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2012 DIGILAW 716 (MP)

Ashok Kumar Raghuvanshi v. State of M. P.

2012-07-16

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
JUDGMENT Shri N. S. Kirar, Advocate for the petitioner. Shri Raghvendra Dixit Government Advocate and Smt. Nidhi Patankar, Deputy Government Advocate for the respondents no.1 to 4- State. Shri Yogesh Chaturvedi, Advocate for the respondent no.5. The petitioner has filed this petition praying for a direction to the respondents to the effect that the FDRs submitted by the petitioner, be accepted and also praying for issuance of any other relief as this Court may deem fit. The respondent no.2 published NIT on 13-03-2012 in regard to construction of connecting Road under M. P. Rural Road Development Scheme. By the aforesaid notification, the bids were invited. The petitioner submitted its bid for six packages. One of the condition in the bid document was that Earnest Money Deposit in the shape of F.D.R./S.T.D.R/Call Deposit Receipt issued by Nationalized/Scheduled Bank located in India. The relevant condition is as Condition No.6 which is a part of Annexure P/2 filed by the petitioner. The aforesaid condition is as under:- “6. Earnest Money Deposit in the shape of F.D.R./S.T.D.R./Call Deposit Receipt issued by Nationalized/ Scheduled Bank located in India or Bank Draft of any Nationalized/ Scheduled Bank located in India payable at Local Bank at Bhopal(MP) in favour of Executive Engineer of concern Division, RES, Madhya Pradesh shall only be accepted.” The petitioner submitted its bid. However, it had deposited the FDRs [Fixed Deposit Receipts] issued by Jila Sahakari Kendriya Bank Maryadit, Guna. Consequently, the tenders of the petitioners were rejected vide order dated 28-04-2012 (Annexure P/5) on the ground that FDRs (Fixed Deposit Receipts) submitted by the petitioner, were not issued by Nationalized/Scheduled Bank. During the pendency of the petition, this Court vide order dated 02-05-2012 directed to maintain status quo and it was continued subsequently also. In the meanwhile, one tender was awarded in favour of the respondent No.5 M/s. Superian Construction. The respondents No. 1 to 4 in the return submitted that bid of the petitioner was rejected on the ground that the petitioner did not submit FDRs issued from Nationalized/Scheduled Bank which was a condition precedent for submitting the bid. It is an admitted fact that the petitioner deposited FDRs (Fixed Deposit Receipts) issued by District Central Cooperative Bank. The Bank is a not a Nationalized/ Scheduled Bank. It is an admitted fact that the petitioner deposited FDRs (Fixed Deposit Receipts) issued by District Central Cooperative Bank. The Bank is a not a Nationalized/ Scheduled Bank. However, whether it is a Scheduled Private Bank or not, for the purpose of this, a list has been filed as Annexure R/2 and the followings are list of acceptable banks: LIST OF ACCEPTABLE BANKS Scheduled Commercial Bank SBI and Associates 1. State Bank of India 2. State Bank of Bikaner and Jaipur 3. State Bank of Hyderabad 4. State Bank of Indore 5. State Bank of Mysore 6. State Bank of Patiala 7. State Bank of Saurashtra 8. State Bank of Travancore Scheduled Private Banks (India Banks) 1. Bank of Rajasthan 2. Bharat Oversea Bank Ltd. 3. Jammu & Kashmir Bank Ltd. 4. Karur Vysya Bank Ltd. 5. Vyshya Bank Ltd. 6. UTI Bank 7. INDUS SIND Bank Ltd. 8. ICICI Bank 9. HDFC BANK Ltd. 10. Development Credit Bank Ltd. 11. IDBI Bank Ltd. Nationalized Bank 9. Allahabad Bank 10. Andhra Bank 11. Bank of India 12. Bank of Maharashtra 13. Canara Bank 14. Central Bank of India 15. Corporation Bank 16. Dena Bank 17. Indian Bank 18. Indian Overseas Bank 19. Oriental Bank of Commerce 20. Punjab National Bank 21. Punjab & Sind Bank 22. Syndicate Bank 23. Union Bank of India 24. United Bank of India 25. UCO Bank of India 26. Vijaya Bank 27. Bank of Baroda. Admittedly, the FDRs deposited by the petitioner are not of a Scheduled Private Bank. Learned counsel for the petitioner has submitted that it is a technical mistake and the petitioner be permitted to deposit the FDRs of Scheduled Private Bank. There is no illegality because at present, the tenders have not been accepted. Contrary to this, learned counsel for the respondents no.1 to 4 and 5 have contended that the petitioner has violated the mandatory condition in regard to submitting the tender. Hence, his tender has rightly been rejected. As stated above, it is clear that the petitioner submitted FDRs (Fixed Deposit Receipts) issued by District Central Cooperative Bank, Guna and as per list of acceptable banks submitted by the respondents no. 1 to 4, it is not a Scheduled Private Bank. Hence, his tender has rightly been rejected. As stated above, it is clear that the petitioner submitted FDRs (Fixed Deposit Receipts) issued by District Central Cooperative Bank, Guna and as per list of acceptable banks submitted by the respondents no. 1 to 4, it is not a Scheduled Private Bank. The reason for imposing condition in regard to submitting slips of FDRs (Fixed Deposit Receipts) of Nationalized/ Scheduled Bank is that in the event of failure to comply terms and conditions of tender form. The respondents would be able to realize the money. Hence, in our opinion, the condition is valid. Now, the question is as to whether on account of breach of aforesaid condition, the bid of the petitioner is to be rejected or not? The Hon'ble Supreme Court in the case of M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and Others; AIR 1991 SC 1579 , has held as under in regard to deposit of earnest money by a certified cheque issued by another Union Bank, however, the terms and conditions was that the person has to deposit FDRs (Fixed Deposit Receipts) of State Bank of India:- “7. The nature of payment by a certified cheque was considered by this Court in Sita Ram Jhunjhunwala v. Bomay Bulliion Association Ltd., (1965) 35 Com Cas 526: ( AIR 1965 SC 1628 ). Several objections were taken there in support of the plea that the necessary condition in regard to payment was not satisfied and in that context this Court quoted the observations from the judgment in an English decision ( Vid Spargo's case (1873) L. R. 8 Ch. App.407) that it is a general rule of law that in every case where a transanction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards. This court applied the observations to a transaction requiring payment by one to another. The High Court's decisions in B. D. Yadav's case ( AIR 1984 Bombay 351) and T. V. Subhadra Amma's case ( AIR 1982 Ker 81 ) are also illustrations where literal compliance of every term of tender notice was not insisted upon. 8. This court applied the observations to a transaction requiring payment by one to another. The High Court's decisions in B. D. Yadav's case ( AIR 1984 Bombay 351) and T. V. Subhadra Amma's case ( AIR 1982 Ker 81 ) are also illustrations where literal compliance of every term of tender notice was not insisted upon. 8. In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest. We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No.1 filed before the High Court. The appeal is accordingly allowed with costs throughout.” The Hon'ble Supreme Court in the aforesaid judgment has observed that literal compliance of every term of the tender notice may not be insisted upon. The Hon'ble Supreme Court further in the case of Kanhaiya Lal Agrawal Vs. Union of India and Others (2002) 6 SCC 315 has held that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. However, in the present case, the petitioner has deposited slips of FDRs (Fixed Deposit Receipts) as earnest money issued by District Central Cooperative Bank. The Bank is recognized by Reserve Bank of India. The tenders have not been opened except one tender which was awarded in favour of the respondent no.5. Learned counsel for the petitioner submits that he is ready to deposit Fixed Deposit Receipts issued by Nationalized/Scheduled Bank in regard to rest of tenders that may be accepted. In our opinion, it would be just and proper if the petitioner be given a time to deposit FDRs (Fixed Deposit Receipts) issued by Nationalized/ Scheduled Bank because it is not the case where the petitioner does not fulfil the requisite terms and conditions of the tender. In our opinion, it would be just and proper if the petitioner be given a time to deposit FDRs (Fixed Deposit Receipts) issued by Nationalized/ Scheduled Bank because it is not the case where the petitioner does not fulfil the requisite terms and conditions of the tender. However, due to some mistake or misreading of the terms and conditions, he did not submit the FDRs (Fixed Deposit Receipts) issued by the Nationalized/ Scheduled Bank and submitted the FDRs (Fixed Deposit Receipts) issued by District Central Cooperative Bank.This is not a substantial mistake. The Hon'ble Supreme Court in the case of M/s. Poddar Steel Corporation (supra) has clearly observed that it is not necessary to literally comply of every term of the tender notice. In such circumstances, the petition of the petitioner is disposed of with a direction that the contract which was been awarded in favour of respondent no.5 be treated as final and in regard to rest of the contract works, the petitioner be permitted to submit FDRs (Fixed Deposit Receipts) issued by Nationalized/ Scheduled Bank within a period of seven days. The FDRs (Fixed Deposit Receipts) submitted by the petitioner issued by Jila Sahakari Kendriya Bank Maryadit, Guna be returned back to him and if petitioner complies the aforesaid terms and conditions within a week, the tender forms submitted by it, be considered by the respondents along with other bidders for the purpose of award of contract. With the aforesaid the petition is disposed of. No order as to costs.