IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C). No. 4231 of 2012 M/s. [ENTITY], a company incorporated under the Companies Act, 1[SECTION][SECTION][SECTION] having its Registered Office at 23 A, Netaji Subhas Road, 4th Floor, Room Nos. [SECTION] & 18, Kolkata - 700001 (West Bengal) through its Manager- cum - Authorized Signatory Sri Vikram Singh Son of Late Jugeshwar Singh resident of Flat No. D - 1, Block - C, Jaishree Green City, Argora, P.O. & P.S. Argora, Distt. - Ranchi (Jharkhand). Petitioner Versus 1. The [ENTITY] through its Chairman- cum - Managing Director having its office at Darbhanga House, Kutchery Road, Ranchi. 2. The [ENTITY]. 3. The [ENTITY]. 4. [ENTITY]. [SECTION]. [ENTITY]. Respondents
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioner : Mr. [ENTITY], Advocate : Ms. [ENTITY], Advocate : Ms. [ENTITY], Advocate For the Respondents : Mr. [ENTITY], Advocate : Ms. [ENTITY], Advocate
11/1[SECTION].07.2018 Heard Mr. [ENTITY], counsel appearing on behalf of the petitioner assisted by Ms. [ENTITY], Advocate.
2. Heard Mr. [ENTITY], counsel appearing on behalf of the respondents assisted by Ms. [ENTITY], Advocate.
3. This writ petition has been filed for the following relief:
(a) For a direction upon the respondents to issue the delivery order to the petitioner and allow the petitioner to lift the coal for which the petitioner has made its bid under e-auction and was declared successful also, but due to bonafide inadvertent mistake, the balance amount deposited towards the said bid after adjustment of the earnest money was transferred to the Bank Account of the Respondent at Bachra Branch and not at Ranchi Branch and for which in a most arbitrary and unreasonable manner, the petitioner is being held defaulter and consequently has been debarred from issuance of delivery order and lifting the coal, although the entire money is deposited and lying in the [ENTITY] Sales Realisation Account of the Respondents itself.
(b) For a direction upon the respondents to show cause as to how, why and under what authority of law the respondents are trying to forfeit the earnest money deposited by the petitioner for the purpose of participating in the bid, when admittedly none of the terms and conditions as postulated in clause [SECTION] of the special terms and conditions have not been violated which deals with forfeiture of earnest money and otherwise also, since the entire remittance has been made by the petitioner against the bid, the petitioner cannot be termed to be a defaulter in terms of the special terms and condition of the e-auction.
(c) For a direction upon the respondents to refund the earnest money deposited by the petitioner for the purpose of participating in the e-
auction bid, which the Respondents are seeking to forfeit, although no written communication has been given to the petitioner, without any fault of the petitioner.
(d) For an appropriate writ in the nature of Certiorari quashing the letters dated 1[SECTION].08.2012 and 0[SECTION].10.2012, whereby and where under the claim of the petitioner stood rejected, unilaterally without taking into consideration that forfeiture of Earnest Money deposited in the present facts is not contemplated under the e-auction scheme 2007."
2. At the outset counsel for the petitioner submits that he is confining his writ petition only to the claim of refund of security money.
ARGUMENTS OF THE COUNSEL FOR THE PETITIONER
3. Counsel for the petitioner submits as under :-
a. The petitioner had participated pursuant to two e-auction notices issued by the respondents and the e-auction were held on 27.[SECTION].2012 and 2[SECTION].[SECTION].2012 and is governed by the terms and conditions mentioned in the e-auction notice. As per [SECTION] and [SECTION] of the terms and conditions of e-auction notice, the petitioner was supposed to get himself registered and deposit earnest money (EMD) in terms of [SECTION].[SECTION]. He submits that there is no dispute that the petitioner had deposited the earnest money to the full satisfaction of the respondents and thereafter the petitioner was declared successful.
b. As per the terms and conditions of the e-auction notice, the petitioner was supposed to deposit the balance amount in terms of clause - [SECTION] of the terms and conditions. He further submits that while depositing the balance amount after being declared successful, there was an error on his part as the amount was deposited in bank account of the respondent at Bachra Branch of Punjab National Bank, at Bachra, instead of bank account of the respondents at Ranchi Branch of Punjab National Bank, at Ranchi. The head office of the respondents is situated at Ranchi. c. He further submits that as soon as he was declared successful and after depositing the aforesaid amount with the respondents although in another account of respondents, he approached the respondents for the purposes of delivery of coal and upon which it came to light that the amount in relation to coal value has been deposited in another account of the respondent. d. In such circumstances, the petitioner requested the respondents that the amount which has been credited in Bachra Branch of Punjab National Bank be transferred in the account of the petitioner at Ranchi Branch of Punjab National Bank. e. Thereafter, when the petitioner realised that there was some difficulty in transferring the said amount from Bachra Branch bank account of the respondents to Ranchi Branch bank account of the respondents, the petitioner filed a representation dated 21.07.2012, requesting the respondents to allow him to deposit the said amount again in the Ranchi Branch bank account of the respondents and they undertook to deposit the same immediately on approval.
f. Thereafter, he submits that the respondents did not accede to their request and ultimately the impugned letter as contained in Annexure - [SECTION], was issued by the respondents, wherein, on the one hand respondents had indicated that the amount deposited by the petitioner in Bachra branch bank account has been refunded back to the remitting bank and in terms of [SECTION] and [SECTION] of the e-auction scheme the earnest money deposited by the petitioner has been forfeited and in the said letter it was also mentioned that the dispute raised by the petitioner has been determined by the General Manager, Sales and Marketing in terms of clause 11.12 (wrongly mentioned as clause 11.1.2). g. Counsel for the petitioner submits that there was a bonafide mistake on the part of the petitioner in depositing the amount so far as sale value is concerned although the sale value of the coal was deposited within time in the account of the respondents only. He submits that the bonafide of the petitioner is apparent from the fact that immediately upon coming to know that the amount has been credited in another account of the respondent, the petitioner had themselves offered to deposit the amount afresh / to transfer the amount deposited in Bachra branch bank account of the respondents to Ranchi Branch Bank account of the respondents both with Punjab National Bank. h. Counsel for the petitioner has referred various clauses of the terms and conditions of the e-auction notice and submits that there is no indication in the terms and conditions of the e-auction notice as to account in which the amount of coal value has to be deposited but at the same time he does not dispute the fact that the petitioner had knowledge that the amount has to be deposited in the Punjab National Bank account, Ranchi Branch, account of the head office of the respondents.
i. He further submits that the forfeiture of earnest money is on the ground which is neither contemplated nor mentioned in the terms and conditions of e-auction notice and accordingly, ex- facie the action of the respondents is illegal, arbitrary and without any basis. The respondents being State within the meaning of [SECTION] of the [ACT], the impugned action is hit by [SECTION] of the [ACT].
j. He further submits that as far as aforesaid facts are concerned, the same have not been disputed by the respondents and accordingly this writ petition is based on admitted fact. . Counsel for the petitioner has also referred to the judgment passed by Hon'ble Supreme Court in the case reported in (2010) 1[SECTION] SCC 1[SECTION]7 and submits that in case of bonafide mistake, which is rectifiable, the same does not call for imposition of penalty. He has also referred to the judgment reported in (2012) 11 SCC 31[SECTION] on the same point. He submits that forfeiture of earnest money is nothing but penalty.
k. He further submits that he is conscious of the fact that there is arbitration clause in the terms and conditions of sale but he submits that on the facts and circumstances of this case and considering the arbitrary action of the respondents, this Court may exercise the power under [SECTION] of the [ACT]. He has also relied upon the judgment reported in (201[SECTION]) 4 SCC 2[SECTION]2 para - [SECTION] to 13.
l. Counsel for the petitioner has also referred to Annexure- 10 of the writ petition to submit that under similar circumstances by Mahanadi Coal fields limited the amount of security money was refunded through credit note when the person concerned had deposited sale value in another account of the concerned coal company.
ARGUMENTS OF THE COUNSEL FOR THE RESPONDENTS
2. Counsel for the respondents on the other hand submits that the writ petition itself is not maintainable on account of availability of alternative remedy to the petitioner and he submits that after the decision which was rendered under clause 11.12 of the e-auction notice, the petitioner had to file an appeal before the appellate authority and thereafter if his grievance is not redressed, there is a provision for arbitration under Arbitration and Conciliation Act, 1[SECTION][SECTION][SECTION].
3. He further submits that the writ petition is also not maintainable on account of disputed question of facts involved in this case and the fact which according to the respondents is disputed is the bonafides of the petitioner in depositing the amount in the account at Bachra branch account of the respondents instead of at Ranchi Branch account of the respondents. It is denied by the respondents that the petitioner deposited the amount in a wrong account inadvertently and under bonafide mistake.
4. He has referred to the judgments passed by Hon'ble Supreme Court reported in [PRECEDENT]; (2014) 10 SCC [SECTION]30 and (201[SECTION]) 7 SCC 728 to submit that this Court ought not exercise power under [SECTION] of the [ACT] and entertain this writ petition on account of availability of alternative remedy to the petitioner and such disputed questions of fact as to whether the action of the petitioner was bonafide or not cannot be decided in writ jurisdiction as the same requires evidence.
[SECTION]. The counsel for the respondents has referred to the supplementary counter affidavit filed on 12.[SECTION].2018, wherein, the statement of the petitioner that it was bonafide mistake has been denied and he further submits that the system of deposit of sale value through bank account was introduced to reduce the induction of black money in coal business.
[SECTION]. However, during the course of arguments the counsel for the respondents could not dispute the fact that the amount which was remitted by the petitioner was from the designated bank account of the petitioner but the amount was credited in Bachra Branch bank account of the respondents instead of Ranchi Branch Bank account of the Respondents.
7. Counsel for the respondents while referring to the provisions for forfeiture of EMD pursuant to deposit of coal value in another account has referred to Annexure- A which is of the year 2011 and then Annexure-B & C dated 28.[SECTION].2012 and 30.0[SECTION].2012 respectively. He submits that in terms of these documents, the amount relating to the coal value was to be deposited only in the designated bank account of the respondents. He also submit that it has been mentioned in the notices dated 28.0[SECTION].2012 and 30.0[SECTION].2012, that if the amount is not remitted in the concerned designated bank account of the respondents then the EMD shall be forfeited.
8. However, during the course of arguments the counsel for the Respondents could not point out any provision in the e- auction notice indicating that the amount of the coal value has to be deposited only in any designated bank account of the respondents which may be notified later.
[SECTION]. He further submits that by virtue of a notice, as back as from 01.04.2011, it was circulated to all the concerned that the coal value has to be deposited through the declared bank account only, failing which the transaction will fail and sale order would not be generated and in the said notice the details of the bank account in which the amount has to be remitted was also mentioned.
10. Counsel for the respondents submits that the facts relating to Annexure - 10 of the writ petition are disputed and such plea also requires evidence and such points cannot be appreciated in writ jurisdiction. He further submitted that otherwise also, merely because one transaction relating to another coal company has been made in a particular manner, the same cannot be binding upon the respondent coal company and that does not create any equity or right in favour of the petitioner.
FINDINGS OF THE COURT
11. After hearing the counsel for the parties and after considering the materials on record this Court finds as follows:
a) On the point of maintainability of writ petition.
i. So far as the point of maintainability is concerned, this Court finds that the respondent-[ENTITY] is State within the meaning of [SECTION] of the [ACT] and in spite of the provision of alternative remedy which has been mentioned in the e-auction notice, the respondents cannot escape their duty to act in consonance with [SECTION] of the [ACT]. The Hon'ble Supreme Court has laid down the principles to deal with the matters arising out of contractual disputes under [SECTION] of the [ACT].
ii. In the case of judgment reported in (2004) 3 SCC [SECTION][SECTION]3 (ABL International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd. ) it has been held in para 27 and 28 as under :-
"27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
28. However, while entertaining an objection as to the maintainability of a writ petition under [SECTION] of the [ACT], the court should bear in mind the fact that the power to issue prerogative writs under [SECTION] of the [ACT] is plenary in nature and is not limited by any other provisions of the [ACT]. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See [PRECEDENT]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of [SECTION] or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."
iii. In the case reported in (2010) 11 SCC 18[SECTION] (Central Bank of India v. Devi Ispat Ltd.) the Hon'ble Supreme Court at para 28 has held as follows:-
"28. It is clear that (a) in the contract if there is a clause for arbitration, normally, a writ court should not invoke its jurisdiction; (b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under [SECTION]; and (c) if the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of [SECTION] of the [ACT] in its contractual or statutory obligation, writ petition would be maintainable. However, a legal right must exist and corresponding legal duty on the part of the State and if any action on the part of the State is wholly unfair or arbitrary, writ courts can exercise their power. In the light of the legal position, writ petition is maintainable even in contractual matters, in the circumstances mentioned in the earlier paragraphs."
iv. In the case reported in (2011) [SECTION] SCC [SECTION][SECTION]7 (Union of India v. Tantia Construction (P) Ltd.) the Hon'ble Supreme Court at para 33 and 34 has held as follows:-
"33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr [ENTITY] would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the [ACT].
34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits."
v. Thus the Hon'ble Supreme Court has clearly held that involvement of contractual dispute or availability of an arbitration clause in the agreement cannot ipso facto be a ground for dismissal of the writ petition. The power under [SECTION] of the [ACT] is plenary in nature. If in an appropriate case in which some public law element is involved and the state has dealt with any private individual in an unfair, unjust and arbitrary manner and in violation of [SECTION] of the [ACT], the writ jurisdiction under [SECTION] of the [ACT] can be invoked to grant an appropriate relief to an aggrieved person.
vi. So far as the judgment relied upon by the respondents reported in [PRECEDENT]; (2014) 10 SCC [SECTION]30 (IB Valley Transport , Vijay Laxmi (P) Ltd. Vs. Mahanadi Coalfields Ltd.) and (201[SECTION]) 7 SCC 728 (Joshi Technolgies Internations Inc. Vs. Union of India) are concerned, these judgments are not applicable under the facts and circumstances of this case as no element of public law was involved in the facts of those cases. In (2014) 10 SCC [SECTION]30 the dispute had arisen about the methodology for calculation of wage component. In para 72 of the said judgment reported in (201[SECTION]) 7 SCC 728, it was held that in the fact situation of the said case no element of public law was involved. Further on the principles of law it was held in para [SECTION][SECTION] and 70.[SECTION] as follows:-
"[SECTION][SECTION]. Law in this aspect has developed through catena of judgments of this Court and from the reading of these judgments it would follow that in pure contractual matters the extraordinary remedy of writ under [SECTION] or [SECTION] of the [ACT] cannot be invoked. However, in a limited sphere such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simpliciter under the contract. Some of the case law to bring home this cardinal principle is taken note of hereinafter.
70.[SECTION]. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under [SECTION] of the [ACT] to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary."
vii. It is extremely difficult to draw a line between element of private law and element of public law particularly when an instrumentality of state is involved as a party to the litigation. It is all the more difficult as these terms i.e. public law and private law have no clear or settled meaning. This court is of the considered view that even when the instrumentality of state is entering into transactions with private individuals which are contractual in nature, a duty is cast upon them to act fairly and reasonably. If in a particular situation, it is found that the instrumentality of the state has acted unfairly, unreasonably or the impugned action is confiscatory in nature or an abuse of power, this court is of the considered view that such action being violative of [SECTION] of the [ACT], writ petition under [SECTION] of the [ACT] will be maintainable even if the parties are governed by a contract having an arbitration clause.
viii. The respondent is a company owned by the government of India and has been dealing with the petitioner under e-auction scheme framed by Coal India Limited as is apparent from annexure D to the counter affidavit filed by the respondents, with a view to provide transparent access to all the buyers of coal in a transparent manner. Thus there is certainly an element of public law involved in auction through e-auction. ix. This Court from the findings, hereinafter arrived, finds that the action of the respondents is ex-facie arbitrary, unreasonable, illegal and confiscatory and accordingly on this count also this Court finds that an element of public law is involved in this case, therefore this court is inclined to exercise the power under [SECTION] of the [ACT] in this writ petition.
ON THE MERITS OF THE CASE i. The relevant provisions of e-auction notice mentioned in [SECTION], [SECTION], [SECTION] & [SECTION] are quoted herein below: 2. Registration:
2.1 Before participation in the e-Auction, a prospective Buyer shall be required to get itself / himself registered with Services provider appointed by the CIL/Coal Companies for the purpose, by submitting an application in the prescribed format available on the Website of respective Service providers. The application shall be made along with the required documents such as copy of Income Tax return (latest), PAN Number, Sales Tax / Vat Registration Certificate, SSI Registration, Trade License, if applicable, Passport size photograph, etc. as prescribed by the service provider.
Registration can be done either online, or at any of the front offices of the service provider.
2.2 After the registration, all-prospective Buyers will have an auto generated Unique User ID & a password based on which they can log in. Details of the registration process with the Service provider will be available in their respective websites.
2.3 The Service provider shall issue Photo Identity Card to such registered bidders duly authenticating the identity & signature, indicating a Unique Registration Number allotted to them. The Unique Registration Number of the registered bidders shall be communicated to the coal Companies by the Service provider. 2.4 Only one registration will be done against one PAN number. However, based on more than one independent valid sales tax registration, more than one registration against a PAN Number can be considered. In such cases, the details of valid sales tax registration will be indicated in each Photo Identity Card.
[SECTION] All Buyers having been registered with the service providers shall also have to furnish non-interest bearing Earnest Money Deposit (EMD) at the rate of Rs.[SECTION]00/- per tonne, for coal of GCV more than 4,300 KCAL and at the rate of Rs.400/- per tonne for coal of GCV of 4,300 KCAL AND below, with the Service provider. This EMD shall not be specific for a particular subsidiary coal company and shall be available with the service provider for participation in the e-auction across the subsidiary coal companies of CIL, as long as the required amount of EMD is available in the bidders a/c with the service provider.
[SECTION]. Post e-Auction process:
[SECTION].1 Each successful bidder will be intimated through e-mail/SMS by the Service provider on the same date after the closure of e-auction.
However, it will be the responsibility of the bidder to personally see and download the result displayed on the website, on the same date after close of e-auction.
[SECTION].2 The successful bidders after the e-auction, will be required to deposit coal value with the concerned coal company, within a period of seven working days, after the date of closing of e-auction. Seven working days would be reckoned as applicable to the respective subsidiary coal companies' office where the payment of deposit is required to be made.
[SECTION].3 Equivalent amount of EMD of the successful bidder corresponding to the successful bid quantity, shall be blocked and will be transferred to the Coal Company by the service provider along with the bid sheet in respect of successful bidders.
[SECTION]. Terms of payment:
[SECTION].1 The coal value to be deposited in advance by the successful bidders shall be computed and deposited after making provision for the EMD amount for the successful bid quantity already transferred by the service provider to the subsidiary company. In other words, the coal value to be deposited and EMD amount together, shall be equivalent to the 100 % of the coal value.
[SECTION].2 EMD amount shall not be treated as an adjustment towards the coal value but would stand converted into a Security Deposit for performance of the bidders towards completion of the said transaction.
[SECTION].3 The above security deposit (as converted from the EMD amount) would be adjusted as coal value, only after completion of lifting of coal covered under coal value paid, excluding security deposit. However, in the event of default in performance by the bidder, the provision of forfeiture of the Security Deposit (as converted from the EMD) as stipulated, would be applicable.
[SECTION].4 In case of road supplies, once the coal value is deposited by way of demand draft /pay order, drawn in favour of the concerned coal company, along-with the debit advice issued by the bank, certifying that the DD/pay order / RTGS mode has been issued, by debiting the account of the concerned Buyer, Sale/Delivery orders shall be issued within seven days by the coal company after encashment of buyer's financial instrument.
In case of successful bidders, if the coal value is deposited for less than the allotted Quantity but not below [SECTION]0% of the allotted quantity or, [SECTION]0 tonne whichever is higher, the coal company shall accept the payment for the said amount and forfeit the EMD for the failed quantity. However if the buyer fails to deposit the coal value for at least [SECTION]0% of the allotted quantity or [SECTION]0 tonnes whichever is higher then the entire EMD of the allotted quantity shall be forfeited.
[SECTION].[SECTION] However, a successful bidder whose allotted quantity is only [SECTION]0 tonnes will be allowed to deposit coal value for minimum [SECTION]0% i.e 4[SECTION] tonnes within the stipulated period of 7 days without which the amount shall not be accepted. In such event they shall be permitted to deposit the balance fractional amount, limited to 10 % of the total coal value of [SECTION]0 tonne, within the subsequent period of 3 (three) working days. In spite of this, if they fail to deposit full coal value of [SECTION]0 tonne (minimum bid quantity), EMD for entire [SECTION]0 tonne shall be forfeited.
[SECTION].[SECTION] In case of rail borne supplies, there shall be two options available. While submitting program, the bidder at his option can deposit 100 % BG on the prescribed format from the buyers own account or else may deposit 100% amount through demand draft /pay order, drawn in favour of the concerned coal company, along with the debit advice, issued by the bank certifying that the DD/pay order has been issued by debiting the account of the concerned Buyer.
[SECTION].7 In case of Buyers who have booked their rail programme through BG, a notice for deposition of coal value by way of DD/Pay order/RTGS mode will be displayed on the notice board of the coal company, at least three working days in advance before the expected date of offer to the Railways for allotment. The Buyer will be accordingly required to deposit DD/Pay Order/RTGS mode along with the debit advice to the tune of BG involved in the programme, within 48 hours of such notice. But in case it is to be noted that buyer who wish to avail bank guarantee facility are required to deposit coal value under e-auction prior to seven working days of the validity of the sanction. In case of failure to deposit, the EMD so deposited will be forfeited. All the buyers must satisfy themselves with quality, size and other aspects by inspecting the materials available for proposed e- auction before bidding.
In the event of non-deposition of 100% coal value by the Bidder in terms of Clause-[SECTION].7 above, the consent given against rake programme will be withdrawn by the coal company and EMD as per e-Auction scheme will be forfeited.
[SECTION].8 The Buyers shall also have the option of e-Payment once the system in the Coal companies is suitably developed & the same is notified on the websites accordingly.
[SECTION].[SECTION]. Successful Buyers are requested to deposit the coal value to the extent of 3 Demand Drafts only. More than 3 Demand Drafts will not be accepted and failure on the part of the Buyer to deposit the coal value within the validity period will be liable to forfeiture of EMD.
[SECTION].10. Consumers/Buyers are requested to deposit Original Road Delivery orders to the colliery for lifting of coal. Those who are willing to lift the coal are also requested to deposit the Consumers Copy. Those who fails to deposit original Consumers copy of RDO to the colliery end, the refund of amount will not be processes until and unless is same is deposited at the area/colliery. All consumers are also requested to receive the coal bills after completion of RDO or after the expiry of the validity period from the colliery by 2[SECTION]th of succeeding month.
[SECTION]. Forfeiture of EMD:
The EMD submitted by the successful Bidders will be liable for forfeiture in the following cases:
[SECTION].1 If after completion of e-Auction, a successful bidder fails to make payment for the coal value including all other charges within the stipulated time, the proportionate EMD equivalent to the failed quantity shall be forfeited subject to the provisions at Clause [SECTION].4 and/or Clause [SECTION].[SECTION] of this document, and/or, [SECTION].2 If the successful bidders does not lift the booked quantity within the stipulated validity period
[SECTION].3 If the Buyer cancels the order/Rake after booking "
12. From the perusal of the entire terms and conditions of e-
auction notice, this Court finds that there is no mention in the entire e-auction notice as to whether the amount has to be deposited through any designated bank account to any designated bank account. So far as the Annexure- A to the counter-affidavit is concerned which is of the year 2011, indicates that the customers have to remit the coal value through declared bank account to a designated bank account of respondent [ENTITY] failing which their transaction will fail and the sale order may not be generated. In this circular also there is no mention that in case of non-deposit through a designated bank account to a designated bank account of the respondent [ENTITY], the EMD will stand forfeited. Admittedly the e-auction had taken place on 27.0[SECTION].2012 and 2[SECTION].0[SECTION].2012 and as per Annexure - B dated 28.[SECTION].2012 and 30.0[SECTION].2012 relating to e-auction held on 27.0[SECTION].2012 and 2[SECTION].0[SECTION].2012 respectively, i.e. immediately one day after the e-auction was already over, the respondents have come up with these notices wherein they have indicated for the first time that in case of aforesaid e-auctions the amount has to be remitted through RTGS/NEFT only and in case the amount is not remitted within the stipulated time, as above, the EMD shall stand forfeited.
13. This Court finds that, on the one hand, there was no such terms and conditions under the e-auction notice that the amount has to be remitted through any designated bank account to any designated bank account that too only through RTGS / NEFT, and, on the other hand, there was no such indication in the e-auction sale notice that in case of non-deposit of money through designated bank account to designated bank account, the EMD will stand forfeited.
14. Certainly provision for forfeiture of EMD is in the form of penalty for non- compliance of the terms and conditions of the e-auction. This being a penal provision has to be strictly construed. This Court finds that the reasons for which the EMD has been forfeited does not find its place in the terms and conditions of the e-auction notice itself. Accordingly, the action of the respondents in forfeiting the EMD amount by referring to the [SECTION] and [SECTION] of the terms and conditions of e-auction is ex-facie arbitrary, illegal, confiscatory and accordingly it is arbitrary and violative of [SECTION] of the [ACT]. Accordingly the impugned orders dated 1[SECTION].08.2012 (Part of Annexure-[SECTION]) and dated 0[SECTION].10.2012 (Part of Annexure- [SECTION]) whereby the EMD amount of the petitioner has been forfeited, are hereby set-aside.
1[SECTION]. So far as the disputed questions of fact as indicated by the counsel for the respondents is concerned, this Court has not taken into consideration any disputed facts as indicated by the respondents i.e. claim of the petitioner that the mistake by the petitioner was bonafide and the matter relating to Mahanadi Coal fields limited in connection with some other party.
1[SECTION]. Further , the contention of the respondents that the action of the petitioner in not depositing the EMD amount in the designated bank account is malafide, is neither apparent from the impugned order nor it is apparent from the first counter- affidavit which was filed by the respondents. There is no dispute that the amount was remitted by the petitioner only through his designated bank account but it was transmitted to the bank account of the respondents which was other than the designated bank account of the respondents. There is neither anything on record nor have any such arguments been advanced to show as to how such banking transaction will lead to circulation of black money.
17. As a cumulative effect to the aforesaid findings, this writ petition is hereby allowed with a direction to the respondents to refund the EMD (security money) amount of the petitioner involved in this case within a period of two months from the date of receipt of copy of this order along with interest @ [SECTION] percent per annum from the date of its forfeiture till the date of payment.
([ENTITY], J.) Jharkhand High Court Dated:1[SECTION].07.2018 [ENTITY]/AFR