Supreme Court of India Global Energy Ltd. & Anr vs M/S Adani Exports Ltd. & Ors on 3 May, 2005 Equivalent citations: AIR 2005 SUPREME COURT 2653, 2005 AIR SCW 2875, 2005 (4) SLT 196, 2005 (6) SRJ 213, (2005) 5 JT 121 (SC), 2005 (2) ALL CJ 1320, 2005 (4) SCALE 551, 2005 (1) CTLJ 259, 2005 (4) SCC 435, 2005 ALL CJ 2 1320, (2005) 4 ALLMR 950 (SC), (2005) 2 CLR 63 (SC), (2005) 5 ALL WC 4759, (2005) 3 PAT LJR 69, (2005) 5 SCJ 142, (2005) 4 SUPREME 215, (2005) 4 CIVLJ 1, (2005) 4 SCALE 551, (2005) 2 WLC(SC)CVL 30, (2005) 3 JLJR 21, (2005) 2 CURCC 248 CASE NO.: Appeal (civil) 2988 of 2005 PETITIONER: Global Energy Ltd. & Anr. RESPONDENT: M/s Adani Exports Ltd. & Ors. DATE OF JUDGMENT: 03/05/2005 CJI R.C. Lahoti & G. P. Mathur JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (C) No.7024 of 2005) With Civil Appeal No. of 2005 (Arising out of SLP (C) No.7032 of G. P. MATHUR, J. Leave granted. 2. These appeals have been preferred against the judgment and order dated 21.3.2005 of a Division Bench of Calcutta High Court by which the appeals preferred against the interim order passed by a learned Single Judge on 15.3.2005 were allowed and the interim directions contained in the said order were set aside. 3. The West Bengal State Electricity Board (for short 'Electricity Board') issued a notice on 8.3.2005 inviting tenders (for short NIT) for sale of its surplus power to different State Electricity Boards or Power Utilities on short term basis through Power Trading Agencies. Paragraphs 1 and 5 of the notice, which are relevant for the decision of controversy in hand, are being reproduced below : "1. Sealed tenders are invited by the Chief Engineer, Central Commercial Department, West Bengal State Electricity Board, Vidyut Bhawan, 8th Floor, BlockA, Bidhannagar, Kolkata 700 091 from experienced and interested Traders and Business Enterprises having Power Trading License or Clearance from the Central Electricity Regulatory Commission for export of following approximate quantum of power. 5. Mode of deposit of Earnest Money : 5.1 Every quotation must accompany 'Earnest Money' in the form of Demand Draft or Pay Order drawn on any Scheduled Bank of India in favour of West Bengal State Electricity Board payable at Kolkata amounting to Rs.30,00,000.00 (Rupees thirty lakh) only. The Central/State Government Organization(s) and CPSU(s)/PSU(s) are exempted from submission of Earnest Money. 5.2 Earnest Money shall be refunded to the successful bidder only after opening of irrevocable and revolving LC by the successful bidder and commencement of supply as per Payment Security Mechanism Clause. Earnest Money shall be refunded to the unsuccessful bidder after finalization of Tender. 5.3 No interest shall be paid by WBSEB on Earnest Money." 4. Global Energy Ltd. and H. Dhaul, the appellants herein, filed a writ petition in the Calcutta High Court on 14.3.2005, where the principal relief claimed was that the Electricity Board be restrained from enforcing the condition requiring deposit of Rs.30 lakhs as earnest money in respect of the aforesaid tender and an injunction may be issued directing the Electricity Board to accept and evaluate their bid without requiring deposit of Rs.30 lakhs as earnest money. The plea taken in the writ petition was that the impugned condition for deposit of earnest money of Rs.30 lakhs by licensed traders and not by Central/State Government Organizations and Public Sector Undertakings showed undue favour to them. It was further pleaded that the said condition was not only discriminatory but was also contrary to express mandate of Electricity Act, 2003 and, therefore, the same was liable to be struck down. The writ petition was taken up for admission hearing by a learned Single Judge on 15.3.2005 and the following order was passed on the same day: "The petitioners herein have challenged the action of the respondent authorities regarding publication of the notice inviting tender and also the condition regarding deposit of earnest money by the intending tenderers on various grounds mentioned in the writ petition. According to the petitioners, the respondent authorities hereto have shown undue favour to the public sector undertakings by granting exemption from submitting the earnest money. Having heard the learned counsel appearing on behalf of the parties and considering the facts and circumstances of this case, I am of the view that this petition should be decided only after filing of affidavits. Accordingly, respondents are directed to file affidavitinopposition within three weeks from date. Reply thereto, if any, be filed within a week thereafter and let this matter be listed for hearing four weeks hence. Let there also be an interim order by granting liberty to the petitioners t