The Court dismissed a writ petition by a successful bidder who sought return of EMD and quashing of black listing order. Holding that the respondent temple trust had reserved rights to revise schedules, the Court found no breach and affirmed the impugned order.
The Writ Petition is dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.3101 of 2021
ORDER:
The petitioner company is in the business of manufacture and sale of refined sunflower oil and other edible oils. It had participated in a tender, issued by the 3rd respondent, dated 29.01.2020, for procurement of 14,000 tins of refined sunflower oil with Agmark. The petitioner emerged as successful bidder in the e-Tender and e-Reverse auction held on 12.02.2020 and 13.02.2020. In accordance with the tender, the petitioner had also deposited Rs.4,92,000/- as Earnest Money Deposit (EMD).
2
condition No.14 in the tender notice itself stated that the tender would be valid only for a period of three months. The respondents did not give any clarifications. However, the 4th respondent, by a letter dated 01.07.2020, had requested the petitioner company to stop supply of sunflower oil until further intimation. On receipt of this communication, the petitioner, by an email dated 04.08.2020, sent to the 3rd respondent, requested for supply of schedule so as to execute the agreement. Later, the 4th respondent, by a letter dated 06.08.2020, sent a supply schedule to the petitioner requiring delivery for the period between 25.12.2020 to 25.05.2021 which was contrary to the terms mentioned in the tender notice and which stipulated that the supply would have to be made within three months. Subsequently, the 3rd respondent, by a letter dated 09.09.2020, requested the petitioner company to supply oil as per the terms of the tender notice. As the schedule given for the period from 25.12.2020 to 25.05.2021 was contrary to the terms of the tender notice, the petitioner, by letter dated 13.10.2020, sought clarification regarding the status of the tender. The petitioner also took the stand that since it would have to be understood that the tender notice was called off due to Covid-19 Pandemic, EMD paid by the petitioner should be returned. The petitioner also stated that the total EMD deposited by the petitioner was Rs.6,80,000/-. Apart from these contentions, the petitioner also set-forth its difficulty to hope that financial distress due to the Covid-19 pandemic and requested to return of the EMD.
3
4
notice, and as such, is not permissible and the petitioner cannot compelled to supply in December, 2020; the provisions of Section 56 of the Contract Act would clearly apply and as such, no orders could be passed against the petitioner and the principle of natural justice were also violated for two reasons,firstly, show cause notices do not refer to any of the mails or letters sent by the petitioner company, and secondly, show cause notices were issued by the 3rd respondent while the impugned order was passed by the 2nd respondent which is a clear violation of the principles of natural justice.
5
the petitioner was not coming forward, a notice dated 09.09.2020 was issued to the petitioner to execute the agreement immediately. Despite the petitioner being called upon to execute the agreement by letters dated 05.03.2020 and 09.09.2020, the petitioner did not come forward to execute the contract; the petitioner did not respond even to the subsequent notice dated 09.10.2020, calling upon the petitioner to supply 1000 tins of sunflower oil on or before 16.10.2020; though the petitioner had initially deposited Rs.4,92,000/- as EMD, the said EMD was reduced to Rs.1,78,000/- taking into the fact that only 4,900 tins were being sourced from the petitioner, the amount of Rs.4,92,000/- was refunded to the petitioner on 29.10.2020 itself after the petitioner furnished proportionate EMD, for an amount of Rs.1,78,000/-; the respondents also submits that in view of the default of the petitioner, show cause notices were issued to the petitioner to show cause why the order placed on the petitioner should not be cancelled with consequential steps for forfeiture of EMD, as well as black listing of the petitioner. Despite receipt of notices, the petitioner did not bother to reply to any of the show cause notices. Thereupon, the 2nd respondent after looking at the material on record had passed the necessary orders.
6
Court. He further submits that there is a provision of appeal under Section 120 of the Endowment Act to the board of the Devasthanam against the impugned order. He submits that the petitioner has an effective alternative remedy, and as such, the present petition is not maintainable.
Consideration of the Court:
as follows:
as follows:
“In the event of delay or default in supply and the supplies not adhering to the schedule, the T.T.D. reserves the right to procure the requirement from the other sources and recover the excess cost, if any incurred by T.T.D., from the approved tenderer. However, if the rate is cheaper, the benefit will not accrue to the respective approved tenderer. The T.T.D. reserves the right to either reject the entire lot or impose cut or forfeit the E.M.D. and Security Deposit at its discretion if the quality is not in accordance with the specifications or of inferior quality
7
goods as confirmed by Lab reports. In this regard the decision of Executive Officer/Addl. Executive Officer, Tirumala/General Manager(P)/Dy.E.O (W.H), TTD shall be final and binding on the supplier. The quantum of cuts imposed shall be final binding on the supplier. The cuts will be imposed both on the laboratory analysis and on the physical verification of the supply received.
as follows:
“The prices quoted shall be firm and fixed from the date of submission of tender to the date of completion of the contract of supply in all respects. ANY RERQUSTS FOR REVISION IN THE RATE OR RATES BY THE SUPPLIER SHALL NOT BE ENTERTAINED DURING THE RATE CONTRACT PERIOD.
13. Clause 33 of the general terms and conditions reads
as follows:
“The successful bidder has to enter into an agreement agreeing to all the conditions of the contract with the T.T.Devasthanams on Non-judicial stamp paper of value of Rs.100/- within 15 days from the date of receipt of the intimation to him that his TENDER has been accepted. The format of agreement shall be supplied to the approved supplier along with the communication of accepting the rates quoted”.
as follows:
“The TTD reserves the right to add/delete/change/modify any or all the conditions mentioned in the tender schedule and the said addition/deletion/changes/modifications can be incorporated in the agreement to be entered into with the supplier irrespective of tender conditions mentioned in the
8
notice inviting tender or in the tender schedule or the same can be incorporated in a form of codicil as the case may be and the same will be binding on the supplier without any recourse”.
as follows:
“No supplier shall be allowed at any time on any ground what so ever to claim revision or modification in the rates quoted by him. Conditions such as Subject to Availability Supplies will be made as and when supplies are received etc, will not be considered under any circumstances.”
9
10
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
09.07.2021 RJS
11
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.3101 of 2021
09.07.2021
RJS
2 issues framed by the court
Whether the petitioner could claim breach of contract or additional consideration when respondents reserved rights to revise delivery schedule and extend tender period.
Whether the petition challenging the black listing and forfeiture order under Section 120 of the Tamil Nadu Hindu Religious and Charitable Endowments Act is maintainable.
Petitioner Company
TTD
R. Raghunandan Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
