Odisha Forest Development Corporation ... vs M/S Anupam Traders

3. The appellant OFDC Ltd. issued an e­tender notification dated 22.11.2016 inviting offers online from intending purchasers for advance sale of phal Kendu leaf (KL) of 2017 crop as per the ‘lots’ indicated in the notification. The private respondent had responded to the notification and made its offer. The bid was opened on 07.12.2016. The private respondent being the successful bidder was required to execute an agreement and deposit the provisional security deposit of Rs.5,00,000/­ (Rupees Five Lakh). The private respondent herein executed an agreement dated Page 3 of 26 20.01.2017. In terms of the agreement, on the actual quantity of leaves collected, the additional security deposit covering 25% of the purchase price of the lot was to be deposited before 31.05.2017. The private respondent in the instant case was therefore required to deposit the differential security amount of Rs.27,14,765/­less, the security amount of Rs.5,00,000/­ (Rupees Five Lakh) already paid.

5. At that stage the private respondent aggrieved by extension of time not being granted, filed the writ petition in W.P.(C) No.11498/2017, the same was withdrawn and a writ petition bearing W.P.(C) No.18718/2017 was filed wherein the order dated 21.08.2017 passed by the appellant cancelling the agreement dated 20.01.2017 as also the subsequent Auction Notice dated 22.08.2017, were assailed. In the said writ petition, interim order against the subsequent auction through notice dated 22.08.2017 was sought. While considering the same, the High Court while allowing the appellant to proceed with the subsequent tender process, had stayed the finalization of the sale subject to the private respondent herein depositing an amount of Rs.20,00,000/­ (Rupees Twenty Lakhs only) within one week with the appellant herein. The said order was passed on 08.09.2017 wherein it was further directed that the said amount would be kept in a separate deposit by the appellant. Page 5 of 26 The application filed by the appellant herein seeking vacation of the interim order was considered and at that stage since the vacation of the stay was not opposed by the private respondent herein, it was vacated on 28.03.2018 due to which the subsequent sale was completed on 24.04.2018. The private respondent herein thereafter sought leave to withdraw the writ petition in W.P.(C) No.18718/2017 thereby giving up the challenge to the cancellation of the auction process wherein the private respondent had taken part and also the challenge to the subsequent auction which had been conducted by the appellant. The High Court while disposing of the writ petition as withdrawn, despite objection put forth by the appellant herein directed refund of the deposit which was made pursuant to its interim order dated 08.09.2017. The appellant herein is, therefore, aggrieved by the order dated 30.04.2019 only to the extent whereby the High Court has directed refund of the amount available with the appellant.

6. The facts in the connected appeals is to the same effect except the variation in the ‘lot’ number, quantity of Kendu leaves which was purchased by each of the private respondents therein and the number of the writ petition filed before the High Court. The names of the different tenderers in the individual writ petitions that were filed and the quantum of amount ordered to be deposited by the High Court will be detailed in later part of this judgment. However, in all the cases the writ petitions have been withdrawn and the refund of the deposit ordered is directed to be refunded. In that view, the basic contention which is common, on consideration would answer all the appeals herein.

(ii) The order of termination of the agreement shall be delivered in person to the purchaser or sent by Registered/Speed Post. The termination shall be effective from the date of order terminating the agreement.

e. Recover all cost and expenses incurred for recovering loss.

14. In the above background, a perusal of the interim order dated 08.09.2017 passed in writ petition would indicate that the High Court on considering the facts and circumstances of the case has directed that the private Page 15 of 26 respondents herein deposit the amount as indicated in the order, which is shown against their respective names here below in tabular format for easy reference: ­ S.No. SLP (C) Name of the Amt. deposited No. Firm as per Interim Orders (In Rs.)

2. 18726 NABILA 15,00,000 ENTERPRISE

21. In the above circumstance, the direction to refund the amount unconditionally is not found justified and is accordingly set aside. The appellant shall issue appropriate notice(s) to the private respondents indicating details about the manner in which they computed the loss after conducting the second auction at the ‘cost and risk’ of the private respondent. On receiving response to the same, a detailed consideration be made and a speaking order be passed in that regard. The respondents are at liberty to challenge the speaking order to be passed by the appellant and the process being Page 24 of 26 pursuant to a contractual matter the private respondent if aggrieved are entitled to avail their legal remedy before the appropriate forum, in accordance with law and the entitlement of the amount will be decided therein. As per the speaking order passed by the appellant, if it is found that the loss suffered is within the amount available in deposit, appropriate adjustment should be made and the balance if any, be refunded. On the other hand, if the loss caused is found to be more than the amount in deposit, the amount available shall be adjusted and the appellant would have the liberty of initiating action for the recovery of the additional amount, if any, in accordance with law. Such procedure shall be completed within the outer limit of two months from the date on which a copy of this order is available. Until such time, the amount available in fixed deposit as ordered by the High Court shall be retained in the same position and shall not be appropriated for the benefit of the appellant. The adjustment of the amount by the appellant if made after passing the speaking order, the same shall be without prejudice to the contention of both parties and Page 25 of 26 the same shall be subject to the outcome of the proceedings in the matters where the respondents may challenge the speaking order in accordance with law.

22. Accordingly, all the appeals are allowed in part with no order as to costs. Pending applications, if any, shall stand disposed of.