HIGH COURT OF CHHATTISGARH AT 3§LA$PUR Cmram: Hon’ble Shri Dhiremim Mishm & Han’bEe Shri RN. ahandrakw ‘3‘! Wrii Petitien No.2G54 6f 20% Patigianer Ambika Tyres, a so!e proprietory firm owned by Mohan AgrawaL aged 38 years, Son of Shri PR. Agrawai, Resident 0f Bastar Road, Dhamtari (CG) Vs. Resnonden’t Food Corporation of india, a body corporate having common seal ano perpetual succession, having its Head Office at Barakhamba Lane, Khadya Bhawan, Connaught' Piece, New Delhi and a Regionai Office at Ring Road Junciion, N H-6, Near Railway Crossing, Telibandha, Raipur 492006 (CG) \ Present: $hri Vishnu Kosta, counsel for the petitioner. Shri Yogesh Pandey, counsel for the respondent. ORAL ORDER (i 7.09.201 0) The instant writ petition is directed against ihe order of Annexure P-l dated 29.08.2002, whereby the petitioner‘s earnest money of Rs.4,40,000/- deposited along with its offer in response to tender notice S & C/13/H & TfMlsc./2001 dated 07.08.2001 has been forfeited as per provisions of Clause-3 of the tender notice. 2. in response to the tender notice dated 07.08.2001 issued by the respondentiCorporation, the petitioner quoted his offer at t255% above SOR. He also deposited a sum of Rs,4,40,000/— by way of earnest money as per conditions. The tender was opened on 31.08.2001 and the same was finalized in favour of M/s. Hora Transport Company as its offer 124596 above SOR was found to be fewest. The petitioner, vide application dated t 27.092001‘ expressed‘ its ccnseni 'w work as paralle! contractar with the new aiio’ctee 0f the wark. The respondent/Corporatmn, Vide §ts memo dated 29.08.2002, Annexure (P—1) informed the petitioner that they had quoted their offer at 1255% above 80R. However; vide its letter dated 2?.Q920015 the petitioner has resited or modified its offer, which i3 contrary to the terms and. condittons of the tender and therefore, as per conditions in the ‘ tender notice under ‘earnest money’ coiumn, earnest money is tiaioie to forfeiture. 3. Learned counsel for the petitioner submits that the tender was opened on 31.08.2001 in the presence of bidders and the same was finalized in the favour of lWs. Hora Transport Company. As per Clause—3 of the tender notice, the respondent was obliged to refund the earnest money deposited by unsuccessful bidders after decision on the tenders. However, instead of refunding of the earnest money, they have forfeited the same on the erroneous pretext that the petitioner has modified ‘ his otter in breach of the condition of the tender notices The earnest money would have been iiabie for forfeiture had the petitioner resiied from or modified his offer tiii the finaiization of the tender. Since the counter offer was submitted by the eetitioner much after the finaiization of the tender in favour of the iowest bidder, question of forfeiture of earnest money under Ciause—3 does not arise as no prejudice was caused to the respondent on account of the counter offer submitted by the petitioner. Thus, the action of the respondent is patently iiiegai and the same cannot be sustained. 4. On the other hand, learned counsel for the respondent submits that the earnest money has been forfeited as per condition No.3 of the tender notice, which empowers the Corporation to forfeit earnest money if the offerer modifies or resiles from his offer. @ /g - 5. We have heard learned counsel for the parties and perused the impugned order and memo dated 03.09.2002 sent by the respondent to the petitioner in reply to their notice. The tender was opened on 31 08.2001 and the eame was finalized in favour of lowest bidder M/s. Hora Transpon Company. lt is specifically provided under Clause-3 of the tender notice that earnest money deposited by the unsuccessful bidders shall be returned to them as soon as practicable after decision on tenders. Thus, it was the duty on the part of the respondent to return the earnest money deposited by the petitioner soon after the decision was taken in the tender. Forfeiture under Clasue-3 can be made only where the offerer modifies or resiles from his offer which creates a situation, which is prejudicial to the person inviting tenders. However, no such contingency is existing in the present CaSe. '6. in these circumstances, forfeiture of the eamest money in the garb of power under Clause-3 of the tender notice is wholly erroneous, arbitrary and iliegai. 7; Accordingly, the petition is allowed. The order impugned is set aside and it is directed that the respondent shail refund the earnest money to the petitioner after due verification. i Sd/- . i1 , .h Sd/_ DamaNDRA MISHRA R.N. Chandraka are ’y i— i i i, ii Judge Judge Priyag r ‘