IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 OP.No. 11555 of 2000(A) PETITIONER: P.L. JOSE, S/O. LUKOSE, PUNNAKATTU MYALIL, PERUMTHURUTHU, KALLARA, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENTS: 1. THE STATE OF KERALA, REP. BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, P.W.D. ROADS DIVISION, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENDING ENGINEER, P.W.D. ROADS DIVISION, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOTTAYAM. 5. THE EXECUTIVE ENGINEER, P.W.D. BUILDING DIVISION, DO. 6. THE EXECUTIVE ENGINEER, DISTRICT PANCHAYATH DIVISION, KOTTAYAM. 7. THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, KOTTAYAM. 8. THE EXECUTIVE ENGINEER, M.I. DIVISION, KOTTAYAM. 9. THE ASST. EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOTTAYAM. 10. THE ASST. ENGINEER, P.W.D. ROADS DIVISION, ETTUMANOOR. BY GOVERNMENT PLEADER SRI.M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 11555/2000. ----------------------------------------------------------------- EXT.P1 COPY OF NOTICE INVITING TENDERS. EXT.P2 SAMPLE FORM OF AGREEMENT. EXT.P3 LETTER DT. 30-7-1999. EXT.P4 LETTER DT. 30-8-1999. EXT.P5 LETTER DT. 30-9-1999. EXT.P6 LETTER DT. 23-9-1999. EXT.P7 LETTER DT. 1-10-1999. EXT.P8 LETTER DT. 11-10-1999. EXT.P9 LETTER DT. 1-11-1999. EXT.P10 LETTER DT. 17-11-1999. EXT.P11 LETTER DT. 2-12-1999. EXT.P12 LETTER DT. 9-12-1999. EXT.P13 PROCEEDINGS DT. 8-12-1999. EXT.P14 REPRESENTATION DT. 1-3-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 11555 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th September, 2008. J U D G M E N T The petitioner is a contractor. Pursuant to a notification inviting tenders for the privilege of collecting toll from the Mundakkali bridge in Kallara-Kaithakanal Road for the period from 1-4-1999 to 31-3- 2000, the petitioner also submitted his tender. Ext. P1 is the tender conditions. Clause 12 thereof reads thus: “12. In consideration of the tenderer being allowed to quote for the work, he should keep the tender firm for a period of four months from the date of opening the tender during which period or till the tenders are decided whichever is earlier, he will not be free to withdraw the tender. Any such withdrawal will entail forfeiture of the earnest money deposited for the work.” Pursuant to the same, no intimation was issued to the petitioner regarding acceptance of his offer. However, he was provisionally permitted to collect toll and he collected toll from 1-4-1999 to 31-5- 1999. From 1-6-1999 onwards, the road leading to the bridge was closed for repairs and therefore there was no collection of toll. The situation continued till 1-10-1999. In the meanwhile, the Executive Engineer, P.W.D Roads Division, Kottayam issued Ext. P4 intimation dated 30-8-1999 to the petitioner, which reads thus: “Tender for the above work was submitted to Chief Engineer vide reference cited. The firm period of the work was expired. Your written consent for extending the firm period may be submitted to Chief Engineer directly and intimate to this office.” In answer to the same, the petitioner informed the Executive Engineer that the firm period of the offer expired already and therefore he is not inclined to extend the firm period of offer and that he does not want to continue to participate in the tender process. There was some correspondence in the matter and ultimately by Ext. P13, the Assistant Executive Engineer, PWD Roads Sub Division, Kottayam informed the petitioner that for violation of preliminary agreement and special conditions signed by him, the contract between the O.P.. No. 11555/2000. -: 2 :- respondents and the petitioner is terminated at the risk and costs of the petitioner. It is under the above circumstances the petitioner has filed this original petition seeking the following reliefs: “1. Issue a writ of certiorari or other appropriate writ, order or direction quashing the entire Ext. P13 proceedings . 2. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to disburse the amount due under the work bill of the completed contract work of the petitioner. 3. Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to dispose of Ext. P 14 representation .” 2. The contention of the petitioner is that at no point of time, was the petitioner's offer accepted by the respondents and therefore there is no concluded contract at any time. The petitioner was bound to keep his offer firm only for the period mentioned in clause 12 of Ext. P1. It is after that period was over that Ext. P4 order was issued to the petitioner asking him for consent for extending the firm period of offer. Since the period covered by clause 12 of Ext. P1 agreement was already over, the petitioner had no obligation to keep open his offer and therefore he was perfectly entitled to withdraw from the offer, which he had already done. That being so, there was never any concluded contract between the parties without which there is no question of termination of the contract at the risk and cost of the petitioner, is the submission of the petitioner. 3. With the help of a counter affidavit filed, respondents 9 and 10 would dispute the contentions of the petitioner. According to them, even though a formal agreement had not O.P.. No. 11555/2000. -: 3 :- been entered into between the petitioner and the respondent in respect of the tender, it is undisputed that the petitioner had started collection of toll from 1-4-1999 onwards and he continued collection of the toll till the road was closed from 1- 6-1999. After having started collection, the petitioner cannot take the stand that there is no concluded contract, is the contention raised by respondents 9 and 10. Therefore, the learned Government Pleader would contend that Ext. P13 is perfectly valid and binding on the petitioner. 4. I have considered the rival contentions in detail. 5. Admittedly, there was no intimation at any time issued to the petitioner to the effect that his tender was accepted. This is abundantly clear from Ext. P4 communication dated 30-8- 1999, wherein consent of the petitioner was sought for extending the firm period of offer as contemplated in clause 12 of Ext. P1. Even otherwise, the respondents have no case that the petitioner was intimated that his tender has been accepted. The petitioner was also not directed to execute any agreement in respect of the same. As such, I am of opinion that the petitioner was perfectly entitled to withdraw from the offer in view of clause 12 of Ext. P1 and in fact, pursuant to Ext. P4, the petitioner intimated the respondents that he was not willing to extend the firm period of offer and that his offer is no longer valid. When there is no concluded contract with an acceptance of the offer of the petitioner and execution of a formal agreement signed between the parties, there is no question of termination of the agreement with or without the risk and cost on the part of the petitioner. Therefore, I am satisfied that Ext. P13 is not sustainable. O.P.. No. 11555/2000. -: 4 :- Accordingly, Ext. P13 is quashed. The respondents are directed to refund the EMD deposited by the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/