IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6016 of 2008 M/S NIKHIL ENGICON WORKS THROUGH ITS PROPRIETOR RAVI KANT DUBEY S/O HANS LOCHAN DUBEY, HAVING ITS OFFICE AT 508, RADHA KRISHNA COMPLEX R.K. BHATTACHARYA ROAD, PS-GANDHI MAIDAN, DISTT- PATNA R/O FLAT NO. 807, LOTUS APARTMENT B BLOCK ROAD NO. 1F NEW PATLIPUTRA COLONY PO & PS LATLIPUTRA PATNA ------------PETITIONER Versus 1. THE BIHAR STATE FINANCIAL CORPORATION THROUGH ITS MANAGING DIRECTOR, FRASER ROAD, PATNA 2. THE MANAGING DIRECTOR, BSFC, FRASER ROAD, PATNA 3. MANAGER I/C (ZONE –V) BSFC, FRASER ROAD,PATNA--------- --------------------------RESPONDENTS ----------- For the Petitioner: Mr. Amit Srivastava, Advocate Mr. Girish Pandey, Advocate For the Respondents: Mr. V.K.Tripathy, Advocate. ------------ 4 19.5.2010 The long story which emerges out from this writ application has to be cut short in view of the limited dispute which has been raised by the petitioner. The property known as M/s Caydee Engineers Private Limited located at Industrial Area, Patliputra, Patna was put on sale. The unit in question was advertised under continuous sale policy of the Corporation on 25.6.1995. There was no suitable buyer for many a years but only some time in the year 2007 petitioner approached Bihar State Financial Corporation with an offer to purchase the said property for a sum of Rs. Rs. 43 lakhs. Petitioner had also deposited a sum of Rs. One lakh as earnest money to participate in the tender. On 15.5.2007 a negotiation was held and the terms and conditions for the sale was discussed. It is the contention of the petitioner that they were taken by surprise when he was informed by the Managing Director of BSFC that the offer made by him is a conditional acceptance because the Corporation is - 2 - going to re-advertise the unit looking for a higher price. They wanted to have yet another go to the market for getting better return on the sale. The advertisement was issued which is dated 9.6.2007 and is annexure-3 to the writ application. The same did not get a better price for the Corporation therefore they decided to issue sale order with certain terms and conditions to the petitioner, which would be evident from annexure-5 dated 26.7.2007. The petitioner was informed by that letter that he will have to deposit money in accordance with the terms and condition of the sale order. There was failure on the part of the petitioner to deposit 25% of the total consideration price i.e. Rs. 10.75 lakhs which led to issuance of annexure-1dated 28.9.2007 to the writ application. By virtue of this decision petitioner’s earnest money of Rs. One lakh has been forfeited. The petitioner therefore decided to challenge this order in the present writ application. Learned counsel for the petitioner submits that annexure-1 smacks of arbitrariness and the respondents have unfairly treated the petitioner by forfeiting the earnest money when the default lies at their door step. The respondents cannot be permitted to gain at the cost of the petitioner when the petitioner on the very first occasion communicated his decision to opt out of the race or the bid for the property vide letter dated 30.5.2007. Letter dated 30.5.2007 categorically informed the Managing Director of BSFC that he was taken by surprise when the Corporation informed him that they are going for re- - 3 - advertisement for re-sale and only when they will fail to get better price they will consider the offered of the petitioner. This aspect was not reflected either in the advertisement of the year 1995 or the tender document. Petitioner therefore decided to withdraw his offer because he did not want to deal with the respondents with a sense of uncertainty in the background that the respondents wanted to go for re-advertisement. There is nothing on record to show that the respondents Managing Director took cognizance of the communication dated 30.5.2007. The Corporation had gone ahead with their plan and advertised the unit and only when no suitable buyer turned up they decided to issue the sale order contained in annexue-5 dated 25.7.2007. Learned counsel for the petitioner further submits that before sale order could be issued there were at least two to three communications which have been made with the Corporation reiterating their earlier stand that in view of the decision of the respondents to go for re-advertisement they have already expressed their desire to withdraw and they demanded refund of the earnest money but the request of the petitioner was not acted upon. The respondent authority went ahead with various communications and tried to bring liability upon the petitioner which he was not willing to honour in light of past communications. In the counter affidavit the respondents have tried to justify their action. It is the stand of the Financial Corporation - 4 - that the Corporation was duty bound to look for better offer, more so since the petitioner had given an offer after many years of the advertisement first issue in the year, 1995. Petitioner was clearly informed by the Corporation during the course of negotiation that he has to wait for the issuance of sale letter subject to re- advertisement and response thereto. When the sale letter was issued to the petitioner after the Corporation failed to beget any buyer the petitioner failed to deposit requisite money within the time frame. The question which requires consideration is whether the petitioner can be bounded down to the offer even without an acceptance by the respondents Financial Corporation. Any contract is based on an offer and acceptance and only then it can be treated to be a concluded contract. From the pleading it is evident that there was an offer by the petitioner but there was no corresponding acceptance by the respondent Corporation. In fact, their acceptance if at all was a conditional offer, subject to finding suitable buyer on the basis of re-advertisement. If that was so then the petitioner had a right to withdraw from the offer and the respondent Corporation cannot say that there was an obligation on the petitioner to carry out the contract in terms of the offer made by him. A plain application of the principle of contract would demonstrate that the petitioner immediately withdrew his initial offer because of the conditionality and is borne out by the - 5 - earlier communications in this regard which is annexure-2 dated 30th May, 2007 followed by many letters of the similar kind. It is clear from above that the failure was on behalf of the Corporation and not on behalf of the petitioner. If that is so then the respondent Corporation has erred by forfeiting the earnest money of the petitioner. It is taking a premium of their failure which this Court can not certify within the parameter of law. Annexure-1 dated 28.9.2007 is hereby quashed. The respondents Bihar State Financial Corporation are hereby directed to refund the security money of the petitioner within a period of four weeks from date of the production of the copy of this order. This writ application is allowed with the above direction. RPS (Ajay Kumar Tripathi,J.)