:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.75 OF 2008 APPEAL FROM ORDER NO.75 OF 2008 APPEAL FROM ORDER NO.75 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.88 OF CIVIL APPLICATION NO.88 OF CIVIL APPLICATION NO.88 OF 2008 2008 2008 Uday Pralhad Mane ...Appellant. v. The Commissioner, The Municipal Corporation of the City of Thane ...Respondents. Mr.Rajesh S. Datar , adv. for the Appellant. Mr.R.S.Apte , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 24th March, 2008. DATE: 24th March, 2008. DATE: 24th March, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the parties. 2. Appellant is the original plaintiff. Respondent/Municipal Corporation had invited tenders for the implementation of pay and parking scheme within the city of Thane. As per the resolution passed on 6-10-2005 by the general body of the Corporation, pay and parking lots were divided into five groups. The plaintiff/appellant submitted tenders and in respect of two groups no.2,4 and 5, his quotation was found to be highest. He offered to pay tender amount in three instalments. However, the Municipal Corporation called him for a meeting and thereafter on 4-3-2006, the Municipal Corporation gave letter to him to re-arrange the payment schedule as per the letter dated 4-3-2006 to :2: which the plaintiff agreed. Thereafter, the Municipal Commissioner submitted a proposal to the standing committee for approval. Standing Committee passed the resolution dated 29-6-2006 and accepted the tender subject to payment schedule fixed by the standing committee. However, that payment schedule was not acceptable to the plaintiff and therefore, work order was not given to him. On 4-9-2007 an advertisement was issued by the respondent/Corporation inviting fresh tenders in respect of said groups under the Pay and Parking scheme. The plaintiff filed the suit challenging the issuance of said advertisement and by application Exhibit 5, the plaintiff sought direction to restrain the respondent/Corporation from taking any steps in furtherance of the tender notice dated 4-9-2007. According to him as his tender was highest and it was accepted, the contract was concluded. The contract was for a period of three years and, therefore, pending the said contract period, the defendant/Corporation could not refuse to give work order to him and could not call fresh tenders. 3. The application was contested by the Municipal Corporation. As per the reply Exhibit 13, besides challenging the tenability of the suit, the Corporation also contended that even though the quotation of the plaintiff for the groups 2,4 and 5 under the Pay and Parking Scheme was highest still there was no agreement :3: as to how the tender amount should be paid over the three years period and as such, it was only at the negotiation stage. The proposal made by the plaintiff initially was not acceptable and, therefore, the Municipal Commissioner had made a suggestion to the plaintiff. When the Municipal Corporation submitted the proposal to the standing committee for approval, the standing committee came forward with a fresh schedule about the payment in the financial interest of the Municipal Corporation. As the plaintiff was not willing to accept that, no contract was concluded and as such, the plaintiff can not get any right to get the work order. A long period has been wasted in the negotiation and as the plaintiff had not entered into a contract, the Municipal Corporation was required to issue fresh notice calling the tenders. It was contended that in view of these circumstances, plaintiff had no legal right and the balance of convenience was not in favour of plaintiff. If the temporary injunction is granted, it may cause inconvenience and irreparable loss to the Municipal Corporation. 4. After hearing the parties, the learned trial Court came to conclusion that there was no concluded agreement between the parties and the balance of convenience is not in favour of the plaintiff. The learned trial Court also noted that if the Corporation is restrained from inviting tenders, it may cause loss :4: of revenue and, therefore, balance of convenience is not in his favour. In the result, application exhibit 5 came to be rejected. 5. The learned counsel for the parties have taken me through several documents, which were relied upon by the parties before the trial Court. Admitted facts are that the plaintiff/appellant had quoted following rates and payment schedule for the different pay and parking groups. Group No. First year Second Year Third Year Total 2 2,00,000 3,00,000 09,50,000 14,50,000/- 4 3,00,000 4,00,000 24,50,000 31,50,000/- 5 3,00,000 4,00,000 24,00,000 31,00,000/- It appears that as per this schedule, the plaintiff had offered to pay small amount during the first and second year of the contract and large amount was to be paid during the third year. Infact, in respect of Group No.2, almost 2/3rd amount was to be paid during the third year. In respect of Group No.4 and 5 he had proposed to pay almost 80% of the contract money during the third year. This was not acceptable to the Municipal Corporation and, therefore, by letter dated 2nd March, 2006, the plaintiff was requested to attend the meeting in the office of Deputy Commissioner :5: (Encroachments) on 4th March,06 at 4.30 p.m. It appears that after the meeting the Municipal Corporation gave letter dated 4-3-2006 requiring the plaintiff to re-arrange the payment schedule as follows: Group No. First Year Second Year Third Year 2 04,17,566 04,80,202 05,52,232 4 09,07,127 10,43,197 11,99,676 5 08,92,729 10,26,637 11,80,634 Plaintiff did not accept this and by letter dated 9-3-2006, he proposed following schedule about the payment: Group No. Amount to be Amount to be Amount to be deposited deposited deposited during the during the during the First Year Second Year Third Year 2 2,90,000 5,07,500 6,52,500 4 6,30,000 11,02,500 14,17,500 5 6,20,000 10,85,000 13,95,000 After receipt of this proposal from the plaintiff, the Municipal Commissioner placed the matter before the Standing Committee for approval. Taking into consideration all the pros and cons of the matter and the financial interest of the Municipal Corporation, the :6: Standing Committee passed the Resolution No.438 on 29-6-2006 and resolved to accept tender of the plaintiff subject to his acceptance of the following payment schedule: Group Total Amount to be recovered during No. Amount First Second Third Year Year Year ---------------------------------------------------------------- 2 14,50,000 4,50,000 4,50,000 5,50,000 4 31,50,000 10,00,000 10,00,000 11,50,000 5 31,00,000 10,00,000 10,00,000 11,00,000 6. This was never accepted by the plaintiff nor the contract was given to him. If the payment schedule suggested by the Standing Committee is looked into, it will be clear that the amount was proportionately distributed in three years and it would be in the interest of the Corporation, particularly to protect and secure payment from the plaintiff. If the proposal of the plaintiff would have been accepted, he would be required to pay small amount during the first year and some amount in the second year and huge amount was to be paid during the third year and if he would fail to make payment during the third year, it would become difficult for the Municipal Corporation to recover the contract :7: amount from the plaintiff. Therefore, payment of the contract money was re-scheduled but as it was not accepted by the plaintiff naturally contract was not entered into. It is material to note that for more than one year after that plaintiff was keeping silent and he rushed to the Court when the fresh tender notice was issued on 4-9-2007. 7. From the above circumstances, it is clear that even though the tender of the plaintiff was the highest, the contract was at the stage of negotiations particularly about payment schedule and as that was not accepted by the plaintiff, it must be held that the contract was never concluded nor it was entered into between the parties. Therefore, it is difficult to hold that there was concluded contract between the parties and the Municipal Corporation is bound by that contract. 8. Section 243A makes a provision about the charges to be levied by the Municipal Commissioner in respect of parking or halting lots. As per Section 243A(2), the Commissioner may charge such fees or charges from any person for the use of such place or lot by him for parking or halting a vehicle, subject to such terms and conditions as the Commissioner may think fit, with the approval of the Corporation. Corporation naturally means General Body of the Corporation. In the present case, there is no dispute that the Commissioner had :8: called tenders after approval of the Municipal Corporation as the amount involved in each lot was more than 10 lakhs, the Commissioner was expected to seek approval of the Standing Committee. As pointed out above, the proposal was placed before the Standing Committee and the Standing Committee accepted the tender subject to modification in respect of payment schedule. In view of the facts and circumstances noted above, it is difficult to disagree with the trial Court that the plaintiff has not made out any prima-facie case and if the temporary injunction is granted, it will cause revenue loss to the Municipal Corporation and, therefore, balance of convenience is in favour of the Corporation and not the plaintiff. I am unable to find any fault with the impugned order passed by the trial Court. 9. In the result, appeal stands dismissed. 10. As the appeal itself is disposed off, nothing survives in the civil application and it stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)