JUDGMENT M.A. Chowdhary, J. – Respondent-J&K State Road Transport Corporation (for short ‘Corporation’) floated tender notice for supply of trucks to the Corporation for catering the left over demand of the Corporation from time to time for the contract period of two years upto 31.03.2014 from the date of acceptance of the offer, inviting offers from the reputed and registered transport groups/firms/companies/associations dealing in transportation of goods. 2. The said tender notice was published vide No.DIP/JK-1720-P dated 24.02.2012, conditioning that a transporter holding minimum fleet of 100 trucks for meeting the left over demand of the Corporation of various Government departments including CA&PD for various stations of Kashmir province with a business turn over not less than Rs.500.00 lac for each of the preceding two financial years may offer quotations; with the further condition that CDR/FDR shall be pledged as security/earnest money deposits in favour of Financial Advisor/Chief Accounts Officer of the Corporation from any scheduled commercial bank. 3. The offers were to be made by the bidders in two separate sealed covers, one containing the technical bid and another financial bid. Along-side the technical bid, the bidders were required to furnish security deposit/earnest money deposit in the shape of CDR/FDR of Rs.40.00 lacs for CHT contract class-I and of Rs.2.00 lac for CHT contract (Class-II). The NIT inter alia provided that in the event the contractor is not able to perform the demand for supply of vehicles, the earnest money deposit/security deposit shall be deemed to have been forfeited. 4. The petitioner-firm while participating in the tendering process quoted the commission at the rate of 37.10%, which on comparative analysis was found the highest bid over all the participating private transporters. The tender process, however, could not be finalized in favour of the petitioner being the highest bidder in the face of the order dated 14.03.2012 passed by this Court in OWP No. 282/2012 instituted by the petitioner-firm. Relevant part of the order is extracted as under :- “…..In meantime, though respondents may proceed with the tender process, they shall not make any final allotment till next date before the bench.” 5. The petitioner-firm, however, before finalizing the contract by respondent-Corporation, on acceptance of its offer, withdrew its offer vide communication No.LRL/12/JKSRTC/937 dated 30.03.2012 and also demanded earnest money deposit to be re-funded. The petitioner-firm, however, before finalizing the contract by respondent-Corporation, on acceptance of its offer, withdrew its offer vide communication No.LRL/12/JKSRTC/937 dated 30.03.2012 and also demanded earnest money deposit to be re-funded. The relevant portion of the said communication is extracted as under for ready reference:- “….We regret to say that on account of oversight of our representative the rates of commission have been quoted unrealistically much higher which are not viable at all and cannot be adopted without compromising on performance which being the old and loyal CHT Contractors of your esteemed Corporation, we cannot even think of. Since the tender process is yet to culminate in allotment of the Contract and signing of the agreement, we humbly request you that our aforementioned tenders may kindly be treated to have been withdrawn ab initio and the EMD amount refunded to us at an early date.” 6. The respondent-Corporation, vide its order No. JKSRTC/GML/CHT/496 dated 10.07.2012, instead of re-funding the earnest money deposit/security deposit in respect of CHT Class-1 and CHT Class-II forfeited the total amount of Rs.42.00 lac. The relevant portion of the said Order dated 10.07.2012 of forfeiture is extracted as under:- “…Now, therefore, in face of the legal opinion so obtained and rulings on such cases by the Supreme Court of India (Krishan Lal V/s FCI & Ors., State of Haryana & Ors. Vs. M/S Malik Traders, National Highway Authority of India Vs. Ganga Enterprises) the CDR’s of M/S Ladakh Road Lines for Rs.40.00 lacs and 02.00 lacs deposited in the shape of security deposit in respect of CHT Class-I and CHT Class-II respectively pursuant to NIT invited on 24.02.2012 are hereby forfeited.” 7. Aggrieved of the said order, the petitioner-firm has preferred this writ petition and the impugned order has been challenged on the ground that it was open to the party to withdraw its offer before its acceptance and since there was no acceptance of the offer of the petitioner-firm, there was no enforceable contract between the parties, as such, there was no occasion of forfeiture of the earnest money deposit in absence of the contract, and its forfeiture is, thus, not only illegal but without any authority of law. The said order has been further assailed on the ground that the judgments of the Hon’ble Supreme Court referred to and relied upon while forfeiting the CDRs have been wrongly relied upon, which are distinguishable. The said order has been further assailed on the ground that the judgments of the Hon’ble Supreme Court referred to and relied upon while forfeiting the CDRs have been wrongly relied upon, which are distinguishable. It was finally prayed that the impugned order be quashed by issuance of writ of certiorari and the respondents be commanded by writ of mandamus to refund the earnest money deposit amounting to Rs.42.00 lac in favour of the petitioner-firm along-with interest at banking rate with effect from 30.03.2012 till its realization in full and final. 8. Respondents in their reply pleaded that the petitioner-firm had participated in the tender process and quoted their commission at the rate of 37.10% and being the highest bidder, over all other participating transporters was entitled to be allotted the tender. It is further pleaded that the respondents had completed all the formalities, however, formal allotment order in favour of the petitioner could not be made in the face of the order dated 14.03.2012 passed by this Court in OWP No.282/2012 instituted by the petitioner-firm. It is further pleaded that though the respondent-Corporation had completed the process, however, the allotment could not be made in view of the interim order of this Court and that the Corporation was compelled to extend the earlier contract granted to the petitioner-firm on the less commission @ 11.5%, detrimental to the financial interests of respondent-Corporation. Furthermore, it is pleaded that the petitioner-firm without any reason, rhyme or justification, acting unilaterally, withdrew its offer at the eleventh hour vide communication No. LRL/12/JKSRTC/937 dated 30.03.2012 despite of the fact that all the requisite formalities for conclusion of the contract had been completed. The respondents further pleaded that the act of the petitioner-firm, withdrawing its offer, by taking advantage of the situation created by it by instituting the writ petition OWP No.282/2012 and the orders passed therein forcing the Corporation to grant extension to the allotment order dated 22.03.2010 vide order of the Corporation bearing No. JKSRTC/GML/CHT/Ext/Kmr/2012-14/429 dated 31.03.2012 on an earlier commission of 11.5% as against the commission of 37.10% offered by the petitioner-firm. Respondent-Corporation was thus, made to suffer a huge financial loss by the acts of omission and commission of the petitioner-firm, necessitating forfeiture of the earnest money deposit of the petitioner on having committed default. Respondent-Corporation was thus, made to suffer a huge financial loss by the acts of omission and commission of the petitioner-firm, necessitating forfeiture of the earnest money deposit of the petitioner on having committed default. It is further stated that the conduct of the petitioner-firm in obtaining the stay order and to perpetuate the order of extension issued by the respondent-Corporation in its favour multiplied the loss caused to the respondent-Corporation and the public interest wedded thereto. When OWP No. 954/2012, another writ petition filed by the petitioner, was reserved for judgment by the Court, the petitioner-firm instituted a civil suit before the court of learned Sub Judge, Ganderbal on 05.09.2012 on the same facts and grounds of law as had been raised in OWP No. 282/2012 and obtained the order of stay on 05.09.2012 against the fresh NIT dated 14.08.2012 issued by the respondent-Corporation. The said order remained in operation till 01.03.2013 despite the objections filed by the answering respondents on 12.09.2012 and the arguments were advanced by them on 20.11.2012 and 18.12.2012. The court of learned Sub Judge, Ganderbal, however, vide order dated 01.03.2013 dismissed the application for grant of interim relief. The petitioner-firm, defying the orders passed by this Court in OWP No. 954/2012, instituted an appeal before the court of learned District Judge, Ganderbal, who was pleased to pass yet another order of stay dated 25.03.2013. It is stated by the respondent-Corporation that the aforesaid litigative thrust maintained by the petitioner-firm is an abuse of process of law to perpetuate the order of extension resulting into loss of commission to the Corporation. However, the civil appeal was later on withdrawn by the petitioner immediately after the Division Bench of this Court was pleased to summon the records of the said suit from the courts below vide order dated 08.04.2013 passed in LPA No. 173/2012. It has been finally pleaded that due to the conduct of the petitioner-firm, the principles of law as referred to by the petitioner in the grounds contained in the writ petition are not at all applicable to the facts of the case and it was prayed to dismiss the writ petition with costs. 9. Heard and considered. 10. Mr. It has been finally pleaded that due to the conduct of the petitioner-firm, the principles of law as referred to by the petitioner in the grounds contained in the writ petition are not at all applicable to the facts of the case and it was prayed to dismiss the writ petition with costs. 9. Heard and considered. 10. Mr. Qayoom, learned counsel for the petitioner-firm, argued that though the petitioner-firm had participated in response to the tender notice issued by the respondent-Corporation and had also offered highest bid of the commission to be paid to the respondent-Corporation, but realizing that the offer of the commission at the rate of 37.10% was exorbitant, withdrew from the process which was well within its rights, as such, the offer of the petitioner-firm had not been accepted by the respondent-Corporation and contract cannot be said to have been concluded. The respondent-Corporation should have refunded the amount of earnest money deposit/security deposit to the petitioner-firm but instead of doing so, the respondent-Corporation very conveniently, without any authority of law forfeited the same in its favour illegally by passing the impugned order. It has been further argued that the Corporation has wrongly placed reliance on the judgments of the Supreme Court, while passing the impugned order forfeiting the earnest money deposit/security deposit of the petitioner-firm. He has argued that the earnest money deposit/security deposit, in view of the conditions of the tender notice, could have been forfeited only when the petitioner-firm would have failed not to perform the contract by not supplying the trucks and causing financial loss to the Corporation and in no case otherwise, and that once the contract had not been concluded, there was no question of not performing the contract or causing any financial loss to the respondent-Corporation, as the consequence of the petitioner-firm offering the highest bid. It was finally prayed to allow the writ petition and quash the impugned order with further direction to the respondent-Corporation to refund the earnest money deposit/security deposit to the petitioner along-with the interest at the banking rate for withholding the money of the petitioner illegally. 11. Mr. It was finally prayed to allow the writ petition and quash the impugned order with further direction to the respondent-Corporation to refund the earnest money deposit/security deposit to the petitioner along-with the interest at the banking rate for withholding the money of the petitioner illegally. 11. Mr. Haqani, learned senior counsel for the respondent-Corporation, on the other hand, vehemently argued that due to the conduct of the petitioner-firm by engaging the respondent into litigation by filing various writ petitions before this Court and civil suits before the Civil courts at Ganderbal had caused loss to the Corporation. He has further argued that the petitioner-firm, who was allotted contract in the years 2010-12 at the rate of 11.10% had by its action of giving highest bid for the years 2012-14 and later on unilaterally withdrawing the same, engaged the Corporation into unnecessary litigation before this Court and the Civil courts at Ganderbal, which had caused immense loss to the Corporation, as such, respondent-Corporation was within its right to forfeit the amount of CDRs deposited as earnest money/security. He has further argued that in view of the general conditions stipulated in the agreement for supply of trucks in Kashmir province for the years 2012-14, it had been provided under Clause-34 that all the questions, disputes and differences that may arise between the parties in respect of the agreement, shall be referred to Sole Arbitrator i.e. Managing Director, J&KSRTC, who may decide the same or nominate any other officer of the Corporation for this purpose and in case the contractor fails to raise any claim or dispute to the bills, his right to seek arbitration shall be forfeited and that the arbitration shall be regulated under the provisions of J&K Arbitration and Conciliation Act. Mr. Haqani’s further argument is that in presence of an arbitration clause, the petitioner-firm cannot maintain this petition and should have resorted to the arbitration being alternative and efficacious remedy available to the petitioner. He has finally argued that the instant petition being misconceived, is liable to be rejected and dismissed. 12. Mr. Haqani’s further argument is that in presence of an arbitration clause, the petitioner-firm cannot maintain this petition and should have resorted to the arbitration being alternative and efficacious remedy available to the petitioner. He has finally argued that the instant petition being misconceived, is liable to be rejected and dismissed. 12. For the purpose of appreciation of the rival submissions raised in the petition and rebutted by the other side, certain facts are required to be noted: a) The NIT was issued in the month of February 2012 asking for tenders to be filed for contract of supply of trucks for the period of two years w.e.f., 01.04.2012 to 31.03.2014. The tenders were proposed to be opened on 19.03.2012 at 1.00 PM by the Tender Opening Committee in presence of transporters who may like to be present at the Regional HQ of J&KSRTC at Jammu. b) The petitioner-firm admittedly filed tender with the highest bid with the offer of payment of commission @ 37.10%. c) Before finalizing the contract, the petitioner-firm filed OWP No. 282/2012 and vide order dated 14.03.2012, this Court allowed the respondent-Corporation to proceed with the tender process but restrained them from making any final allotment till next date before the Bench. d) On 04.06.2012 when OWP No. 282/2012 was listed before the Bench, learned counsel for the respondent-Corporation stated at the bar that he was under instructions to report that the impugned tender notice/subject matter of the writ petition, stands withdrawn, as such, the writ petition was also dismissed as withdrawn on the said statement of the learned counsel. e) On 10.07.2012, the respondent-Corporation forfeited the amount of Rs.40.00 lac and Rs.2.00 lac deposited in the shape of earnest money deposit in respect of CHT class-I and CHT class-II respectively pursuant to NIT invited on 24.02.2012. 13. Keeping in mind the above developments in the case, it is to be seen as to whether forfeiture of EMD/security deposit was legal for contract which was not culminated in view of the withdrawal of the tender notice. The forfeiture can only be possible in case it is legally permissible; firstly, for any non-compliance of the provisions of the contract or some other legal ground available or any such condition provided in the contract. The forfeiture can only be possible in case it is legally permissible; firstly, for any non-compliance of the provisions of the contract or some other legal ground available or any such condition provided in the contract. It is to be borne in mind that the contract had not taken place since the offer made by the petitioner-firm had not been accepted by the respondent-Corporation before it was withdrawn. The plea of the Corporation was that the tender process could not culminate in view of the interim order dated 14.03.2012 passed in OWP No. 282/2012 filed by the petitioner-firm. This Court, as noted above, had allowed the respondent-Corporation to proceed with the tender process just short of final allotment. 14. In view of the withdrawal of the tender offer by the petitioner-firm, respondent-Corporation had also withdrawn the tender notice, therefore, there was no contract between the parties, which was to be enforced, and in view of its default, the deposits could be forfeited. 15. The contention raised on behalf of the respondent-Corporation that the petitioner-firm had been allotted the contract for the period 2010-2012 @ 11.5% commission and that the petitioner-firm with an object to perpetuate the earlier contract had filed writ petition before this Court to stall the fresh process; that, offering the commission @ 37.10% by the petitioner-firm and then withdrawing the same before formal contract and filing subsequent petition in this Court and suit in the Civil court at Ganderbal, smacked of its conduct to defraud the respondent-Corporation, detrimental to its financial interest and to its own advantage. 16. The thrust of the argument of learned counsel for respondent-Corporation was regarding conduct of the petitioner-firm to cause loss to the respondent-Corporation and he has made attempts to justify forfeiture of the deposits during the tendering process. It has also been contended that the writ petition is not maintainable in view of the fact that there is an arbitration clause in the general conditions, stipulates for the agreement. Clause-34 of the conditions provide as under:- “That it is hereby agreed and resolved that all questions, disputes and differences that may arise between the parties in respect of this agreement shall be referred to sole Arbitrator i.e. Managing Director, JKSRTC, who may decide the same or nominate any other officer of the Corporation for this purpose. Clause-34 of the conditions provide as under:- “That it is hereby agreed and resolved that all questions, disputes and differences that may arise between the parties in respect of this agreement shall be referred to sole Arbitrator i.e. Managing Director, JKSRTC, who may decide the same or nominate any other officer of the Corporation for this purpose. In case contractor fails to raise any claim or dispute of the bills, his right to seek arbitration shall be forfeited. The arbitrations shall be regulated under the provisions of J&K Arbitration and Conciliation Act.” 17. The argument that such dispute, as has been raised in this writ petition, is a disputed question of facts and law, as such, writ petition is not maintainable and that the petitioner could invoke the jurisdiction of the civil court or could resort to arbitration, seems to be without any force of law. In view of the pleadings of the parties, there seems no disputed question of fact which needs to be decided. It is the admitted case that the forfeiture of the deposits has been made purely on legal opinion as claimed on the rulings of the Supreme Court of India. 18. Adverting to the contention with regard to the arbitration clause, it is made clear that since the offer of the petitioner-firm had not been accepted before its withdrawal, therefore, contract cannot be said to have been concluded so as to become an agreement to be legally enforceable. Otherwise also the Supreme Court in a case titled Uttar Pradesh Power Transmission Corporation Ltd. & Another Vs. CG Power and Industrial Solutions Limited & Another, reported as AIR 2021 SC 2411 , had held that ‘in any case existence of arbitration clause does not debar the court from entertaining a writ petition, as it is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy particularly; (i) where the writ petition seeks enforcement of fundamental right; (ii) where there is failure of principles of natural justice or; (iii) where the impugned orders or proceedings are wholly without jurisdiction or; (iv) the vires of any act is under challenge; (v) the monetary relief can also be granted in a writ petition.’ 19. In view of the fact that there was no culmination of the contract and in absence of any agreement there was no question of resorting to alternative remedy of arbitration and also that this Court has inherent powers to invoke the writ jurisdiction to decide the matter. 20. So far as the conduct of the petitioner-firm for having engaged respondent-Corporation into litigation before and after the tender notice was issued is concerned, it cannot be made the ground for forfeiture of deposits, made during the tendering process which had not culminated and was withdrawn by the petitioner-firm. It appears that the respondent-Corporation intended to punish the petitioner-firm for having resorted to legal recourse available to it and such a plea, in the considered opinion of this Court, is misplaced and cannot be entertained. 21. The impugned order is to be tested on the touchstone of the law laid down by the Supreme Court in the judgments relied upon by the respondent-Corporation. 22. In ‘Krishan Lal Vs. Food Corporation of India & Ors., reported as (2012) 4 SCC 786 ’, it was held that withdrawal of offer after entering into agreement tantamount to refusal to undertake contract, hence it was breach of terms of contract attracting penal provisions provided in agreement, and thus, the respondent was entitled to forfeit security amount and to recover of extra expenditure incurred in getting the work executed by alternative agency. 23. In the case on hand, neither the contract had concluded nor the agreement executed, therefore, there was no question of contravention of contract/agreement so as to invoke forfeiture clause. 24. In ‘State of Haryana & Ors. Vs. Malik Traders, reported as (2011) 13 SCC 200 ’, it has been held that ‘right to withdraw an offer before its acceptance cannot nullify the agreement to tender conditions to suffer any penalty for withdrawal of offer, and the very purpose of said condition in the offer/bid will be defeated if forfeiture is not permitted when offer is withdrawn in violation of the agreement.’ Since there was no agreement between the parties as there was no binding contract, the afore-stated law laid down is also of no help to the respondent –Corporation. 25. Again in the case titled ‘National Highway Authority of India Vs. 25. Again in the case titled ‘National Highway Authority of India Vs. M/S Ganga Enterprises & Anr.’, relied upon by the respondent –Corporation, there was a condition that the bid / security may be forfeited if bidder withdraws his bid during the period of bid validity. Since there was no bid validity or any such condition provided in NIT in the case before this Court, the forfeiture, as justified in the afore-stated case of National Highway Authority of India (supra), cannot be made applicable to this case. 26. There was neither any condition in NIT regarding forfeiture of the EMD/security deposit in case of withdrawal of the offer before conclusion of the contract and agreement, and there being no disputed question of fact and the arbitration clause, also not being applicable since the agreement had not taken place and even if may be applicable in view of the law laid down by Supreme Court in the case reported as AIR 2021 SC 2411 , this Court has power to entertain the writ petition, notwithstanding alternative and efficacious remedy. 27. Having regard to the factual and legal background of the case, it is held that security or earnest money deposit (EMD) in the form of CDR/FDR, pledged at the time of tender, can only be forfeited in case the tenderer backs out of the tender during the process of tendering, provided there is any such condition in the NIT; for not performing the contract after its finalization, as provided in the agreement on conclusion of the contract; or causing loss by not performing the contract as agreed. Other than these situations, do not warrant forfeiture under any circumstances. In the case on hand, there was no such situation. There was no condition in the tender notice that on filing of tender, the same cannot be withdrawn and such withdrawal would attract the penalty of forfeiture of EMD. The tender notice having been withdrawn by the respondent-Corporation, there was no question of contract to be concluded and agreement to be executed, so as to warrant forfeiture of EMD in case of either not performing the contract or violating / contravening any clause of the agreement to cause financial loss. 28. The tender notice having been withdrawn by the respondent-Corporation, there was no question of contract to be concluded and agreement to be executed, so as to warrant forfeiture of EMD in case of either not performing the contract or violating / contravening any clause of the agreement to cause financial loss. 28. The action of the respondent-Corporation to penalize the petitioner-firm for having backed out of the offer and feeling that financial loss had been caused by not sticking to the offer of paying commission @ 37.10% more than earlier rate of 11.5%, for the aforesaid discussion and reasons is held to be illegal. The respondent-Corporation was not within its right to impose such a penalty. 29. In view of the foregoing reasons, I find merit in this petition, and the same is, accordingly, allowed. The impugned Order No. JKSRTC/GML/CHT/496 dated 10.07.2012, is, hereby, quashed. The respondent-Corporation is directed to re-fund EMD/security deposit amounting to Rs.42.00 lac, deposited by the petitioner-firm, within a period of eight weeks from the date a copy of this order is served upon the respondent-Corporation. 30. Disposed of, as indicated above.