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2001 DIGILAW 191 (JK)

Puran Chand v. State Of J. &K.

2001-09-10

T.S.DOABIA

body2001
1. There was infact two tenders. The petitioner deposited a sum of Rs. 50,000/- each as security. This security was meant for carrying out the terms and conditions of the contract in the event of tenders being accepted. It is not in dispute:- i) that the tenders were submitted; ii) that the tenders were to be opened on 03-03-1998; iii) that on 03-03-1998, immediately after the tenders were opened, the petitioner submitted that there was a clerical error in the matter of mentioning the rates and that one zero has not been indicated. The figure in this regard was Rs. 1,775/- per M. ton. It was pointed out to the respondents that the correct figure should be Rs. 17,775/- per M. ton. A written application was filed on that very date. This was done before the tenders were accepted. This is with regard to tender No. NIT No: 44 of 1/98; and iv) with regard to tender No. NIT No: 45 of 1/98, there was again an omission to make mention of zero. The figure in this was Rs. 1,800/- per M. ton. The petitioner wanted a zero to be added. A written application was filed before the tender could be accepted. The further fact is that tenders were accepted on 21-05-1998, vide annexure H & ˜J™ with the petition. 2. Before proceeding further it would be apt to notice the application which was submitted by the petitioner. This is dated: 03-03-1998 i.e. application said to have been filed when tenders were opened. For facility of reference this is reproduced below:- "To The Chief Engineer, Civil Construction Wing, PDCM Jammu. Sub:- Cover-II, Tender (Price-Bids) for the work: construction of Sudhan Nallah cum Diversion Channel from RD 15-158 of Sewa Hydel Project Stage-Ill. Ref:- Our tender offer for above noted work against NIT No: 44 dated: issued by the Executive Engineer. Sewa Hydel Project Division-Ill, Basohli. Sir, Kindly treat Rs. 17,750/- (Seventeen thousand seven hundred fifty) only against Rs. 1,775/- (One thousand seven hundred seventy five) only quoted in the tender for above noted work against steel item and comparative statement may be prepared accordingly and obliged. Yours faithfully Sd/- Puran Chand Contractor R/o 369, Shakti Nagar, Jammu Dated: 03-03-1998. The letter of acceptance is annexure H. This is also reproduced below:- "OFFICE OF THE CHIEF ENGINEER CIVIL CONSTRUCTION W ING P.D.C. 18-C/C, GANDHI NAGAR, JAMMU. Yours faithfully Sd/- Puran Chand Contractor R/o 369, Shakti Nagar, Jammu Dated: 03-03-1998. The letter of acceptance is annexure H. This is also reproduced below:- "OFFICE OF THE CHIEF ENGINEER CIVIL CONSTRUCTION W ING P.D.C. 18-C/C, GANDHI NAGAR, JAMMU. To Shri Puran Chand, Contractor, S/o Sh. Dhani Ram R/o 369, Shakti Nagar, Jammu Sub:- Construction of Diversion cum Spillway of Sewa on Sudha Nallah from RD. 15-158 of Sewa Hydel Project Stage-Ill. Ref:- Your application No: Nil dated: Nil received in this office on 09-05-1998 Dear Sir, Please refer your above quoted letter. A report was called for on the same from the concerned Executive Engineer which has been duly considered in this office as well. Accordingly, it is to inform you that you are the lowest bidder/tenderer in the section in question and allotment issued in your favour vide No: CCW-J/49/307-09 dated: 30-04-1998 shall therefore stand. You are as such advised to start the work immediately failing which appropriate action shall be taken by this Corporation without any further reference to you. Needless to add that precious time of the Project is getting lost which will effect the completion schedule of the Project. Yours sincerely Sd/- Chief Engineer Civil Const. Wing PDC, Jammu." The stand taken by the respondents is that acceptance vide annexure H is without taking into consideration the letter dated: 03-03-1998 reproduced above. 3. The law is well settled that be fore an offer is accepted the person making the offer can withdraw the same. He could have also suggested modification in this regard. This is precisely what was done in this case. The petitioner was ready and willing to comply with the contractual obligation in terms of the modification noticed above. This was, however, not done. Instead the respondents have resorted to enforce the clause of forfeiture. A sum of Rs. 50,000/-towards each contract has been forfeited. 4. I am of the opinion that respondents are not well within their rights to resort to the forfeiture clause. In this view of mine, I am supported by the view expressed by the Delhi High Court in a case reported as M/s Suraj Basan and Rice Mills Vs. Food Corporation of India, AIR 1988 Delhi 224. 4. I am of the opinion that respondents are not well within their rights to resort to the forfeiture clause. In this view of mine, I am supported by the view expressed by the Delhi High Court in a case reported as M/s Suraj Basan and Rice Mills Vs. Food Corporation of India, AIR 1988 Delhi 224. It was observed that a person can withdraw or modify his offer or tender before communication of the acceptance is complete as against him that is before its acceptance is intimated to him. The Government by merely providing a clause to the contrary in the tender notice could not take away the legal rights of a person. 5. In the aforementioned case, reliance was placed by Delhi High Court on a decision given by the Madhya Pardesh High Court in a case reported as Rajendra Kumar Verma Vs. State of Madhya Pardesh AIR 1972 MP 131. An unreported decision of the Division Bench of the Delhi High Court has also been taken note of. What is stated in paras 9 and 10 are reproduced below:- "9. In Rajendra Kumar Verma Vs. State of Madhya Pardesh (AIR 1972 Madh Pardesh 131) (supra) it has been held that a person who makes an offer is entitled to withdraw his offer or tender before its acceptance is intimated to him. The Government by merely providing a clause to the contrary in the tender notice could not take away the legal rights of a person. 10. In view of the law laid down by the Division Bench of this Court in R.F.A. 24-D/l 960 Union of India Vs. Sh. Rajender Prasad Jain, I hold that under law plaintiff was entitled to withdraw or modify their offer before the communication of the acceptance was complete as against the plaintiff. Thus, the letter dated July 8, 1993, amounted to the modification of the offer. I accordingly hold that acceptance issued by telegram dated July 22, 1983 did not result in a concluded agreement between the parties as there was no offer in existence at the time when defendant accepted tender of plaintiff." 6. Reliance has also been rightly placed on the Division Bench of Gauhatis decision in a case reported as Abdus Salam Choudhary Vs. The State of Assam and others, AIR 1991 Gauhati9. Reliance has also been rightly placed on the Division Bench of Gauhatis decision in a case reported as Abdus Salam Choudhary Vs. The State of Assam and others, AIR 1991 Gauhati9. The law laid down is that a tenderer has a right to withdraw his tender be fore it is accepted. In this case the petitioner had suggested a modification of the original terms. If the tender was to be accepted then this should be accepted with this offer. This has never happened in this case. In this situation the petition is allowed. The respondents would refund the amount. This would de done within one months from the date, a copy of the order passed by this Court is made available by the petitioner to the respondents and also to the counsel for the respondents who has put in appearance today. In case payment is not made within the stipulated period then the petitioner would be entitled to interest at the rate of 12%.