JUDGMENT : P.G.M. PATIL, J. 1. This intra Court appeal is filed by the appellant questioning the order dated 08.03.2019 passed by the learned Single Judge in W.P.No.201233/2019. 2. The facts of the case are that the appellant in pursuance of E-Tender notification dated 12.10.2018 issued by the respondent No.2 submitted his bid for the Vijayapur Central Bus Stand refreshment/canteen through online and made his bid for an amount of Rs.9,56,862/- per month including GST as shown in the E-procurement portal by paying EMD amount of Rs.15,37,305/-. The appellant paid the entire amount by letter dated 05.01.2019 for the execution of agreement. Respondent No.2 authority instead of considering the request for execution of agreement passed an order dated 04.01.2019 by which respondent No.2 forfeited the EMD amount and blacklisted the appellant by making wrong interpretation contrary to the E procurement portal information uploaded by respondent No.2. It is very clear that the bid amount, i.e. financial bid is inclusive of statutory taxes. 3. Appellant being aggrieved by the impugned order dated 04.01.2019 preferred Writ petition No.200145/2019 which was allowed and the Court was pleased to quash the order dated 04.01.2019 and remanded the matter to respondent No.2 for reconsideration. The appellant appeared before the respondent No.2 on 14.02.2019 and made his oral and written submission. Further respondent No.2 without considering the relevant facts passed the order rejecting highest offer made by the appellant and forfeited EMD amount deposited by him and also blacklisted him for two years. The said order was challenged in W.P.No.201233/2019. Learned Single Judge by an order dated 08.03.2019 set aside the order to the extent of blacklisting the appellant for a period of two years and upheld the remaining portion of the order dated 14.02.2019. Therefore, appellant has filed this appeal. 4. Learned counsel for the appellant submitted that the appellant has shown the bid amount of Rs.9,56,862/- per month including GST as per the Annexure-C and D and that the respondent No.2 issued Annexure-F dated 01.11.2018 directing the appellant to deposit Rs.72,46,688/- in order to execute the agreement and the same is not in terms of the tender notification. Learned counsel further submitted that he requested respondent No.2 making it clear that he has shown the bid amount of Rs.9,56,862/- per month which includes GST at 18% and that it was made through online under the portal provided by respondent No.2. Learned counsel further submitted that he requested respondent No.2 making it clear that he has shown the bid amount of Rs.9,56,862/- per month which includes GST at 18% and that it was made through online under the portal provided by respondent No.2. On the other hand, respondent No.2 without considering his request proceeded to issue Annexure-R in the writ petition dated 14.02.2019 forfeiting EMD amount of Rs.15,37,305/- and also blacklisting the appellant for a period of two years. Learned counsel further submitted that learned Single Judge without considering Annexure-C and D proceeded to hold that the appellant has not complied with the notice issued by the respondent No.2 and disputed such communication. He failed to deposit the amount as stated in Annexure-F and consequently set aside the order to the extent of blacklisting the appellant. However, remaining portion of the order dated 14.02.2019 at Annexure-R was up held. 5. Therefore, learned counsel submitted to direct respondent No.2 to accept the bid amount shown in the portal at Annexure-C and D and to execute agreement in favor of the appellant. 6. Per contra, learned counsel for the respondent submitted that the appellant has not shown the bid amount separately in terms of Annexure-A E-Tender Notification which clearly states that the bidder has to mention the financial offer and GST at 18% separately. Though the bid made by the appellant was highest and was accepted, it was subject to the compliance of the terms of the Tender Notification at Annexure-A which the appellant failed to comply. Learned counsel further submitted that on 01.01.2019 the appellant himself requested respondent No.2 as per Annexure-J, stating that he is ready to deposit an amount of Rs.59,06,757/- and that he has made a bid for a total amount of Rs.9,56,862/- including GST. Learned counsel further submitted that respondent No.2 issued an endorsement dated 02.01.2019 in reply to Annexure-K, directing the appellant to deposit an amount of Rs.9,56,862/- and GST at 18% separately. Respondent No.2 informed the appellant to deposit the remaining amount immediately otherwise EMD amount would be forfeited and he would be blacklisted. Learned counsel further submitted that respondent No.2 issued an endorsement dated 02.01.2019 in reply to Annexure-K, directing the appellant to deposit an amount of Rs.9,56,862/- and GST at 18% separately. Respondent No.2 informed the appellant to deposit the remaining amount immediately otherwise EMD amount would be forfeited and he would be blacklisted. Therefore, learned counsel for the respondent submitted that the appellant has not complied with the terms and conditions of the Tender Notification at Annexure-A and as such respondent No.2 was forced to issue Annexure- R dated 14.02.2019 and forfeited EMD amount of the appellant and also blacklisted him for a period of two years. Therefore, there are no grounds to interfere with the order of learned Single Judge. 7. We have heard the learned counsel for the parties. 8. Short question which arise for consideration in this appeal is as to whether the appellant has made out grounds to interfere with the impugned order passed by the learned Single Judge in W.P.No.201233/2019 dated 08.03.2019. 9. The dispute between the parties is limited only to the question as to whether the bid amount of Rs.9,56,862/- per month deposited by the appellant is inclusive of GST at 18% or it is exclusive of GST?. It is the contention of the appellant that as per the portal Annexure-C he made bid online and that in Annexure- C, there is no separate column to show the financial offer and GST and therefore, according to him under the column financial offer inclusive of statutory tax (costs) he has shown the amount of Rs.9,56,862/- in terms of Annexure-D and according to him said amount is inclusive of GST. In Annexure-D there is column at Sl.No.1 regarding GST and in the column remarks the appellant has shown an amount of Rs.1,45,382/-18% GST added with final bid. Therefore, bid made by the appellant is not in accordance with Tender Notification Annexure-A. After accepting bid of the appellant as highest, respondent No.2 informed the appellant under Annexure-F directing him to deposit a sum of Rs.61,17,591/- towards security deposit, Rs.9,56,862/- towards financial bid for one month, and Rs.1,72,235/- towards 18% GST total amounting to Rs.72,46,688/- and on payment of the same agreement would be executed. The appellant instead of complying with Annexure-F went on corresponding with respondent No.2 only on the contention that he has made payment of Rs.9,56,862/- which includes an amount of Rs.1,72,235/- towards GST. The appellant instead of complying with Annexure-F went on corresponding with respondent No.2 only on the contention that he has made payment of Rs.9,56,862/- which includes an amount of Rs.1,72,235/- towards GST. Respondent No.2 rejected the claim of the appellant that the said amount includes GST. Subsequently respondent No.2 has issued notice as per Annexure-G1 dated 10.12.2018, final notice as per Annexure-G2 dated 14.12.2018 and another final notice as per Annexure- G3 dated 17.12.2018. Thereafter on 24.12.2018, the appellant requested respondent No.2 under Annexure10 H, with the same contention that in the reminder letter issued by respondent No.2, it is mistakenly shown that total rent is Rs.9,56,862/- and that 18% of GST has to be paid separately which comes to Rs.1,72,235/-. Ultimately respondent No.2 issued Annexure-K on 02.01.2019 directing the appellant to pay remaining amount or his EMD amount would be forfeited and he would be blacklisted. In spite of all these correspondence, the appellant failed to comply the terms of E-Tender Notification. Therefore, respondent No.2 finally issued Annexure-R, dated 14.02.2019 forfeiting EMD amount of Rs.15,37,305/- and also blacklisted the appellant for a period of two years. 10. The appellant questioned the order dated 14.02.2019 at Annexure-R before the learned Single Judge in W.P.No.201233/2019. Learned Single Judge has observed that the conduct of the petitioner therein shows that though he was highest successful bidder to that extent letter has been issued dated 01.12.2018 and he was directed to comply within a period of seven days to the extent of remitting the Security Deposit and necessary fees which he has not complied. Consequently, notices issued by respondent No.2 are also considered. Learned Single Judge however held that without giving opportunity blacklisted the appellant herein is in violation of principle of natural justice, even though, certain words have been stated in the Tender Notification in respect of unsuccessful bidders. Therefore, learned Single Judge allowed the writ petition to the extent of setting aside the blacklisting of appellant for a period of two years and remaining portion of the order dated 14.02.2019 at Annexure-R was upheld. 11. Learned counsel for the appellant alternatively submitted that forfeiture of EMD amount is illegal in view of Section 73 of Indian Contract Act and the same may be ordered to be refunded to the appellant. 12. 11. Learned counsel for the appellant alternatively submitted that forfeiture of EMD amount is illegal in view of Section 73 of Indian Contract Act and the same may be ordered to be refunded to the appellant. 12. Per contra, learned counsel for respondent No.2 relying on the judgment in the case of Caretel Infotech Ltd. vs. Hindustan Petroleum Corporation Limited and Others arising out of Civil Appeal No. 3588/2019 decided by the Hon'ble Supreme Court on 09.04.2019 submitted that the Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision making process would not suffice. 13. Hon'ble Supreme Court in paragraph No.36 held as follows: "36. We consider it appropriate to make certain observations in the context of the nature of dispute which is before us. Normally parties would be governed by their contracts and the tender terms, and really no writ would be maintainable under Article 226 of the Constitution of India. In view of Government and Public Sector Enterprises venturing into economic activities, this Court found it appropriate to build in certain checks and balances of fairness in procedure. It is this approach which has given rise to scrutiny of tenders in writ proceedings under Article 226 of the Constitution of India. It, however, appears that the window has been opened too wide as almost every small or big tender is now sought to be challenged in writ proceedings almost as a matter of routine. This in turn, affects the efficacy of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by Government and Public Sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector. 14. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector. 14. On the basis of this judgment learned counsel for respondent No.2 submitted that the appellant and respondent No.2 are bound by the terms and conditions of E-Tender notification at Annexure-A and that condition No.9 (5) provides for forfeiture of EMD amount and as such the appellant is not entitled for refund of the said amount. 15. The contention of respondent No.2 cannot be accepted in view of provision of section 73 of the Indian Contract Act. Section 73 of the Indian Contract Act reads as follows: "When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss of damage caused to him thereby, which naturally arose in the usual course of things from such breach or which the parties knew when they made the contract, to be likely to result from the breach of it." 16. Therefore the question of damages, compensation or loss of cost to other party in view of breach of contract has to be paid by the party who has broken the contract. It has to be further noticed that: "No pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. The Court in the first place must decide that the defendant is liable and then it should proceed to assess what that liability is, but, till that determination there is no liability at all upon the defendant", as provided under section 73 of the Indian Contract Act. 17. Admittedly, in the present case, there is no concluded contract between the appellant and respondent No.2. He has given only acceptance of the highest bid of the appellant in pursuance of E-Tender Notification at Annexure-A. Therefore, question of claiming damages or loss arising out of the breach of the contract under section 73 of the Indian Contract Act, arises only in case of concluded contract. He has given only acceptance of the highest bid of the appellant in pursuance of E-Tender Notification at Annexure-A. Therefore, question of claiming damages or loss arising out of the breach of the contract under section 73 of the Indian Contract Act, arises only in case of concluded contract. Unless respondent No.2 in the present case establishes that any loss or damage was caused to him because of breach of contract by the appellant, he is not entitled to forfeit EMD amount, even though it is part and parcel of terms and conditions of Annexure-A. 18. In the instant appeal, our view is fortified by the Hon'ble Supreme Court in the case of Mohammed Gazi vs. State of M.P. and others,2004 4 SCC 342 . In paragraph No.3 of the judgment, Hon'ble Supreme Court has observed as follows: "3. The facts of the case giving rise to the determination of the questions of law formulated hereinabove are that a tender notice inviting tenders for disposal of Tendu leaves for 1995 session was issued by the respondent-State on 20th November, 1995. Respondent No.4 offered his tender in respect of different lots including Lot No.597 and was declared the highest bidder for the said lot on 20th December, 1995. On account of some complaints made by other bidders and on account of alleged manipulations on the part of the official-respondents the highest bid of the respondent No.4 was not accepted and his tender cancelled by order dated 27th January, 1996. Fresh notice for tenders for the aforesaid lot were issued on 20th May, 1996 in which the appellant herein was declared the highest bidder. In the meantime, the respondent No.4 filed writ petition No.2147/96 in the High Court challenging the order of cancellation of tender dated 27th January, 1996 and re-tender notice dated 23rd May, 1996. He also prayed for interim relief to the extent that pursuant to the fresh tender notice dated 20th May, 1996 the official-respondents be restrained from executing any fresh agreement. The High Court vide order dated 18.6.1996 issued an interim direction restraining the officialrespondents from taking any step pursuant to the fresh tender notice. It is pertinent to note that the appellant herein was not impleaded as a party-respondent in the aforesaid writ petition. The High Court vide order dated 18.6.1996 issued an interim direction restraining the officialrespondents from taking any step pursuant to the fresh tender notice. It is pertinent to note that the appellant herein was not impleaded as a party-respondent in the aforesaid writ petition. He received a letter from officialrespondents 1 to 3 calling upon him to execute purchase agreement as per Clause 7(2) of the tender notice with the Conservative of Forests after depositing the balance security as shown in the letter dated 1.9.1996. Consequently, the appellant deposited a sum of Rs.2,68,217.72 as security amount. The appellant also filed an application for intervention in the writ petition filed by respondent No.4 which was rejected on 1.4.1997. The writ petition filed by the respondent No.4 was disposed of by a learned Single Judge of the High Court by quashing order dated 27.1.1996 to the extent by which the earnest money deposited by respondent No.4 had been directed to be forfeited and a direction was issued to refund the earnest money to respondent No.4. After disposal of the aforesaid writ petition the appellant requested the respondents 2 and 3 to refund his security amount of Rs.2,68,217.72 vide his letter dated 24.4.1997. He pleaded that since Tendu leaves, which was a perishable item, had already perished and rotten with the result that its value had become useless by lapse of time. He also prayed for 18% interest on the security amount which was alleged to have illegally been detained by official-respondents for no fault of the appellant. It is contended by the appellant that after his letter dated 24.4.1997 the respondent No.2 sent an ante dated letter dated 10.4.1997 directing the appellant to execute the agreement by 10.5.1997 and deposit the remaining tender price in four instalments as detailed therein. Apprehending that the authorities might proceed to forfeit his earnest money and blacklist him, the appellant was constrained to file writ petition No.1934/97 in the High Court praying for quashing of order dated 1.4.1997 and refund of earnest money along with an amount of Rs.10 lakhs claimed as damages. He further prayed that he should not be compelled to enter into an agreement in pursuance to letter dated 19.6.1996. He further prayed that he should not be compelled to enter into an agreement in pursuance to letter dated 19.6.1996. The writ petition was allowed by a learned Single Judge of the High Court on 10.12.1997 with a direction to the respondents 1 to 3 to refund the security amount to the appellant forthwith. Not satisfied with the order of the learned Single Judge, the respondents 1 to 3 filed a Letters Patent Appeal before the Division Bench of the High Court which was partly allowed vide the order impugned in this appeal. 19. Further the Hon'ble Supreme Court referred the order passed by the learned Single Judge in the said case which is reproduced as follows in paragraph 5. 5. In the writ petition No.1934/97 filed by the appellant, the learned Single Judge of the High Court held on facts: "In view of these circumstances, this Court has no hesitation in holding that the contract between the parties has frustrated. The respondents are not entitled to compel the petitioner to purchase or lift the Tendu leaves at the price quoted by him. The respondents are duty bound to return the money received from the petitioner at the time of submission of the tender. If the respondents suffer any losses because of the acts of the respondent No.4 they are free to take proper legal proceedings before the competent court of law for recovery of damages if the laws permit them. The petition is allowed. No costs." 20. Therefore, in the said case Division Bench of the High Court set aside the order passed by the learned Single Judge and the Hon'ble Supreme Court restored the order passed by the learned Single Judge extracted above. Therefore, it is crystal clear from the above judgment that respondent No.2 cannot proceed to forfeit EMD amount and blacklist the appellant. Learned Single Judge has already set aside the order to the extent of blacklisting the appellant and therefore this Court relying on the above referred judgment in the case of Mohd.Gazi stated supra hold that the appellant is entitled for refund of EMD amount of Rs.15,37,305/-. The appellant has not made out any other ground to interfere with the order of the learned Single Judge insofar as directing respondent No.2 to execute an agreement by accepting the bid amount deposited by the appellant. The appellant has not made out any other ground to interfere with the order of the learned Single Judge insofar as directing respondent No.2 to execute an agreement by accepting the bid amount deposited by the appellant. Learned Single Judge ought to have considered as to whether the appellant is entitled for refund of EMD amount when remaining portion of Annexure-R was upheld. Therefore, we are of the view that, it needs for interference in the impugned order passed by the learned Single Judge in the writ petition as stated supra. Accordingly this appeal is allowed to the extent of directing the respondent No.2 for refund of EMD amount to the appellant. 21. Accordingly, writ appeal is disposed of with a direction to respondent No.2 to refund EMD amount of Rs.15,37,305/- forthwith to the appellant in accordance with law.