IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13254 of 2007 G.B.Printers through its sole Proprietor Kundan Kumar, Dharhara Kothi Lane, Dharhara Kothi, P.S.-Pirbahore, Naya Tola, Patna-800001 ………Petitioner Versus 1. The Union of India through its Secretary, Ministry of Communication and Technology, Department of Posts, New Delhi. 2. The Chief Post Master General, Bihar Circle, Megh Doot Bhawan, G.P.O. Complex, Patna-800001. 3. The Assistant Director (Technical), Bihar Circle, Megh Doot Bhawan, G.P.O. Complex, Patna-800001. 4. Postal Director (Material), Bihar Circle, Megh Doot Bhawan, G.P.O. Complex, Patna-800001. 5. The Superintendent, Postal Storage Depot, Megh Doot Bhawan, G.P.O. Complex, Patna-800001. 6. The Director (Accountants) Bihar Circle, Megh Doot Bhawan, G.P.O. Complex, Patna-800001. ………Respondents ----------- For the petitioner :- Mr. Kamal Nayan Choubey, Sr. Adv. Mr. Akhilesh Kumar, Adv. For the respondents :- Mr. Vijay Kumar(C.G.C), Adv. ------------- 04. 13.01.2009 A notice inviting tender dated 30.11.2006 was issued by the Government of India in the Ministry of Communication and Technology, Department of Post in the office of the Chief Post Master General, Bihar Circle, Bihar, Patna for supply of SB-5 Pass Book (New Format) and allied stationary for the period of one year. Earnest money for the tender was fixed at Rs. 1, 50,000/-. Clause 13 provided for time schedule for completing of work and stipulated that the work must be completed within a period of three months from the date of award of work or as schedule mentioned in part 2 of Annexure-2. Clause 15 provided for penalties. In - 2 - specific Clause 15(f) provided that as the work being awarded was of important nature, time schedule given in Clause 13 must be adhered, failing which penalty was liable to be imposed. Petitioner responded and was selected. As per tender, the total estimated requirement of SB-5 Pass Book was about thirty lakhs. Consequent to petitioner’s selection, an agreement was entered into between the parties. On 26.2.2007(Annexure-7) the agreement clearly stipulated that the contract was valid for a period of one year from 29.1.2007 to 28.1.2008. Clause 5(f) of the agreement is relevant and quoted hereunder: “In the event of contractor failing to: Since the work being awarded to the contractor is of important nature the time schedule given must be adhered to failing which a penalty at the rate @ 2% each week’s delay or as decided by the competent authority will be imposed which will be recovered in the manner stated in the Sub-clause (b) above.” In course of time, petitioner was placed with two work orders under the said agreement. First was for printing 3,35,000/- SB-5 Pass Books by order dated 14.2.2007(Annexure-6) which clearly stipulated that the full quantity should be supplied within fifteen days, failing which penalty @ 2% for each weeks delay must be imposed. This was followed by a further order on - 3 - 1.3.2007. The second being 7.3.2007(Annexure-10) for 6, 65,000/- further Pass Books. It is not disputed that on 19.3.2007 the format of Pass Books were finally approved and the petitioner was then required to deliver the entire consignment of ten lakhs Pass Books on 27.3.2007 as would be apparent from the letter of the respondent as contained in Annexure-12. It appears that the petitioner having been unable to make supplies by the said date, the impugned order as contained in Annexure-13/A dated 30.3.2007 was issued canceling the supply orders. The petitioner’s grievances are two fold. Firstly that the period of agreement was for a period of one year from 29.1.2007 to 28.1.2008 and in the agreement itself as also in the supply order, it was clearly stipulated that if there was a delay in supply penalty of 2% per week would be imposed. It is submitted that once such a specific contingency was provided for in the agreement then at best petitioner could be visited with a penalty for delay but the supply order could not be set aside as by the time the order setting aside the supply order was passed, the petitioner had already printed substantial quantity of Pass Books which were ready for delivery. Rejecting the whole would cause immense loss to the petitioner in as much as they were special supply orders and can not be used elsewhere. The second grievance of - 4 - the petitioner is that the agreement not having been rescinded the earnest money and the bank guarantee can not be forfeited and must be refunded. Counter affidavits have been filed in which it is stated with reference to petitioner’s letter dated 1.3.2007(Annexure-5 to the counter affidavit filed on behalf of respondent No. 2) that petitioner had undertaken to supply Pass Books by 27th of March, 2007 and as such petitioner having failed to do so they had a right to rescind the work order. It is further stated that the work order being rescinded, the same was assigned to the second bidder who had executed the said work order though the quantity executed by the second contractor is not disclosed. Thus the question is as to what relief petitioner is entitled to. Respondent submitted that as the petitioner could not keep up the delivery schedule, they had a right to rescind work order and assign it to another. That having being done, this Court should not interfere in the matter. Thus in my view, first the question that arises is whether for delay in execution of the work order did the respondents have the right to cancel the work order. In my view, considering the terms of tender and the terms of agreement as noted above, the authorities did not have the said power. Specific contingency of delay was specifically provided for in the notice inviting - 5 - tender and the agreement inter party. It is well settled that where a specific condition has been specially dealt with in an agreement then in contradiction to the general powers, the specific power has to be resorted too. If it is otherwise, then the Clause would have read that notwithstanding other action that may be taken for delayed, penalty may also be imposed. Such is not the case here. Delay has been contemplated and provided for by penalty. Thus in my view, delay being there and not in dispute, the authorities at best could have levied penalty on the petitioner but could not have rescinded the contract. There is yet another reason for holding this. As seen above, the agreement was to print specific Pass Books. If the work order is rescinded and the petitioner or his like are left with large number of Pass Books which the respondent would refused to receive on the ground of delay, it would completely ruin a person. Thus there being alternative available to the respondents either of canceling the order or accepting delayed delivery with penalty in the agreement, they choose the later. Thus they were bound to accept delayed delivery after imposing penalty of 2% as specifically provided under the agreement. Thus I find that cancellation of the work order - 6 - itself was de horse of the contract and it can not be sustained. I may also mention that the respondents were aware of this in as much as they took no step to cancel the agreement which as stated above was for full one year and the substantial part was yet to be over. The requirements of Pass Books were about thirty lakhs and only ten lakhs Pass Books had been ordered to be printed. Petitioner was entitled to get further orders but authorities did not place any further order and let the agreement expired. Now the question is to what relief the petitioner entitled to. Firstly in view of my findings above, work order(under the agreement) was cancelled de horse the agreement. The second point to be noted is that in the counter it is stated that the work order given to the petitioner was reassigned to another who had made complete deliveries. Thus if this Court were to direct respondents to accept petitioners printed Pass Books in the approved format that apparently would exceed the present requirement of respondent. Thus this relief can not be granted. However, considering the equities as the anticipated demand is much more than what has been supplied, it would be open for the respondents to accept delivery from the petitioner of the Pass Books which are ready as mentioned at Paragraph 19 of the writ application at the rate earlier quoted by the - 7 - petitioner without any enhancement if requirement be so. So far as earnest money and bank guarantee are concerned, in view of my finding above that the work order was only rescinded and not the agreement, which has by now lapsed they are liable to be refunded to the petitioner within a period of one months from the production of this order before the Chief Post Master General, Bihar Circle, respondent No. 2. The writ application thus stands disposed of. Shageer (Navaniti Prasad Singh, J)