IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 30449 of 2011(E) -------------------------- PETITIONER(S): --------------------- PERUMALIL GRANITE CONSTRUCTIONS, ARUNNOOTTIMANGALAM, P.O., KOTTAYAM-686604, REP. BY ITS PROPEITOR, ALEX.P.CYRIAC, PERUMALIL HOUSE, VAIKOM, KOTTAYAM-686141. BY ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENT(S): ----------------------- 1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, SOUTHERN RAILWAY HEAD QUARTERS OFFICE, CHENNAI-600003. 2. THE DIVISIONAL RAILWAY MANAGER(WORKS) SOUTHERN RAILWAY, THYCAUD.P.O., TRIVANDRUM-695014. 3. THE SENIOR DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, THYCAUD.P.O., TRIVANDRUM-695014. ADV. SRI.JOHN MATHEW,SC, RAILWAYS FOR R1 TO3 SRI.C.S.DIAS, SC FOR RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.30449/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1TRUE COPY OF THE RELEVANT PORTION OF THE TENDER NOTICE AND INSTRUCTIONS TO BIDDERS WITH BID VALIDITY PERIOD OF 90 DAYS. EXT.P2TRUE COPY OF THE LETTER OF THE PETITIONER EXTENDING THE BID VALIDITY PERIOD UP TO 27-1-2010. EXT.P3TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT TO THE PETITIONER TO ATTEND FOR NEGOTIATION ON 25-2-2010. EXT.P4TRUE COPY OF LETTER OF THE PETITIONER REQUESTING RELEASE AND RETURN OF EMD OF RS. 267,555/- EXT.P5TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT ILLEGALLY FORFEITING THE EMD OF RS. 2,67,555/- EXT.P6TRUE COPY OF REPRESENTATION OF THE PETITIONER TO THE 2ND RESPONDENT REQUESTING REFUND OF THE EMD OF RS.2,67,555/- EXT.P7TRUE COPY OF REPRESENTATION OF THE PETITIONER TO THE 2ND RESPONDENT REQUESTING REFUND OF THE EMD OF RS.2,67,555/- WITH INTEREST. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 30449 OF 2011 ===================== Dated this the 29th day of November, 2011 J U D G M E N T By Ext.P1 tender notice issued by the respondents on 27.5.2009, tenders were invited. Along with his EMD of `2,67,555/-, petitioner submitted his tender. The tender conditions provided that the tender submitted shall be valid for 90 days from the date of opening of the tender, ie 30/6/09. As a result, the tender remained valid till 30/9/09. It is also to be stated in this context that as per the tender condition, extension of the validity period of the tender can also be only by mutual agreement. Subsequently by Ext.P2 letter of the petitioner dated 1/1/2010, he agreed for extension of the validity of his offer till 27/1/2010. Thereafter, there has not been any extension of validity period by mutual agreement. 2. Till this point, there is no dispute on facts even by the respondents. Subsequently, by Ext.P3, petitioner was called for a negotiation, which was scheduled on 25/2/2010. However, the petitioner did not attend the said meeting. Subsequently, by Ext.P4 letter dated 5/3/2010, the petitioner requested for refund WPC No. 30449/11 :2 : of the EMD. However, that request of the petitioner was not complied with and on the other hand, by Ext.P5 dated 16/4/2010, his EMD was forfeited. Petitioner requested for refund of the EMD by filing Exts.P6 and P7, which was not conceded and therefore this writ petition has been filed. 3. Thus, the case of the petitioner is that beyond 27/1/2010, his tender was not valid and it is stated that since the contract was not concluded within the validity period and no final decision in the matter was taken, he is entitled to have his EMD refunded. 4. However, learned counsel for the respondents though accepts that subsequent to Ext.P3, there was no mutual agreement for extending the validity of the tender and according to him, the Railways proceeded on the assumption that the petitioner agreed for keeping the tender valid even thereafter. Therefore, he says that the forfeiture is valid. 5. However, I am unable to accept the contention of the Railways. As already seen, as per the tender conditions, extension of the tender can only be on mutual agreement. If that be so, when the period of extension as per Ext.P2 expired, there is WPC No. 30449/11 :3 : absolutely no basis for the Railways to assume that the petitioner had agreed for keeping the tender valid. Consequently, the Railways could not have forfeited the EMD submitted by the petitioner and the EMD is liable to be refunded to him. This the respondents shall do within four weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp