IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4783 of 2009 M/S SHIV TRADERS, Meerut Road, Muzaffar Nagar – 251003 (UP), Local office at Laheria Bazar, Town and PS – Dalsingsarai, District – Samastipur (Bihar) through authorized agent Sri Kumar Digvijay , son of Shri Maganlal Sah, at Laheria Bazar, Town and PS – Dalsingsarai, District – Samastipur (Bihar). Versus 1. THE EAST CENTRAL RAILWAY through its General Manager, Hajipur. 2. The Controller of Stores, East Central Railway, Biscomaun Bhawan, Patna. 3. The Chief Manager, East Central Railway, Hajipur. 4. The Dy. Material Manager (Depot), East Central Railway, Samastipur, Bihar. ----------- For the petitioner : M/S. Abhay Shanker Singh and Amit Kr. Mishra. For the respondents: Mr. A K Keshari. --------- 03. 22.04.2010 Petitioner was one of the auction bidders for purchase of scrap to be sold by the East Central Railway by virtue of annexure-1. Auction sale was held on 14.7.2008. 10 per cent of the money was deposited by the petitioner. The balance amount was to be paid by him within the extended time frame and if not, with interest on further extension to be granted in this regard. Petitioner was granted time till 1.9.2008 but the deposit was made by the petitioner on 25.8.2008 itself. It is the case of the petitioner that no delivery order could be issued in his favour and he could not lift the goods within the time frame which was fixed as 1.9.2008. It was in this context that he prayed for time by way of annexure-6 to extend the period for lifting the goods by another 40 days without charging any ground rent. When no response was received from the respondent railway authorities, petitioner decided to write further letters contained in annexures 7, 8 and 9 2 seeking refund of his money and expressing his disinterest in lifting the auctioned scrap any further. Nothing happened on the issue till 24th December, 2008. Thereafter, the petitioner approached the High Court since respondents failed to act upon his request. The first submission of the counsel is that his case is covered by the decision rendered in the case of M/S. Shanti Steels v. East Central Railway and others, 2009 (4) PLJR 597. Counsel further informs the Court that the said decision of the learned single Judge has been affirmed in the LPA filed by the Railway in this regard by order dated 22.12.2009. Counsel for the petitioner submits that after the deposit was made by him of the entire amount on 25.8.2008, he should have been given a delivery order forthwith. Since no delivery order was handed over to him there could be no occasion for him to lift the goods on 1.9.2008. In terms of various clauses of the agreement petitioner was aware that if he did not lift the goods by the fixed date, he will have to pay ground rent. It was under these circumstances that petitioner wrote a letter contained in annexure-6 seeking 40 days extension for lifting the goods without payment of ground rent. But then there was no response on behalf of the Railways to the request and keeping in mind that the Railways were not willing to accede to the request of the petitioner any more, he decided to write subsequent letters contained in annexure 7, 8 and 9 for refund of his earnest money 3 and deposit. It is his case that only after the writ application was filed, in the counter affidavit the so-called letter contained in Annexure-D has been created and a delivery order contained in Annexure-E came to be issued. Petitioner denies in the rejoinder that he has received any of these two communications. According to him, this was done only to defeat the case or claim of the petitioner. Counsel for the Railways submits that the petitioner himself made request for extension of time to lift the goods which would be evident from the communication contained in Annexure-C dated 1.9.2008. After the extension was granted by the Railways bonafidely then petitioner could not turn around and make grievance that no delivery order was issued to him prior to the said date and which entitles him to claim refund. There is some force in the submission made on behalf of the counsel for the Railways but the same has also to be viewed in light of the fact that prayer made by the petitioner for extension of 40 days was not responded to. There is nothing on record to show that after the expiry of 40 days or prior to the expiry of 40 days, any delivery order had been issued to the petitioner. There is no explanation as to why delivery order was issued only on 24.12.2008 and not prior to the expiry of the request or even soon thereafter. Obviously there is a failure on the part of Railways as well in meeting the obligation with regard to the 4 tender in question. No doubt some request for extension was made by the petitioner but that request should have been entertained and acted upon within the terms of the request or extension. Petitioner has made out a case for interference. Keeping in mind the ratio and rationale used in the decision rendered in the case of M/S. Shanti Steels (Supra), the Court directs refund of earnest money and the total sale value deposited by the petitioner within a period of eight weeks from the date of communication / production of a copy of this order. The writ application stands allowed. rkp ( Ajay Kumar Tripathi, J )