Shruti Visual Information Pvt. Ltd. Vs. Jharkhand Renewable Energy Development Agency and ors.

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....petitioner accordingly, has come to this court seeking a direction to finalize the matter in pursuance of the n.i.t. and also to pay the cost of documentary, prepared by it, amounting to rs. 50,508/- and also to refund the earnest money of rs. 5,000/-.2. in paragraph no. 16 of the counter affidavit filed by respondent no. 5, it is stated that the tender, in question, was cancelled and information was displayed on the notice board, besides it was communicated to each one of the tenderers on telephone.3. learned counsel appearing for the petitioner, has denied the receipt of information cancellation of tender through telephone.4. be that as it may, the fact remains that the tender as a whole has been cancelled and, thus the respondents cannot be compelled to accept the tender. in so far the question of cost of sample documentary is concerned, there is no such condition in the n.i.t. that the cost towards preparation of sample documentary shall be incurred by the department. if samples are asked for, it is for the tenderers to provide the sample. therefore, i do not find any basis for directing the respondents to pay the cost incurred in preparation of the documentary sample.5. in so far as the other prayer of the petitioner for refund of earnest money is concerned, respondents having cancelled the tender as a whole, are not entitled to retain the earnest money. the amount of earnest money, thus, shall be refunded with interest at the rate of 6% per annum from the date of deposit till the amount is paid.6. the writ petition stands disposed of accordingly.