Full Judgment
On 14th March, 2008 itself the petitioner had offered to purchase the total quantity of metal scraps put up on auction @ 2.27 per kg.. He had enclosed therewith two pay orders, one for Rs.5 lakh and other for Rs.3 lakh, towards earnest money. The letter contained the following condition: If my price will be highest and accepted by you, will give me three instalment to deposit balance amount. Despite such condition in the offer of the petitioner, his tender was opened alongwith the tenders submitted by other participants.
The petitioners offer was found to be highest and by letter dated 18th March, 2008, he was called upon to pay the balance amount of Rs.82,66,505/- through demand draft at the earliest. This letter was followed by a reminder dated 26th March, 2008. This time the petitioner was called upon to deposit the balance amount within 28th March, 2008. By his letter dated 28th March, 2008, the petitioner expressed his inability to pay the balance amount. He offered to pay the first instalment of Rs.25 lakh by the first week of April, 2008 and the second and third instalment within a further period of 35 days.
The request of the petitioner was not accepted. By letter dated 28th March, 2008, the tender was treated as rejected and the earnest money of Rs.8 lakh deposited by him forfeited. The order forms the subject matter of challenge in this petition. The only question that arises for consideration is whether on the facts and circumstances the respondents were justified in forfeiting the earnest money deposited. I have heard Mr. Majumdar, learned Advocate for the petitioner and Mr. Mukherjee, learned Advocate for the respondents. On perusal of the materials, I am constrained to hold that both the parties are to be blamed for the impasse. In the first place, the petitioner ought not to have given an additional offer at the same time, once the petitioner had given an additional offer, the respondent should not have accept the same in terms of Clause 8 (supra).
It has not been stated in the affidavit-in-opposition, as contended by Mr. Mukherjee, that the letter dated 14th March, 2008 containing the additional offer by the petitioner was received after the tender was opened. In fact, the letter dated 14th March, 2008 contained the offer of the petitioner and, as such, question of receipt thereof after the tenders were opened does not and cannot arise. The petitioner by his conduct also does not appear to be interested in performing his part of his obligation.
According to him, he had sought for opportunity to clear the outstanding amount in three instalments. According to Clause 5 (supra), the outstanding amount is required to be deposited within 10 days of finalization of tender. Although the respondents have pleaded in their affidavit-in-opposition that the tender was finalized on 14th March, 2008, that does not appear to be so on the basis of the other documents on record. It was only on 18th March, 2008 that petitioner was communicated as to the acceptance of his tender and, therefore, it could be such a stage that finalization of the tender had been reached. As a logical corollary, the petitioner ought to have made payment of at least of the outstanding amount within 10 days in terms of Clause 5 (supra).
The petitioner did not show his bona fide and by the letter dated 20th March, 2008 expressed his inability to make payment because of the ensuing year ending and sought for further time to put in the first instalment by the first week of April, 2008. It is amply clear that the petitioner had no intention of making payment by 20th March, 2008 or even a few days thereafter. But even otherwise the petitioner appears to have made a misleading statement in paragraph 10 of the writ petition.
It has been stated therein that immediately after receipt of the order forfeiting the earnest money deposited, the petitioner had been to the office of the respondent for making payment of balance amount. If indeed that were true, the petitioner ought to have prepared a demand draft for effecting payment in terms of the terms and conditions of the auction notice. Replying to a query of this Court as to whether any demand draft had, in fact, been issued by any bank on an approach being made by the petitioner, Mr. Majumdar replied that the petitioner had been to the office of the respondents with cheque book. I find it too difficult to accept the contention.
The respondent by their letter dated 18th March, 2008 having called upon the petitioner to effect payment of the balance amount through demand draft, there is no question of the petitioner seeking effect payment through a cheque.
Since both parties are at fault, I am of the considered view that interest of justice would be sub-served if the respondents are directed to refund 50% of the earnest money deposited by the petitioner.
It is ordered accordingly. The refund shall be expedited as early as possible but not later than a fortnight from date of production of a copy of this order. With the aforesaid direction, the writ petition stands disposed of without any order for costs.
Urgent certified Photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.