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2021 DIGILAW 828 (MP)

Anshuman Shukla v. State Of M. P.

2021-12-16

VIVEK AGARWAL

body2021
JUDGMENT : 1. This First Appeal has been filed on behalf of the plaintiff/appellant under Section 96 of Code of Civil Procedure being aggrieved of judgment dated 21.08.1997 passed by learned 11th Additional District Judge, Jabalpur in RCS No.592A/1994. 2. Appellant/plaintiff's contention is that notice inviting tender was issued by the Executive Engineer Public Works Department, Division No.2, Jabalpur for construction work at Government Engineering College, Jabalpur in which last date to submit bids was 07.10.1989. Thereafter, Superintending Engineer, Public Works Department (Building & Roads) Circle, Jabalpur had issued Memo No.3169/G/39-46/89 dated 03.11.1989 to accept general conditions of tender. Thereafter plaintiff had participated in the meeting on 02.12.1989. 3. It is also not in dispute that a corrigendum was issued seeking amended offers to the original offer which were called vide notification dated 07.10.1989 and plaintiff/appellant had submitted his original bid on 16.11.1989 and revised bid on 21.12.1989. He had deposited a sum of Rs.22,800/- as earnest money. 4. It is also not in dispute that a corrigendum was issued seeking amended offers to the original offer which were called vide notification dated 07.10.1989 and plaintiff/appellant had submitted his original bid on 16.11.1989 and revised bid on 21.12.1989. He had deposited a sum of Rs.22,800/- as earnest money. 5. Appellant's contention is that when his earnest money was not refunded and he was informed that it has been forfeited in favour of the department on account of his not executing an agreement after acceptance of his bid, he had given a notice under Section 80 CPC which was not replied to and thereafter had filed a suit for recovery. 6. Appellant's main ground to contest this appeal is that since the offer was valid only for a period of four months therefore, any acceptance after period of four months has no validity authorizing the respondents to forfeit the earnest money. 7. Shri S. Rao, in his support has placed reliance on the judgment of Division Bench of this Court in case of Ashok Kumar Jain Vs. 7. Shri S. Rao, in his support has placed reliance on the judgment of Division Bench of this Court in case of Ashok Kumar Jain Vs. State of M.P. and Others, ILR (2014) M.P. 371, wherein it is held that if offer is accepted after the validity period of offer which was 120 days' in that case i.e. 11.12.2012 and offer was accepted on 27.12.2012 then if appellant informs that he is not interested in work and his earnest money be refunded then respondents were under obligation to accept the request for refund of earnest money in-as-much as offer had lapsed and it could no longer have been accepted and under such facts and circumstances, Division Bench of this Court directed refund of earnest money along with 6 per cent interest there on. 8. Learned trial Court had framed following issues:- 1(a) whether plaintiff had followed the terms and conditions of the contract with the defendant 1(b) whether defendant has unauthorizedly and illegally forfeited earnest money of the plaintiff. 1(c) if yes, then whether plaintiff is entitled to refund of earnest money of Rs.22,800/- along with interest. (2) relief and cost of suit. 9. The aforesaid questions 1(a), (b) and (c) have been answered in negative and question no.2 has been answered that suit has been dismissed with cost. 10. A perusal of the evidence which has come on record reveals that plaintiff had examined himself as, (the sole witness) PW-1 in his crossexamination in para-11, this witness has admitted that he had received letter exhibit P-2 dated 28.04.1995 sent by the Engineer-in-Chief to the Chief Engineer, Public Works Department, Jabalpur. He also admitted that he had received letter exhibit P-3 dated 18.05.1990 informing him that his offer has been accepted and asking him to execute a contract within 15 days' for which intimation was already sent to him earlier. This witness also admitted that he had received communication exhibit D-4 dated 16.04.1990 which was written in response to the communication made by the plaintiff informing him that the validity of the offer is up to six months' from the date of receipt of tender and hence, earnest money cannot be returned. This witness has also admitted receipt of documents exhibit D-6 which is dated 08.05.1990. He also accepted receipt of communication dated 29.05.1990 exhibit D-7 by which his earnest money was forfeited. This witness has also admitted receipt of documents exhibit D-6 which is dated 08.05.1990. He also accepted receipt of communication dated 29.05.1990 exhibit D-7 by which his earnest money was forfeited. This witness further admitted in crossexamination that as per the rates which were furnished by him he would have faced loss 11. Defendant's had examined Vinod Kumar Sharma (DW-1) Executive Engineer who deposed that he was posted as Executive Engineer, Public Works Department, Division No.2, Jabalpur from 1987 to April, 1992 when NIT was floated, offers were invited and revised offer from the plaintiff was received on 21.12.1989, this revised offer was sent to the Sate for acceptance. On 08.05.1990, intimation was sent to the plaintiff through departmental peon Daduram, (DW-2) his mother was present at home and she had refused to accept the letter. There after on 10.05.1990 when plaintiff had appeared in the office of the defendant situated at Civil Lines, Clerk Dakate tried to give him intimation but he refused to accept the letter, thereafter letter was sent by registered post A.D. on 10.05.1990, acknowledgment of which was received by the department which was marked as exhibit D-1 and photocopy as D-1C, this letter was received by Anshuman Shukla on 17.05.1990. In the meanwhile, on 12.05.1990, intimation about acceptance of his offer was given to the plaintiff Anshuman Shukla vide telegram exhibit D-2. Plaintiff had since not executed the agreement within 15 days' of receipt of the intimation, therefore, his earnest money was forfeited. 12. This witness was exhaustibly cross-examined but nothing substantial could be extracted from him so to benefit the plaintiff. Defendants had examined Daduram office peon as DW-2 and he too deposed that he had taken Dak to the residence of the plaintiff and the Dak is contained in exhibit D-6, when he had met a lady. When he had asked about the plaintiff then she had informed that Anshuman Shukla is not at home and had refused to accept any document saying that Anshuman Shukla has instructed her to not to accept any documents from office and thereafter he had returned back from the residence of Shri Anshuman Shukla and had returned said document to Dakate Bade-babu. 13. In cross-examination, this witness admitted that he is not educated but he admitted that on exhibit D-8C, he had made signatures so also Dakate Babu. 13. In cross-examination, this witness admitted that he is not educated but he admitted that on exhibit D-8C, he had made signatures so also Dakate Babu. There is no substantial cross-examination on this witness so to deny his evidence that he had approached the residence of the plaintiff/appellant. 14. There is no cross-examination of the Executive Engineer on the aspect of amendment in the condition of validity of the offer, which is the crux of the matter Executive Engineer DW-1 was not confronted with the document i.e. notice inviting tender and the conditions attached to it that the clause 4.7 was either altered subsequently or did not contain a clause of validity for a period of six months as has been mentioned in the said clause. 15. Therefore, in view of said evidence and failure of the plaintiff to prove his own case that the condition for validity of offer was not six months but only four months, trial Court has not committed any error in answering the issues framed by it as have been mentioned above in negative and dismissing the suit. 16. Judgment of Division Bench in case of Ashok Kumar Jain (supra) has no application to the facts and circumstances of the present case, specially in the light of the fact that plaintiff failed to discharge his burden that the validity of the offer was not six months but only four months, therefore, in view of said facts, appeal fails and is dismissed.