CW 2668/98 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.2668/98 Subhash Projects & Marketing Ltd. Versus State & Ors. DATE OF ORDER : 14/05/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Anil Mehta, for petitioner Ms. Raj Sharma, for respondents *** Instant petition is directed against the order dt.13th January, 1998 [Ann.H] whereby on account of failure to execute the agreement by the petitioner in terms of NIT 2/95-96 [Ann.A], respondents forfeited 2% of earnest money which was deposited against estimated cost of work order. Petitioner is a limited Company incorporated under the Companies Act, 1956. Respondents issued NIT 2/95-96 for turnkey job of Phalodi Lift Scheme (i)(b). Petitioner also submitted his tender on 4th December, 1996 and as per conditions of tender document, he deposited 2% of earnest money. Tenders were opened on 5th December, 1996. Being L-I, the respondents accepted his lowest quoted rates [L-I] vide their communication dt.5th December, 1996 and placed the work order of Part- CW 2668/98 [2] B of Phalodi Lift Scheme PS-I for a sum of Rs.102 lacs [Ann.B]. It will be relevant to mention that for the work relating to Pumping Station No.1(B), the petitioner was the lowest quoted tenderer [L- 1], but some dispute arose between the parties and the petitioner has shown his inability to undertake work contract of PS-II – against which he preferred Civil Writ Petition No.2667/98, which has been dismissed by Single Bench of this court on 28/5/07. After acceptance of his bid, he failed to execute the agreement and sought certain clarification about work order in regard to PS-I that before he execute the agreement, it may be clarified that no recovery or deductions shall be made from the payments whatsoever became due and payable under this work order and will not be adjusted towards separate agreement executed of PS-II. It will be relevant to mention that both the two tenders were separately notified by the Government and they were in no manner inter- linked and it was because of coincidence that petitioner was L-1 in both the tenders notified which was accepted by the Government, but since the petitioner finally failed to execute the agreement. Respondents in exercise of Clause 10 CW 2668/98 [3] of the terms & conditions of agreement, cancelled its tender and at the same time forfeited the earnest money deposited by the petitioner vide order Ann.G dt.13th January, 1998. Counsel for petitioner Mr. Mehta submits that petitioner cannot be said to be at fault since he only called upon the respondents to make a clarification and confirm that they will not make any recovery or deduction from their payments/bills due under the present work order vis a vis that of PS-II and since the respondents failed to clarify its apprehension which came in the mind of petitioner, he cannot be said to be at fault for non-executing the agreement and in such circumstances, forfeiture of 2% of earnest money of the estimated cost which was deposited by the petitioner, has been arbitrarily forfeited by the respondents under order impugned dt.13th January, 1998. Respondents have filed reply to the writ petition wherein it has been averred that these being two separate contracts for which independent agreement was to be executed and the petitioner being the lowest quoted tenderer L-1 for both the two separate independent contracts CW 2668/98 [4] for PS-I & PS-II which are not inter-linked and the clarification sought by the petitioner was an afterthought since it was later on considered that execution will not be viable for the reason best known. But, the ultimate fact remains that once the petitioner has failed to execute the agreement, the respondent was justified in forfeiting their earnest money which was deposited as per terms & conditions of a tender document [Ann.A]. Counsel submits that these are otherwise disputed question of facts and what was the justification for which the petitioner failed to execute the agreement and their willingness or apprehension could not be examined by this court under limited scope of judicial review available U/Art.226 of the Constitution of India. I have heard counsel for parties and with their assistance examined the material on record. Petitioner submitted two separate tenders in regard to NIT 2/95-96 [Ann.A] for Pumping Station No.1(B) and for Pumping Station II for their turnkey job of Phalodi Lift Scheme and being L-1, tenders were finally accepted by the respondents. CW 2668/98 [5] So far as PS-II is concerned, separate agreement was executed, but a dispute arose between the parties, correspondence in this regard has also come on record in the instant petition. Petitioner challenged their action in regard to forfeiture of their earnest money. Civil Writ Petition No.2667/98 was preferred, which has been dismissed by the Single Bench of this Court on 28/5/07. It is not the case of petitioner that on account of non-executing the agreement, the respondents could not forfeit their earnest money, but thrust of the submission of counsel for petitioner is that once he sought clarification from the respondents which remains unanswered, he cannot be put to fault for non- executing the agreement. In opinion of this Court, submission is without merit for the reason that once the petitioner being lowest quoted tenderer L-1 was accepted and communication was also sent as evident from order dt.15th May, 1997, the petitioner was under an obligation to execute the agreement and if at all there was any clarification required that would have been CW 2668/98 [6] sought later. But if the petitioner for one or other reason tried to defer for executing the agreement and shifted burden upon the respondents as they failed to make clarification. Infact, there was no requirement for seeking clarification, particularly, when these were two separate tenders executed by the petitioner which were not at all inter-linked in any manner and in such circumstances, if the petitioner failed to execute the agreement, the respondents were justified as per their terms & conditions of tender document to forfeit the earnest money which the petitioner had deposited in reference to Pumping Station No.1(B). This Court does not find any error committed by the respondents in forfeiting the earnest money deposited by the petitioner. The writ petition is devoid of merit and accordingly, dismissed. [AJAY RASTOGI], J. FRBOHRA2668CW98 14-5.doc