JUDGMENT : Sahidullah Munshi, J. 1. This appeal at the instance of Container Corporation of India Ltd. (in short CONCOR) the appellant herein is against an order dated 15th September, 2015, passed in A.P. No. 1509 of 2015. The said order dated 15th September, 2015 is quoted below:- "The Court : The matter has appeared despite a substantive ad interim order passed on September 4, 2015, only to afford the respondent an opportunity to disclose documents that may not have been available with Advocate for the respondent on the previous day. The respondent relies on the guidelines framed by the respondent in a writing of January 9, 2013 pertaining to public procurement policy. The respondent refers to the part therein at page 2 of the document which deals with micro, small and medium enterprises. The respondent submits that the overall bid made by the petitioner for the handling and transportation work was Rs.4.04 crore which was higher than the overall bid of Rs.3.69 crore of Western Carriers Private Limited. However, since the petitioner's bid of Rs.2.72 crore for the handling part of the work was less than Western's Rs.2.79 crore therefor, the work was split up between the petitioner and Western. The respondent says that since it has now been discovered that the petitioner had made a false declaration at the time of his application, the termination or annulment of the contract should not be interfered with. Such aspect of the matter has been considered in the order dated September 4, 2015. Since there is no additional ground that the respondent can show immediately to detract from the order dated September 4, 2015, such order will continue till the disposal of the petition. Affidavit-in-opposition be filed within a fortnight from date; reply thereto, if any, may be filed before the matter appears as an adjourned motion in the monthly list of October, 2015. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities." 2. By the said order the Hon'ble Single Bench has held that in his earlier order dated 4th September, 2015, an interim order had already been passed and which was directed to continue till disposal of the Section 9 application filed by Mr. T.N. Singh, the respondent herein. The Hon'ble Single Bench directed the parties to file their affidavits. By the said order the Hon'ble Single Bench has held that in his earlier order dated 4th September, 2015, an interim order had already been passed and which was directed to continue till disposal of the Section 9 application filed by Mr. T.N. Singh, the respondent herein. The Hon'ble Single Bench directed the parties to file their affidavits. The order which was passed on 4th September, 2015 is quoted below:- "The Court : The grievance of the petitioner is that a contract awarded by the respondent corporation by the issuance of a letter of intent has been arbitrarily terminated for a minor mistake committed by the petitioner while obtaining the tender documents. The tender documents stipulated that a micro or a small enterprise registered with the Micro, Small and Medium Enterprises Department of the Central Government would be exempted from paying the costs of the tender papers of Rs.2500/- and would also be exempted from putting in the earnest deposit of Rs.5 lakh. In the petitioner's application, the petitioner referred to being registered under the MSME department and the accompanying certificate indicated that the petitioner was registered in the medium category. The respondent verified the petitioner's registration with the MSME department and, upon satisfaction of the petitioner's registration, the petitioner was identified as eligible to be awarded the contract for handling a depot in Assam owned by the corporation as the lowest bidder. What is evident from the relevant letter of the MSME department dated June 17, 2015 is that it merely certified that the petitioner was registered with the MSME. It does not appear that it dawned on the corporation, whether at the time of receiving the petitioner's bid or at the time of making an enquiry with the MSME department, that the petitioner was neither a micro nor a small enterprise. Just as the petitioner had relied on his MSME registration, the corporation processed the petitioner's bid on the basis of the MSME registration and the verification thereof of June 17, 2015 as obtained from the relevant department. The earnest money that a bidder was required to deposit was, upon the bid being successful, to be treated as part of the security deposit. The earnest money that a bidder was required to deposit was, upon the bid being successful, to be treated as part of the security deposit. Upon the petitioner's bid being discovered to be the lowest for the handling part of the work, the petitioner has put in the requisite security deposit of Rs.22 lakh, since the transportation part of the work has not been allotted to the petitioner. It appears that on a subsequent query of the corporation, the MSME department informed it that the petitioner was registered as a medium enterprise and was not entitled to the benefit extended by the corporation to micro and small enterprises. Following an initial notice of the corporation, to which the petitioner replied, a formal letter of termination was issued to the petitioner on or about August 28, 2015, by which time this petition had been made ready for filing. The letter of termination has been disclosed in a supplementary affidavit filed by the petitioner. The petitioner claims that in terms of the tender documents, certain benefits could be enjoyed by the bidder if such bidder was a micro or small enterprise. Apart from the exemption of the nominal cost of the tender documents of Rs.2500/- and the exemption of the earnest deposit of Rs.5 lakh, according to the petitioner, if a micro or small enterprise bid within 15% of the lowest bid for the relevant work such micro or the small enterprise would be entitled to obtain 20% of the work at the L-1 price. The petitioner claims that there were no micro or small enterprise bidders in respect of the work and, as such, there was no prejudice suffered by any other bidder in the petitioner's bid having been accepted. The petitioner suggests that the MSME registration cited by the petitioner was in the mistaken belief of the petitioner that it was such registration which would entitle a bidder to the exemptions and benefits rather than the bidder being a micro or small enterprise. The petitioner says that the registration certificate or acknowledgement form as issued by the MSME department was appended to the petitioner's bid and the certificate clearly indicated that the petitioner was registered in the medium category. The petitioner says that the registration certificate or acknowledgement form as issued by the MSME department was appended to the petitioner's bid and the certificate clearly indicated that the petitioner was registered in the medium category. The petitioner claims that the petitioner did not attempt to deceive or otherwise mislead the corporation and it was a genuine mistake which has not resulted in any prejudice to either the corporation or to any other party. The corporation has cited clause 7.6 in its notice of termination. Clause 7.6 deals with the rights of the corporation to disregard bids, reject bids and the like in certain specified cases. Sub-clause (f) of clause 7.6 provides that if any tenderer "deliberately gives wrong information or suppresses/conceals any information/facts in his tender to make his bid favourable for acceptance or creates circumstances for the acceptance of his tender", the corporation would have the right to reject such tender at any stage of execution without any financial liability. To begin with, the petitioner's bid and the transaction has crossed the tender stage and upon the letter of intent being awarded. In terms of clause 7.2 of the tender documents, there is a deemed conclusion of the contract between the parties once the letter of intent is received by a bidder. Further, the petitioner did not describe himself as either a micro or a small enterprise and, though it is difficult to accept that the petitioner did not notice which categories of lesser enterprises were eligible for the exemption, the petitioner did not append a copy of the MSME registration which clearly revealed that the petitioner was registered as a medium category enterprise. But even if the petitioner attempted to pinch pennies, there may not have been any fraudulent or deceitful act indulged in by the petitioner. Prima facie, it does not appear that the petitioner attempted to deceive the corporation or did anything within the meaning of Sub-clause (f) of clause 7.6 of the tender documents which would entitle the corporation to reject the bid or terminate the contract. It may also be noticed that the corporation does not dispute the petitioner's contention that there was no micro or small enterprise bidder in the fray who may have been prejudiced by the petitioner's bid or the acceptance thereof. It may also be noticed that the corporation does not dispute the petitioner's contention that there was no micro or small enterprise bidder in the fray who may have been prejudiced by the petitioner's bid or the acceptance thereof. Prima facie, since it appears that the minor mistake on the part of the petitioner ought to have been condoned, upon the cost of the tender documents being obtained from the petitioner, the corporation is restrained from giving any effect or further effect to its notice of termination dated August 28, 2015. Instead of issuing directions for filing affidavits immediately, the corporation is afforded an opportunity to present any document or other material that may be in its possession when the matter appears next a week hence. There is no dispute that the tender documents contain an arbitration agreement and the interim measures sought by way of present petition under Section 9 of the Arbitration and Conciliation Act, 1996 pertain to the matrix contract governed by the arbitration clause. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities." 3. Before dealing with the aforesaid two orders dated 15th September, 2015 and 4th September, 2015, passed by the Hon'ble Single Bench, a little background of the Section 9 application filed by Mr. T.N. Singh (hereinafter referred to as the respondent) is required to be given and those are as follows :- 4. Pursuant to a notice inviting tender (NIT) for handling and transportation of containers and cargo at Inland Container Depot, Amingaon, Assam for a period of four years, the respondent submitted its bid for the same. It is pertinent to point out that under the terms of the notice inviting tender, the tender documents were to be provided free of cost to entities registered under the Micro, Small and Medium Enterprises (MSME) Development Act, 2006. The respondent, being a medium enterprise within the meaning of the said Act, sought for the tender document free of cost. However, the cost for the tender document was Rs.2,500/- + VAT as mentioned in the tender form. 5. The respondent sought for the tender documents without cost by his letter dated 6th April, 2015 on an impression that any enterprise registered under MSME Act could obtain it free of cost. However, the cost for the tender document was Rs.2,500/- + VAT as mentioned in the tender form. 5. The respondent sought for the tender documents without cost by his letter dated 6th April, 2015 on an impression that any enterprise registered under MSME Act could obtain it free of cost. The said letter was duly received by the respondents and on such basis the tender document was released to the petitioner on 8th August, 2015. The aforesaid letter dated 6th April, 2015 is reproduced below :- "Date : 06/04/2015 To, The Chief General Manager, Eastern Region, Container Corporation of India Ltd., 33/1, J.L. Nehru Road, 10th Floor, Kolkata - 700 071. SUB:- CON/KOL/ER/AMJ/H&T/2015-Tender Form For Contract For Handling & Transportation Work Respected Sir, With reference to the above tender, we would like to participate for the said tender and we request you to kindly provide us the tender document without any cost as we are an MSME registered firm. Hence we request you kindly do the needful. Thanking you, Yours faithfully, For M/s. T N SINGH Enclosure :- Certificate of MSME (copy)" 6. It was also the impression of the appellant that being a registered entity under MSME Act the respondent would be exempted from paying the earnest money deposit (EMD). 7. The respondent being a medium enterprise physically submitted its bid and forwarded a copy of its registration certificate with the Directorate of Micro, Small and Medium Enterprises to the appellant. Since the respondent submitted a certificate from MSME stating it was a medium enterprise registered under the MSME Act, 2006, it could obtain the tender form free of cost. The said letter was duly received by the appellant and on such basis the tender document was released. The respondent duly submitted its bid along with its certificate of enlistment as Medium Enterprise under the MSME Act, 2006. The respondent also provided balance-sheet and various documents required for technical evaluation to find out the eligibility criteria. The copy of the MSME certificate furnished by the respondent was duly verified by the appellant with the Directorate of Micro, Small and Medium Enterprises which would be evident from the letter dated 17th June, 2015 issued by the District Industries Centre, Kolkata. A copy of the said letter is reproduced below:- "Memo No. 09/MFC/DIC/KOL Dated : 17.6.2015 To Mr. B.K. Mahapatra Genl Manager/P&A Container Corp. A copy of the said letter is reproduced below:- "Memo No. 09/MFC/DIC/KOL Dated : 17.6.2015 To Mr. B.K. Mahapatra Genl Manager/P&A Container Corp. of India Ltd. (ER) Metro rail Bhavan, 10th Floor 33/1, J.L. Nehru Road Kolkata - 700071 Sub.: Verification of authenticity and validity of EM-II acknowledgement of M/s. T.N. Singh Ref.: Your letter No. CON/KOL/ER/AMJ/H&T/2015/134 Dated 15.06.2015 Sir, In connection with the above I would like to inform you that M/s. T.N. Singh having EM II No. 19-017-23-01116E (PART-II) issued on 02-03-2015 is a valid acknowledgement as per our record from the date of issue. It is an acknowledgement not a certificate issued on the basis of the information furnished by the applicant. This acknowledgement shall be liable to be cancelled in case the unit is found closed for more than 6 month or furnished wrong information in the EM filed otherwise it is valid. This is for your information and necessary action please. Yours faithfully General Manager District Industries Centre, Kolkata" 8. The respondent's bid for handling of containers was found to be the lowest, but so far the bids for transportation of containers were concerned, the respondent's bid was found not to be the lowest. As a result the appellant split the contract and awarded only the handling of containers to the respondent and issued letter of intent in keeping with clause 7.7.2 within the meaning of partial award of contract under clause 7.7 of Chapter II of the tender conditions. The appellant issued a letter of intent on 21st July, 2015 for handling of containers and cargo at ICD/Amingaon for a period of four years. The said letter of intent dated 21st July, 2015 issued by Container Corporation of India Ltd., is reproduced below :- "CON/KOL/ER/AMJ/HDL/2015/490 Dt. 21.07.2015 To, M/s. T.N. Singh, 98, Garden Reach Road, Kolkata-700023. Sub. : - Letter of Intent for Handling of Containers and Cargo (including internal transportation) at Amingaon (Inland Container Depot-AMJ) container terminal, Assam for a period of four (4) years. Ref. : NIT Published in the newspapers on 14.03.2015; Your bids for subject tender No. CON/KOL/ER/AMJ/H&T/2015. Dear Sir, With reference to your above bid, CONCOR is pleased to issue this Letter of Intent (LOI), as per tender para 7.7 (partial award of contract), for Handling of containers and Cargo (including internal transportation) at ICD/AMJ for a period of four (4) years. : NIT Published in the newspapers on 14.03.2015; Your bids for subject tender No. CON/KOL/ER/AMJ/H&T/2015. Dear Sir, With reference to your above bid, CONCOR is pleased to issue this Letter of Intent (LOI), as per tender para 7.7 (partial award of contract), for Handling of containers and Cargo (including internal transportation) at ICD/AMJ for a period of four (4) years. CONCOR shall have the right to exercise discretion of extending the contract by one year in case it considers it necessary on the basis of mutually agreed rates, terms and conditions. As per tender condition, you are hereby requested to start the work within 30 days of the issue of this LOI at the accepted rates as per Annexure-I, terms and conditions and other stipulations as per tender document. You are hereby advised to submit the security deposit of Rs.22,65,000/- (Rupees twenty-two lakhs sixty-five thousand only) and execute the agreement within 15 days from the date award of contract i.e. by 04/08/2015. Any clarification, understanding or discussion may be held at our Regional Office or at the respective Terminal. Action must be initiated in order to take over the Job in consultation with the official incharge of the terminal. Please submit your acceptance and acknowledge the receipt. Kindly treat this letter as intimation of award of contract. You are requested to get the equipments inspected by CONCOR officials at Amingaon and that should confirm to the requisite standard, as enshrined in the tender document. You are requested to return one copy of this letter as a token of your unconditional acceptance. Thanking you, For Container Corporation of India Ltd. (B.K. Mahapatra) General Manager (P&A)" 9. It is pertinent to take note that the appellant requested the respondent to start the work within 30 days of issue of the letter of intent at the accepted rates as per Annexure-I, terms and conditions and other stipulations as per tender document. The respondent was also advised to submit security deposit for a sum of Rs.22,65,000/- (Rupees Twenty Two Lakh Sixty Five Thousand) only, and to execute the agreement within 15 days from the date of award of the contract, that is, by 4th August, 2015. The respondent submitted the performance bank guarantee of Kotak Mahindra Bank, Park Street Branch, Kolkata, dated 23rd July, 2015 for a sum of Rs.22,65,000/- (Rupees Twenty Two Lakh Sixty Five Thousand) only, in favour of the appellant. The respondent submitted the performance bank guarantee of Kotak Mahindra Bank, Park Street Branch, Kolkata, dated 23rd July, 2015 for a sum of Rs.22,65,000/- (Rupees Twenty Two Lakh Sixty Five Thousand) only, in favour of the appellant. The said bank guarantee is valid till 20th July, 2019. After the issuance of letter of intent the appellant issued a letter dated 11th August, 2015 whereby the respondent was requested to state why action should not be initiated against them as per contractual clause 7.6(f), Chapter II of the tender document. A further letter dated 19th August, 2015 was issued by the appellant to the respondent whereby it was intimated that the issue of handling contract at ICD/AMJ was under examination and the outcome thereof would be intimated in due course. It was intimated that respondent's request for commencement of handling operations was not agreed to at that stage. A detailed representation has been made by the respondent addressing it to the Chief General Manager, Eastern Region, Container Corporation of India Ltd., whereby they have justified their stand and they have highlighted that after awarding of contract to fulfil their obligations in terms of the letter of intent and the agreement, they immediately mobilised manpower and machinery and transported a huge crane Hyster Reach Stacker to the site at Amingaon, Assam; they had incurred expenses in excess of Rs.7.5 lakh in transportation of equipment; they had put in transport another machinery Reach Stacker which was to reach Amingaon within a week from the date of the said letter ; the cost of transportation of the said machinery would be about Rs.8 lakh and the monthly rental for the Reach Stacker-II could be in excess of Rs.11 lakh; that they had also dispatched various other equipment like four forklifts and two trailers which had already reached the site; that for the purpose of transportation of all the aforesaid equipment including the aforementioned Reach Stackers they had incurred expenditure in excess of Rs.16,80,000/- (Rupees Sixteen Lakh Eighty Thousand) only; that those apart they had also mobilised about 20 personnel including operators, helpers, mechanics and engineers; for the purpose of operational expenses they had to incur expenses to the tune of Rs.27,90,000/- (Rupees Twenty Seven Lakh Ninety Thousand) only, for both men and machinery. Another letter dated 28th August, 2015 was issued by the appellant Container Corporation of India Ltd. thereby cancelling the letter of intent dated 21st July, 2015. The said letter dated 28th August, 2015 is reproduced below:- "No.CON/KOL/ER/AMJ/H&T/2015/05 Date : 28.08.2015. To, M/s. T.N. Singh 98, Garden Reach Road Kolkata - 700023 Sub: Notice for Withdrawal/Cancellation of the Letter of Intent dated 21.07.2015. Sir, It is found that you have deliberately given wrong information at the Tender being REF : CON/KOL/ER/AMJ/H&T/2015 for Contract for Handling & Transportation Work at Inland Container Depot, Amingaon (Amj) for a Period of 48 Months from the Date of Commencement of Contract and have violated the terms and conditions of the Tender. You had applied as a MSME bidder and enclosed with the bid, a MSME certificate issued by the MSME Development Institute, Govt. of India. You were contractually and legally bound to observe and perform all the terms of the Tender Bid. You had been awarded on 21.07.2015 the partial contract for the Handling of containers and cargo (including internal transportation) Work at Inland Container Depot, Amingaon for a Period of 48 Months. On or about 4.08.2015, MSME Development Institute, Govt. of India wrote stating that as per the EM II submitted by M/s. T.N. Singh, it is Medium sector Enterprise in service sector and is not eligible for any exemption in Earnest Money Deposit and cost of tender document as the same is permissible to a MSE (Micro & Small Enterprise). Therefore, you have breached the terms of the Bid and have wrongfully availed the benefit meant for MSE (Micro & Small Enterprise). CONCOR sent a notice dated 11.08.2015 calling upon you why action should not be taken under Clause 7.6 (f) of Chapter II of the Tender document. CONCOR by its letter dated 19.08.2015 replied to your letter stating that the issue of handling at ICD/AMJ was under examination and the outcome would be intimated in due course. In the meantime various representations were made by you from time to time viz. 12.08.2015, 14.08.2015, 19.08.2015 and 26.08.2015. CONCOR have considered the various representations made by you on various dates as stated above and it is found that you have breached the terms of the Bid and have wrongfully availed the benefit meant for MSE (Micro Small Enterprise). In the meantime various representations were made by you from time to time viz. 12.08.2015, 14.08.2015, 19.08.2015 and 26.08.2015. CONCOR have considered the various representations made by you on various dates as stated above and it is found that you have breached the terms of the Bid and have wrongfully availed the benefit meant for MSE (Micro Small Enterprise). You have availed the benefit applicable to Micro & Small enterprises [by getting the Tender Form free of cost and not depositing the Earnest Money Deposit of Rs.5 Lac] which you were otherwise not entitled to. The furnishing of Earnest Money Deposit was an essential and mandatory condition as per Clause 2 of Chapter II of the Tender document. Under the terms of the Tender, submission of Tenders without Earnest Money Deposit is to be summarily rejected. In the instant case you did not furnish the Earnest Money Deposit though you had to, as you did not qualify for the exemption for it was neither a Micro enterprise nor a Small enterprise. You were fully aware that you were a Medium Enterprise and did not qualify to be either a Micro enterprise or a Small enterprise as was stipulated in the Tender. From your act and conduct, it is clear that you have deliberately given wrong information at the Tender and that you have breached the terms of the Bid and have wrongfully availed the benefit which otherwise you were not entitled to and did not submit the Earnest Money Deposit and cost of tender document therefore the Clause 7.6 (f) of Chapter II of the Tender is invoked. CONCOR is also in the process of initiating Clause 5.2 of Chapter IV of the Tender for debarring you from participating in any future bid for a period as stipulated therein. Therefore, in the aforesaid facts and circumstances, the Letter of Intent dated 21.07.2015 issued by CONCOR stands withdrawn/cancelled. You are liable to indemnify and compensate CONCOR for all losses and damages that may be suffered or sustained by it on account of your wrongful and deliberate acts, CONCOR also reserves the right to claim damages suffered on account of the misrepresentation and the Bank Guarantee submitted by you is withheld and shall be encashed after ascertaining the actual loss and damage. In the event the loss and damages assessed exceeds the Bank Guarantee, CONCOR reserves the right to recover and realise such sum as may be assessed. Thanking you, For Container Corporation of India Ltd., (Prashant Sinha) Sr. Manager (C&O)" 10. A copy of the said letter, however, has been annexed by the respondent in their supplementary affidavit filed before the Hon'ble Single Bench. 11. The respondent filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 with the following prayers :- (a) The respondent be restrained from giving any effect or further effect to the letter dated 11th August, 2015 being annexure "G" hereto. (b) The respondent be restrained from giving any effect or further effect to its letter dated 19th August, 2015 being annexure "K" hereto. (c) The respondent be directed to issue job orders to the petitioner for the purpose of handling the containers and cargo at Amingaon, Assam in terms of the Letter of Intent dated 21st July, 2015. 12. The Hon'ble Single Bench passed an order on 4th September, 2015 as quoted earlier and by the said order the Hon'ble Single Bench held that - (i) In terms of clause 7.2 of the tender documents, there is a deemed conclusion of the contract between the parties once the letter of intent is received by the bidder. (ii) Although, the petitioner did not describe himself as either a micro or a small enterprise, it revealed from the appended document of MSME registration which clearly revealed that the petitioner was registered as a Medium category enterprise, there was no fraudulent and/or deceitful act indulged by the petitioner. 13. The Court further held that the petitioner never attempted to deceive the corporation nor did anything within the meaning of Sub-clause (f) of clause 7.6 of the tender documents which would entitle the corporation to reject the bid or terminate the contract and further that the corporation does not dispute the petitioner's contention that there was no micro or small enterprise bidder in the fray who might have been prejudiced by the petitioner's bid or the acceptance thereof directing for acceptance of the cost of the tender document, the appellant has been restrained from giving any effect or further effect to its notice of termination dated 28th August, 2015 (annexed to the supplementary affidavit). Instead of issuing direction for filing affidavits the appellant was afforded an opportunity to present any document or other material that might be in its possession at the time when the matter would appear next. Subsequently, the matter appeared on 15th September, 2015 considering the submissions made by the appellant that it was discovered that the respondent had made a false declaration at the time of his application, the termination and/or annulment of the contract should not be interfered with by the Court. The Court has held that his submissions were considered before the order was passed on 4th September, 2015 and since there was no additional ground that could be shown by the appellant to enable the Court to modify the order dated 4th September, 2015, the Court allowed the order of 4th September, 2015 to continue till disposal of the petition. 14. Assailing the aforesaid order dated 15th September, 2015, passed by the Hon'ble Single Bench, the appellant has raised the following issues:- (i) Whether the principle of issue estoppel is applicable in the instant case and that the parties herein are bound by the order of cancellation of the tender award to the respondent in respect of a Delhi matter under tender notice No. CON/NR/TC/TKD/TTO/2015; (ii) whether issuance of letter of intent and acceptance of bank guarantee furnished by the respondent precluded the appellant from cancelling the tender submitted by the respondent or in other words, whether the appellant (CONCOR) has waived its right to cancelling the letter of intent; (iii) whether sustaining the order of injunction passed by the trial Court in favour of the respondent will result in breach of the guidelines; (iv) whether the respondent is guilty of deceit and misrepresentation; (v) whether it is open to appellant to cancel the award of tender under clause 7.6(f) as also under Sections 17, 18 and 19 of the Indian Contract Act, 1872. 15. On the question of principle of issue estoppel the learned Counsel for the appellant has relied on the case of Vanu Kumar Jain v. Archana Kumar & Anr. reported in AIR 2005 SC 626 . 16. In the above-mentioned case an application under Order 9, Rule 13 was filed by the respondent before the Hon'ble Supreme Court which was marked as Misc. Judicial Case No. 30 of 1985. reported in AIR 2005 SC 626 . 16. In the above-mentioned case an application under Order 9, Rule 13 was filed by the respondent before the Hon'ble Supreme Court which was marked as Misc. Judicial Case No. 30 of 1985. The said application was dismissed by the learned 6th Additional District Judge, Jabalpur, holding that the defendant failed to prove good and sufficient cause for their absence on 7.10.1985 when the ex parte decree was passed. An appeal being Misc. Appeal No. 19/86 in terms of Order 43, Rule 1 (d) of the Code of Civil Procedure was filed which was also dismissed. 17. A civil revisional application was filed challenging the order dated 31.10.1985 whereby the respondent's application under Order 9, Rule 13 of the Code was dismissed. A regular first appeal being No. 109/86 was filed in the High Court. The said Misc. Appeal No. 19/86 was dismissed by an order dated 5th April, 1994 against which special leave petition was filed which also came to be dismissed as withdrawn by an order dated 16.12.1994. In the meantime, the original plaintiff transferred his right, title and interest in favour of the appellant before the Hon'ble Supreme Court. The plaintiff died on 01.05.2001. By reason of the impugned judgment the High Court allowed First Appeal No. 109 of 1986. 18. Question arose whether the subject-matter of an application under Order 9, Rule 13 of the Code and the subject-matter of the appeal being same, it would be against public policy to allow two parallel proceedings to continue simultaneously. On these questions the Hon'ble Apex Court held that when an ex parte decree is passed the defendant (apart from availing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, (1), to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event, the appeal is dismissed as a result whereof the ex-parte decree passed by the trial Court merges with the order passed by the Appellate Court having regard to explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 of the Code would not be maintainable. However, the explanation (1) appended to said provision does not suggest that the converse is also true. It has been further held by the Hon'ble Apex Court that although, there may not be a statutory bar to pursuit of two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed, one after the other. On the ground of public policy the right of appeal conferred upon a suitor under a provision of Statute may not be taken away if the same is not in derogation or contrary to any other statutory provision. In the facts and circumstances of the present case, this judgment has no bearing at all. Question of issue estoppel, as argued by the learned Counsel for the appellant, is not applicable in the present case, for it is evident that Delhi judgment is not applicable in the Kolkata case because of the fact that Delhi case was guided by e-Tender which is quite different from the tender process adopted in Kolkata. So far as the question of waiver of right to cancel the letter of intent is concerned the learned Counsel for the appellant has argued that waiver is a question of fact and it must be properly pleaded and proved. In support of his contention he has relied on a judgment in the case of M/s. Motilal Padampat Sugar Mills Ltd. v. The State of Uttar Pradesh & Ors. reported in AIR 1979 SC 621 . In the said judgment it has been held by the Hon'ble Apex Court that waiver means abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge. It has also been held that no plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. It will be profitable to quote paragraphs 5 and 6 of the said judgment for our purpose. "5. We shall first deal with the question of waiver since that can be disposed of in a few words. It will be profitable to quote paragraphs 5 and 6 of the said judgment for our purpose. "5. We shall first deal with the question of waiver since that can be disposed of in a few words. The High Court held that even if there was an assurance given by the 4th respondent on behalf of the State Government and such assurance was binding on the State Government on the principle of promissory estoppel, the appellant had waived its right under it by accepting the concessional rates of sales tax set out in the letter of the 5th respondent dated 20th Jan., 1970. We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated 25th June, 1970 and establishing that on these facts there was no exemption under the assurance given by the 4th respondent. but in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plead should have been rejected in limine. 6. Secondly, it is difficult to see how, on the facts, the plea of waiver could be said to have been made out by the State Government. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plead should have been rejected in limine. 6. Secondly, it is difficult to see how, on the facts, the plea of waiver could be said to have been made out by the State Government. Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be "an intentional act with knowledge." Per Lord Chelmsford, L. C. in Earl of Darnley v. London, Chatham and Dover Rly. Co., (1867) 2 HL 43 at p. 57. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury's Laws of England (4th ed) Vol. 16 in para. 1472 at p. 994 that for a "waiver to be effectual it is essential that the person granting it should be fully informed as to his rights" ands Isaacs, J. delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305 has also emphasised that waiver "must be with knowledge, an essential supported by many authorities." Now in the present case there is nothing to show that at the date when the appellant addressed the letter dated 25th June, 1970, it had full knowledge of its right to exemption under the assurance given by the 4th respondent and that it intentionally abandoned such right. It is difficult to speculate what was the reason why the appellant addressed the letter dated 25th June, 1970 stating that it would avail of the concessional rates of sales tax granted under the letter dated 20th Jan., 1970. It is possible that the appellant might have thought that since no notification exempting the appellant from sales tax had been issued by the State Government under Section 4A, the appellant was legally not entitled to exemption and that is why the appellant might have chosen to accept whatever concession was being granted by the State Government. It is possible that the appellant might have thought that since no notification exempting the appellant from sales tax had been issued by the State Government under Section 4A, the appellant was legally not entitled to exemption and that is why the appellant might have chosen to accept whatever concession was being granted by the State Government. The claim of the appellant to exemption could be sustained only on the doctrine of promissory estoppel and this doctrine could not be said to be so well defined in its scope and ambit and so free from uncertainty in its application that we should be compelled to hold that the appellant must have had knowledge of its right to exemption on the basis of promissory estoppel at the time when it addressed the letter dated 25th June, 1970. In fact in the petition as originally filed, the right to claim total exemption from sales tax was not based on the plea of promissory estoppel which was introduced only by way of amendment. Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that every one is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law. Over a hundred and thirty years ago, Maule J., pointed out in Martindale v. Falkner, (1846) 2 CB 706 "There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so". Scrutton, L. J., also once said: "It is impossible to know all the statutory law, and not very possible to know all the common law." But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartlam, 1937 AC 473" the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope land application." It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government." 19. The appeal by M.P. Sugar Mills (supra) before the Hon'ble Supreme Court raised a question whether and how far and to what extent the State is bound by the doctrine of estoppel. The fact situation of the said case may be stated in brief as follows :- The appellant before the Hon'ble Supreme Court is a Limited Company which was primarily engaged in the business of manufacture and sale of sugar and it had also a cold storage plant and a steel foundry. On 10th October, 1968 a news item appearing in the National Herald in which it was stated that the State of Uttar Pradesh has decided to give exemption from sales tax for a period of three years under Section 4A of the U.P. Sales Tax Act to all new industrial units in the State with a view to enabling them 'to come on firm footing in developing stage.' This news item was based upon a statement made by Shri M.P. Chatterjee, the then Secretary in the Industries Department of the Government. The appellant, on the basis of the announcement, addressed a letter dated 11th October, 1968 to the Director of Industries stating that in view of the Sales Tax holiday announced by the Government, the appellant intended to set up a hydrogenation plant for manufacture of vanaspati and sought for confirmation that this industrial unit which they proposed to set up would be entitled to sales tax holiday for a period of three years from the date it commences production. The Director of Industries replied by his letter dated 14th October, 1968 confirming that there would be no sales tax for three years on the finished products of proposed vanaspati factory from the date it kept power connection for commencing production. The Director of Industries replied by his letter dated 14th October, 1968 confirming that there would be no sales tax for three years on the finished products of proposed vanaspati factory from the date it kept power connection for commencing production. The appellant thereupon started taking steps to contact various financiers for financing the project and also initiated negotiations with manufacturers for purchase of machinery for setting up the vanaspati factory. On 12th December, 1968 the appellant's representative met the 4th respondent who was at that time the Chief Secretary to the Government as also advisor to the Governor and indicated to him that the appellant was setting up the vanaspati factory solely on the basis of the assurance given on behalf of the Government that the appellant could be entitled to exemption from sales tax for a period of three years from the date of commencement of commercial production at the factory and the 4th respondent reiterated the assurance that the appellant would be entitled to sales tax holiday in case the vanaspati factory was put up by it. The appellant, by its letter dated 13th December, 1968, placed on record what had transpired at the meeting on the previous day and requested the 4th respondent to confirm that they should be allowed sales tax holiday for a period of three years on the sale of vanaspati from the date they started production. On the same day the appellant entered into an agreement with M/s. D.E. Sanat (India) Pvt. Ltd., Bombay for supply of plant and machinery for the vanaspati factory, providing clearly that the appellant would have option to terminate the agreement, if within ten weeks' exemption from sales tax was not granted by the State Government. The 4th respondent replied on 22nd December, 1968 confirming that the State Government would be willing to consider their request for grant of exemption from U.P. Sales Tax for a period of three years from the date of production and asked the appellant to obtain the requisite application form and submit a formal application to the Secretary to the Government in the Industries Department and in the meanwhile, to go ahead with the arrangement for setting up the factory. The appellant had, in the meantime, submitted application dated 21st December, 1968 for a formal order granting exemption from sales tax under Section 4A of the Act. The appellant had, in the meantime, submitted application dated 21st December, 1968 for a formal order granting exemption from sales tax under Section 4A of the Act. It appears that the letter of the 4th respondent dated 22nd December, 1968 was not regarded as sufficient by the Financial Institutions which were approached by the appellant for financing the project since it merely stated that the State Government would be willing to consider the request for grant of exemption and did not convey any decision on the State Government that the exemption would be granted. The State Government, however, once again changed its decision. On 12th August, 1970 a news item in the Northern India Patrika stating that the Government had decided to rescind the earlier decision with the decision set out in the letter dated 20th January, 1970 to allow concession in the rate of sales tax to new vanaspati units. The appellant thereupon filed a writ petition in the High Court of Allahabad. It appears that in the writ petition as originally filed, there was no plea of promissory estoppel taken against the State Government and the writ petition was, therefore, amended by obtaining leave of the High Court with a view to introducing the plea of promissory estoppel. The appellant alleged in the amended provision that the 4th respondent acting on behalf of the State had given an unequivocal assurance to the appellant that the appellant would be entitled to exemption from payment of sales tax for a period of three years from the date of commencement of the production and this assurance was given by the 4th respondent intending or knowing that it would be acted on by the appellant and in fact, the appellant acting in reliance on it, established the vanaspati factory by investing a large amount and the State Government was, therefore, bound to honour the assurance and exempt the vanaspati manufactured and sold by the appellant from payment of the sales tax for a period of three years from 2nd July, 1970. This plea based on the doctrine of promissory estoppel was, however, rejected by the Division Bench of the High Court principally on the ground that the appellant had waived the exemption by accepting the concessional rates set out in the letter of the Deputy Secretary dated 20th January, 1970. The appellant, therefore, preferred the aforesaid appeal before the Hon'ble Apex Court. The appellant, therefore, preferred the aforesaid appeal before the Hon'ble Apex Court. The Hon'ble Apex Court has observed that in order to invoke the doctrine of promissory estoppel it is enough to show that the promisee has, if acting in reliance on the promise, altered his position and it is not necessary for him to further show that he has acted to his detriment. The Government was, therefore, bound to make good the representation made by it. 20. In the present case, the respondent disclosed its status and its offer was accepted by the appellant having scrutinised the eligibility of the respondent the appellant issued the letter of intent. The cited judgment does not support the appellant's case rather it supports respondents' case. Fact remains that in the cited judgment the Hon'ble Apex Court has also held that impliedly issue of waiver can be raised as it will appear from paragraph 6 thereof. 21. Another judgment in the case of Peyman v. Lanjani & Ors. reported in [1984] 3 All ER has been cited by the learned Counsel for the appellant on the issue of waiver of any right and that there could not have been any waiver of any right to cancel the right. To establish this proposition our attention has been drawn to the said judgment where it has been held that " for the purposes of the common law doctrine of election, where a person has unrestricted choice between two mutually inconsistent courses of action which affected his rights knowledge of the right to elect was a pre-condition to making an effective election and there could not be no knowledge of the right to elect unless the person knew his legal rights as well as the facts giving rise to those rights." It is not understood as to how this judgment has any relevance in the facts and circumstances of the present case, and, therefore, we do not rely on the same. 22. The next judgment cited is Director General of Ordnance Services & Ors. v. P.N. Malhotra reported in AIR 1995 Suppl. (3) SCC 226. This judgment has been relied to show that a new case, not made out by the parties in the pleading should not form the basis of the judgment. In the cited case the respondent is a civilian employee in the defence services. v. P.N. Malhotra reported in AIR 1995 Suppl. (3) SCC 226. This judgment has been relied to show that a new case, not made out by the parties in the pleading should not form the basis of the judgment. In the cited case the respondent is a civilian employee in the defence services. A disciplinary enquiry was held against him in respect of certain charges. On the basis of the said enquiry, he was dismissed from service by the competent authority. An appeal preferred by him was dismissed by the appellate authority, against which he approached the Central Administrative Tribunal. Grounds urged by him in the original application were refuted and denied by the appellants in their counter-affidavit. The order under appeal shows that though several grounds were raised in the original application filed by the respondent, the only point urged by his Counsel at the time of arguments before the Tribunal was the one relating to applicability of 1965 Rules. No other contention appears to have been urged. The Hon'ble Supreme Court allowed the appeal and set aside the order of the Tribunal thereby the order dismissing the respondent as confirmed by the appellate order has been restored holding, inter alia, "even assuming for the sake of argument that the respondent was entitled to insist upon an enquiry before he could be dismissed one must agree with the said contention. More so, when neither party has contended that there were any other rules applicable to disciplinary enquiries against such civilian employees which had not been followed." The ratio of the judgment does not appear to help the appellant at all. 23. The appeal was taken up for hearing on the basis of the documents annexed to the stay application and without calling for any affidavits. The matter was heard at length. In contradicting the submissions made by the learned Counsel for the appellant, it has been submitted by the learned Counsel for the respondent T.N. Singh that on 17th March, 2015 (CONCOR) floated tender for handling and transportation of container and cargo at Inland Container Depot, Amingaon, Assam for a period of four years. On 6th April, 2015 respondent T.N. Singh sought for tender documents without cost under bona fide impression that any enterprise registered under the MSME Act, can obtain the same free of cost. On 6th April, 2015 respondent T.N. Singh sought for tender documents without cost under bona fide impression that any enterprise registered under the MSME Act, can obtain the same free of cost. On 8th April, 2015 Chief General Manager of the appellant CONCOR directed that the respondent be provided with the tender document. Tender form was physically issued to the respondent and in turn the respondent physically submitted its bid along with its certificate of enlistment as Medium Enterprise. On 17th April, 2015 the respondent submitted sealed tender form completed in all respect. Appellant CONCOR issued letter of intent on 21st July, 2015 for handling of cargo to the respondent at ICD/Amingaon for a period of four years. It has been contended that issuance of letter of intent amounted to conclusion of the contract between the parties. Respondent re-submitted performance bank guarantee of Kotak Mahindra Bank for a sum of Rs.22,65,000/- (Rupees Twenty Two Lakh Sixty Five Thousand) only, which is valid till 20th July, 2019. However, the said bank guarantee has been revised and validity date extended to 20th January, 2020. The revised bank guarantee was received by the appellant without any objection. Appellant CONCOR issued show-cause notice to the respondent alleging that respondent is not eligible for benefits of MSME. Respondent was called upon to state why no action may be initiated as per clause 7.6(f) under Chapter II of the tender document. Respondent made representations time and again confronting with the stand taken by the appellant CONCOR. On 28th August, 2015 Section 9 application (A.P. No. 1509 of 2015) was filed by the respondent praying that CONCOR be restrained from giving effect to show-cause notice dated 11th August, 2015. Subsequently, a notice of termination was issued on 28th August, 2015 which was annexed to the supplementary affidavit affirmed on 31st August, 2015 filed before the Hon'ble Single Bench in connection with A.P. No. 1509 of 2015. It is submitted by the learned Counsel for the respondent that the notice of show-cause as also the letter of termination has been issued illegally by the appellant and the same cannot be binding upon the respondent. the learned Counsel for the respondent submits that the appeal has been preferred against an interim order dated 15th September, 2015 in A.P. No. 1509 of 2015. the learned Counsel for the respondent submits that the appeal has been preferred against an interim order dated 15th September, 2015 in A.P. No. 1509 of 2015. The Appeal Court should not normally interfere with an interim order which is a discretionary relief and further that no appeal has been preferred against the order dated 4th September, 2015 whereby the appellant was restrained from giving effect and further effect to the letter of termination passed on 28th August, 2015. Learned Counsel for the respondent has relied on a judgment in the case of Rashmi Metaliks Ltd. & Anr. v. Kolkata Metropolitan Development Authority & Ors. reported in (2013) 10 SCC 95 . In this case the Division Bench of Calcutta High Court in upholding the decision concurrently concluded that the appellant company had failed to comprehensively correspond to the essential terms of the tender and, therefore, its offer contained in the said tender was ineligible for consideration. In allowing the appeal filed by the company the Hon'ble Apex Court held that the disqualification of the appellant company on the ground of it having failed to submit its latest income tax return along with its bid is not sufficient reason for disregarding its offer/bid. It has been held by the Hon'ble Apex Court that the tendering authority ought to have brought this discrepancy to the notice of the appellant company and if even, thereafter, no rectification had been carried out, the position might have been appreciably different. It is profitable to set out paragraphs 17, 18 and 19 of the said judgment which supports the case of the respondent here. "17. So far as Clause (j) of the detailed notice inviting E-tender No. 01/KMDA/MAT/CE/2013-14 dated 10-5-2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the income tax return has been filed by the appellant Company and scrutinised by us. For Assessment Year 2011-2012, the gross income of the appellant Company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was nil, but substantial tax had been deposited. 18. In the course of hearing, the income tax return has been filed by the appellant Company and scrutinised by us. For Assessment Year 2011-2012, the gross income of the appellant Company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was nil, but substantial tax had been deposited. 18. We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the appellant Company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the appellant Company, and not denied by the learned counsel for the respondent Authority, that the financial bid of the appellant Company is substantially lower than that of the others, and, therefore, pecuniarily preferable. 19. In this analysis, we find that the appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the appellant Company on the ground of it having failed to submit its latest income tax return along with its bid is not sufficient reason for disregarding its offer/bid. The respondents are directed, therefore, to proceed further in the matter on this predication. The parties shall bear their respective costs." 24. In the present case, the stand taken by the appellant that the respondent being a medium enterprise took the benefit of not paying the cost for the tender application being Rs.2,500/- (Rupees Two Thousand Five Hundred) only, and avoided earnest money deposit cannot be the only ground for termination of letter of intent. Such deficiency could have been rectified had it been pointed out at the beginning by the appellant and further that the mistakes made by the bidder is not so fatal which could vitiate the tender process. It is on record that up to the issuance of letter of intent the appellants kept silent with regard to the alleged disqualification of the bidder. It is on record that up to the issuance of letter of intent the appellants kept silent with regard to the alleged disqualification of the bidder. The respondent represented them as medium enterprise but they never described it to be micro or small enterprise. Mere non-payment of the cost for tender paper for a sum of Rs. 2,500/- (Rupees Two Thousand Five Hundred) only, does neither amount to misrepresentation nor false representation, nor fraudulent inducement to argue that the contract got vitiated. Reliance has been placed in the case of Printers (Mysore) Pvt. Ltd. v. Pothan Joseph reported in AIR 1960 SC 1156 by the learned Counsel for the respondent. Referring to the said judgment it has been pointed out that where the discretion vested in the Court under Section 34 has been exercised by the trial Court the Appellate Court should be slow to interfere with the exercise of the said discretion. In the said judgment the Hon'ble Apex Court has held that the Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. However, if the Appellate court finds that in exercising its discretion the trial Court had acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be upon to the Appellate Court to interfere with the trial Court's exercise of discretion. The ratio decided in this case favours the stand taken by the respondent because there is nothing apparent from the order impugned that the trial Court has exercised a jurisdiction unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach as observed by the Hon'ble Apex Court. 25. Reliance has also been placed in the case of Wander Ltd. & Anr. v. Antox India Pvt. Ltd. reported in AIR 1990 (Supp) SCC 727. The said case is in the same line with that of Printers (Mysore) Pvt. Ltd. (supra). 25. Reliance has also been placed in the case of Wander Ltd. & Anr. v. Antox India Pvt. Ltd. reported in AIR 1990 (Supp) SCC 727. The said case is in the same line with that of Printers (Mysore) Pvt. Ltd. (supra). Referring to the said decision the learned Counsel for the respondent has drawn the attention of the Court to the ratio decided in the said decision which is principally a question as to whether Appellate Court should interfere with the trial Court's order granting discretionary relief. In the cited decision the trial Judge declined to grant interlocutory injunction. The respondent before the Supreme Court Antox (supra) preferred an appeal before the Division Bench. The Division Bench, however, re-assessed the material considered by the Hon'ble Single Judge and came to a different conclusion. The Hon'ble Apex Court allowed the appeal and set aside the order of the Division Bench holding that the Appellate Court will not interfere with the exercise of the discretion of the Court on first instance and substituted its discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. The ratio of the judgment supports the contention raised by the respondent in this appeal. 26. We agree with the submissions made by the learned Counsel for the respondent and in tune with the ratio of the above judgments; we also hold that Hon'ble Single Bench has committed no illegality in issuing an interim order restraining the appellants from acting any further on the basis of its letter of termination passed on 28th August, 2015. The relief so granted by the Hon'ble Single Bench is of discretionary nature and we do not propose to interfere with the same in the facts and circumstances of the case. 27. The learned Counsel for the respondent has placed reliance on a judgment in the case of G.J. Fernandez v. State of Karnataka & Ors. reported in (1990) 2 SCC 488 . 27. The learned Counsel for the respondent has placed reliance on a judgment in the case of G.J. Fernandez v. State of Karnataka & Ors. reported in (1990) 2 SCC 488 . From the cited case it appears that the Hon'ble Single Judge of the High Court dismissed the petition taking a view that the pre-requisites for supply of tender forms were only the three conditions stood in para I of the notice inviting tender and that the details called for in para V could be applied any time. The Division Bench, on appeal, did not express any clear opinion as to the nature of the requirements stood in para V but was satisfied, on an overall view, that there was nothing unfair or arbitrary about the award of the contract to the MCC. Before the Hon'ble Supreme Court defects in respect of the first and second requirements of para I of the NIT were pointed out. It was also contended that the certificate as required by para V (d) regarding their execution "hollow cement block works" has not been supplied along with the requisite for application of tender forms but had been supplied much later. Two questions arose before the Supreme Court:- (1) Whether there was any difference between the requirements in paras I and V and whether only para I and not para V sets out the pre-conditions of eligibility to submit a tender for the contract; and (2) Should MCC have been denied altogether the right to tender for the contract consequent on the delay in submitting this document? 28. The appeal was dismissed by the Supreme Court and agreed with the contention of the respondent holding that where a person complains that a departure from the qualification has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition. The Hon'ble Apex Court held that assuming for purposes of argument that there has been a slight deviation from the terms of the Notice Inviting Tender (NIT) does not deprive the appellant of its right to be considered for the contract, on the other hand, its tender has received due and full consideration. The ratio of the judgment fully favours the case made out by the respondent. 29. The ratio of the judgment fully favours the case made out by the respondent. 29. In the instant case, the respondent had forwarded a copy of the acknowledgment and upon perusal of the said acknowledgment the appellant's officers directed that the tender documents should be given free of cost. There was a tender evaluation committee which conformed from the MSME Department that the respondent's acknowledgment is a valid document. It has been strenuously argued by the learned Counsel for the appellant that because of the judgment of the Delhi High Court Division Bench, the Hon'ble Single Bench is estopped from entertaining the application under Section 9 of the Arbitration and Conciliation Act, 1996. The decision of the Division Bench of the Delhi High Court pertains to an e-Tender which is evident from paragraph 2 of the said judgment where a bidder was to indicate whether it was exempted as a small or micro enterprise or whether it was applying under the general category. In that case the respondent had exercised the option that it was bidding as a small or micro enterprise. In the said judgment it was accepted that the respondent had exercised the option in the e-Tender indicating that it was bidding as a micro/small enterprise whereas the present respondent is neither micro nor small enterprise instead it has merely stated that it is MSME registered and disclosed an acknowledgment which shows it to be a medium enterprise. Therefore, the judgment delivered by the Delhi High Court is distinguishable on facts with that of the present case and that on the ratio of the said judgment the issue estoppel cannot be argued here. 30. On considerations of the materials on record and the submissions advanced by the learned Counsels for the parties we do not find anything from the record that the respondent has concealed any fact or has provided any wrong information or has suppressed or concealed any information in his tender to make the bid favourable for acceptance opposed to the tender conditions. The respondent has not committed any act of fraud either, as sought to be argued by the appellant. The respondent has not committed any act of fraud either, as sought to be argued by the appellant. The appellant scrutinised the bid and, in fact, sought for conformity from the MSME Department before opening the bid of the respondent in the event, respondent's bid was not in terms of the tender, the appellant would have summarily rejected the respondent's tender as in terms of the tender offer as non-entitled person to the exemptions for payment of EMD would have been liable to be summarily rejected. After issuance of the letter of intent the respondent submitted security deposit as required under the agreement and in addition, pursuant to such letter of intent they have invested men and money for performance of the contract. The decision for termination of the contract unilaterally taken by the appellant has caused severe prejudice to the respondent whereas the appellant has not suffered any loss whatsoever. This being the situation we hold that it was not justified on the part of the appellant to take a decision to withdraw the letter of intent and to terminate the contract awarded in favour of the respondent. 31. In view of our observation above we hold that the order impugned does not call for any interference, we uphold the same and dismiss the appeal and all connected applications. 32. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. Indira Banerjee, J. - I agree. 33. Later : 34. Prayer for stay made by the appellant is considered. We are not inclined to grant any stay. Therefore, stay is refused.