nnot permit Mr. Dave to cite authorities for the proposition that an offer
\ncan be withdrawn before it is accepted.\n<\/p>\n
The Court, however, then goes on to hold as under :\n<\/p>\n
“The statutory right having been so exercised, the fetter imposed by the
\nclause to the contrary in the tender documents and the bank guarnatee could
\nnot override the provisions of the Indian Contract Act. Any clause in so
\nfar as it is contrary of comes in conflict with the provisions of the
\nIndian Contract Act is inoperative and void and connot be enforced. To have
\nan enforceable contract there must be an offer and unconditional
\nacceptance. A person who makes an offer has the right of withdrawing it
\nbefore acceptance. Until the offer is accepted unconditionally it creates
\nno legal right and the bid can be withdrawn at any time. Once it is held
\nthat there is no completed contract between the parties no further question
\ncan arise. There can be no breach of contract. There is no statutory rule
\nor an act whenunder the security deposit in the form of a bank guarantee
\ncould be claimed by the respondent No. 2. The position may, however, be
\ndifferent if there is a statutory rule having force of law precluding
\nwithdrawal of a bid before its acceptance. The petitioner was entitled to
\nwithdraw the bid because the prohibition against withdrawal does not have
\nthe force of law and there was no consideration to bind him down to the
\ncondition. In the present case there was no acceptance by respondent No. 2
\non the date of withdrawal of the bid by the petitioner. In the
\ncircumstances the invocation and encashment of the bank guarantee is
\nillegal and void and is liable to be set aside.” In our view, the High
\nCourt fell in error in so holding. By invoking the bank guarantee and\/or
\nenforcing the bid security, there is no statutory right, exercise of which
\nwas being fettered. There is no term in the contract which is contrary to
\nthe provisions of the Indian Contract Act. The Indian Contract Act merely
\nprovides that a person can withdraw his offer before its acceptance. But
\nwithdrawal of an offer, before it is accepted, is a completely different
\naspect from forfeiture of earnest\/security money which has been given for a
\nparticular purpose. A person may have a right to withdraw his offer but if
\nhe has made his offer on a condition that some earnest money will be
\nforfeited for not entering into contract or if some act is not performed,
\nthen even though he may have a right to withdraw his offer, he has no right
\nto claim that the earnest\/security be returned to him. Forfeiture of such
\nearnest\/security, in no way, affects any statutory right under the Indian
\nContract Act. Such earnest\/security is given and taken to ensure that a
\ncontract comes into existence. It would be an anomalous situation that a
\nperson who, by his own conduct, precludes the coming into existence of the
\ncontract is then given advantage or benefit of his own wrong by not
\nallowing forfeiture. It must be remembered that, particularly in government
\ncontracts, such a term is always included in order to ensure that only a
\ngenuine party makes a bid. If such a term was not there even a person who
\ndoes not have the capacity or a person who has no intention of entering
\ninto the contract will make a bid. The whole purpose of such a clause i.e.
\nto see that only genuine bids are received would be lost if forfeiture was
\nnot permitted.\n<\/p>\n
There is another reason why the impugned Judgment cannot be sustained. It
\nis settled law that a contract of guarantee is a complete and separate
\ncontract by itself. The law regarding enforcement of an “on demand bank
\nguarantee” is very clear. If the enforcement is in terms of the guarantee,
\nthen Courts must not interfere with the enforcement of bank guarantee. The
\nCourt can only interfere if the invocation is against terms of the
\nguarantee or if there is any fraud. Courts cannot restrain invocation of an
\n“on demand guarantee” in accordance with its terms by looking at terms of
\nthe underlying contract. The existence or non-existence of an underlying
\ncontract become irrelevant when the invocation is in terms of the bank
\nguarantee. The bank guarantee stipulated that if the bid was withdrawn
\nwithin 120 days or if the performance security was not given or if an
\nAgreement was not signed, the guarantee could be enforced. The bank
\nguarantee was enforced because the bid was withdrawn within 120 days.
\nTherefore, it could not be said that the invocation of the bank guarantee
\nwas against the terms of the bank guarantee. If it was in terms of the bank
\nguarantee, one fails to understand as to how the High Court could say that
\nthe guarantee could not have been invoked. If the guarantee was rightly
\ninvoked, there was no question of directing refund as has been done by the
\nHigh Court.\n<\/p>\n
Mr. Dave submitted that the Respondent had no option but to withdraw his
\noffer as the Appellants had not completed the toll plazas. He pointed out
\nthat the period of the contract was to be from 1st October, 1997 to 30th
\nSeptember, 1999. He submitted that even though the contract, if accepted,
\nwas to commence from 1st October 1997, the Appellants had not accepted the
\noffer till 20th November, 1997 and thus Respondent had to withdraw his
\noffer. He submitted that it has come on record that the toll plazas were
\nnot completed till March, 1998. He submitted that the Respondent was forced
\nto withdraw his offer because of the inaction\/ negligence on the part of
\nthe Appellant. He submitted that under these circumstances Respondent shold
\nnot be penalized by forfeiture of his deposit. We are unable to accept this
\nsubmission. The Bid security was given to meet a specific contingency viz.
\nnon-withdrawal of the offer within 120 days. The contingency having arisen,
\nAppellants were entitled to forfeit. It may only be mentioned that in the
\nproposed Agreement there is a clasue which provides that if therre is a
\ndelay on the part of the Appellants, which results in delay in the work of
\ncollection of toll, the amount payable by the Respondent would be reduced
\npro-rata. Thus by reason of the delay Respondent would not have suffered.
\nAlso Respondent was well aware that 120 days would end on 28th November,
\n1997. Thus the Respondent was aware when he gave his offer, that acceptance
\ncould be delayed till 28th November, 1997. Thus non-acceptance till 20th
\nNovember, 1997 was not a ground would justify action of Respondent in
\nwithdrawing his offer.\n<\/p>\n
In this view of the matter, the impugned Judgment is set aside. The Appeal
\nis accordingly allowed. The Writ Petition of the Respondents shall stand
\ndismissed. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India National Highway Authority Of … vs Ganga Enterprises And Anr on 28 August, 2003 Bench: S.N. Variava, H.K. Sema CASE NO.: Appeal (civil) 4123 of 1999 PETITIONER: NATIONAL HIGHWAY AUTHORITY OF INDIA RESPONDENT: GANGA ENTERPRISES AND ANR. DATE OF JUDGMENT: 28\/08\/2003 BENCH: S.N. VARIAVA & H.K. SEMA JUDGMENT: JUDGMENT 2003 Supp(3) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134764","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNational Highway Authority Of ... vs Ganga Enterprises And Anr on 28 August, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/national-highway-authority-of-vs-ganga-enterprises-and-anr-on-28-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National Highway Authority Of ... vs Ganga Enterprises And Anr on 28 August, 2003 - 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