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Digvijay Enterprises Nashik Thr Its Proprietor Sahebrao Damu Shewale v. the State of Maharashtra and Another

Bombay HC7 Jul 2021WP/5577/2021

Case brief

AI extract

What is this about?

The High Court set aside the resolution forfeiting the petitioner's Earnest Money Deposit of Rs.1,13,000/- because a valid contract was not concluded due to uncertainty in tender terms and repeated unilaterally changed draft agreements. The respondent was directed to refund the amount within six weeks.

What did the court decide?

Resolution forfeiting EMD set aside; Respondent directed to refund Rs.1,13,000/- preferably within six weeks.

Digvijay Enterprises Nashik Thr Its Proprietor… — Service and Employment | Bombay HC (2021)

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(1)

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960-wp-5577-2021

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.5577 OF 2021

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Digvijay Enterprises Nashik
Through its Proprietor
Shri. Sahebrao S/o Damu Shewale,
Age- 50 years, Occupation-Business,
Office/Resident of : Plot NO.A-18, Abhijeet Park,
D-1, Kamal Nagar, Kamatwade, Cidco, Nashik,
Tq. & Dist. Nashik...PETITIONER

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VERSUS

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1. The State of Maharashtra Through Principal Secretary, Urban Development Ministry, Mumbai – 32.

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2.Nagar Panchayat Muktainagar,
Tq. Muktainagr, Dist. Jalgaon,
Through it’s Chief Officer...RESPONDENTS

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Mr. Bhausaheb S. Deshmukh, Advocate for the
Petitioner.

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Mr. S. G. Karlekar, AGP for Respondent No.1.
Mr. M. M. Patil, Advocate for Respondent No.2.

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 CORAM : S. V. GANGAPURWALA &
 R. N. LADDHA, JJ.
 DATED : 07th JULY, 2021.

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ORAL JUDGMENT (Per: S. V. Gangapurwala):-

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1.Rule. Rule made returnable forthwith.

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With the consent of parties matter is taken up for
hearing at the admission stage.

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2.The petitioner is assailing issuance of
fresh tender notice, so also forfeiture of his
Earnest Money Deposit (EMD).

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3.The respondent no.2-Nagar Panchayat
floated tender for solid waste collection and

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(2) 960-wp-5577-2021

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management. The petitioner was the lowest bidder.
Subsequently, it appears that, repeated draft
agreements were prepared. The petitioner was not
in agreement with some terms. The respondent no.2
canceled the tender process. The General Body of
respondent no.2 took a decision to forfeit EMD of
the petitioner and to float fresh tender.

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4.While issuing notice on 08.04.2021, we had
observed that, we are not inclined to consider the
case of the petitioner so far as fresh tender
process is concerned and the petition was limited
to the grievance of the petitioner qua forfeiture
of EMD.

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5.Mr. Deshmukh, learned counsel for the
petitioner submits that respondent no.2 is
deviating from the terms of tender every now and
then. It was not possible for the petitioner to
follow the terms and conditions alien to the tender
documents. The learned counsel further submits
that, in the original tender the petitioner was not
supposed to bear the petrol and diesel charges. In
the draft agreement submitted, respondent no.2 came
out with a clause that the petitioner should bear
the petrol and diesel charges.

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6.It was also not agreed that the respondent
no.2 will have right to impose penalty upon the
petitioner. The respondent no.2 in the draft
agreement also introduced clause of penalty.

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(3) 960-wp-5577-2021

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7.The learned counsel submits that the
petitioner possesses his own closed vehicles for
the collection of solid wastes. The respondent
no.2 insisted that the vehicle of respondent no.2
only should be used for the said purpose.
According to the learned counsel as the terms and
conditions of the tender were not abided by
respondent no.2, the petitioner did not execute the
agreement in favour of respondent. The petitioner
cannot be penalized for the same.

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8.Mr. Patil, learned counsel for respondent
no.2 submits that the petitioner did not remain
present during the pre-bid meeting. The petitioner
in its letter dated 13.01.2021 agreed to get the
drainage cleaned and to transport the wastes
through tractor. Now, when the draft agreement was
forwarded to the petitioner, the petitioner took a
somersault. It is not that, respondent no.2 was
deviating from the terms of the tender. The
petitioner was time and again asking for
relaxation. The respondent no.2 took a sympathetic
approach towards the petitioner and even relaxed
the conditions of petrol and diesel charges to be
borne by the petitioner, still the petitioner did
not abide by the terms. Eventually, the General
Body took a decision to forfeit EMD and to float
the fresh tender.

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9.We have considered the submissions
canvassed by the learned counsel for the parties.

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(4)

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960-wp-5577-2021

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10.The tender provided the following works to
be performed by the tenderer:

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v- dz-	rif’ky	nj izfr ekg
`1`	eqDrkbZ uxj ‘kgjkrhy vksyk o lqdk dpjk ?kjks?kjh tkmu nSuanhu BjysY;k fuf’pr osGsr ?kaVkxkMh}kjs vkokt nsmu ladyhr dj.ks o okgrqd dj.ks ;ke/;s izHkkxkrhy laiq.kZ ? kjs] fcfYMax] def’kZ;y dkWEIysDl bR;knhpk lekos’k vlsy o jLrs vkf.k ukys lQkbZrqu fu?kkysyk xkG o dpjk] fBdfBdk.kh lkBysyk dpjk rlsp jLR;kps cktqyk iMysyk gydk dpjk] >kMkaP;k Qka	k jLR;kP;k dMsyk iMysys Msczht] esysyh tukojs o brj loZ izdkjpk vksyk o lqdk dpjk b- lekos’k vlsy rlsp vkjksx; fujh{kd o eq[;kf/kdkjh lqporhy vls dkes-
`2`	eqDrkbZ uxj ‘kgjkrhy m?kM;k xVkjh lkQ dj.ks o xVkjhckgsj ?kk.k dk<.ks] Hkqehxr xVkjh lkQ dj.ks o vko’;drk HkklY;kl xVkj m?kMhd#u ?kk.k dk<kus o can dj.ks] R;klkBh vko’;d vlysY;k loZ mik;;kstuk dj.ks-	`3,66,000`
`3`	eqDrkbZ uxj ‘kgjkrhy tarquk’kd Qokj.kh] /kqjG.kh] vcsfVax] eysjkWu vkWbZy fNMdko rlsp lkFk jksx izfrca/kkRed mik; ;kstuslkBh euq”;cG iqjoBk dj.ks-	`88740`
`4`	eqDrkbZ uxj ‘kgjkrhy e`r tukojs o csokjl izsr mpyus o foYgsokV yko.;klkBh euq”;cG iqjoBk dj.ks-	`29,580`

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11.The terms and conditions of the tender are
required to be clear and unambiguous.

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12.It appears that, after the tender of the
petitioner was accepted, there was further
deliberation between the petitioner and respondent
no.2 and from time to time, the terms and
conditions were sought to be imposed and/or
relaxed. Three draft agreements containing some
changes in the terms and conditions were drafted.

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13.It appears that, parties were never ad
idem about the terms and covenants of the tender.

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(5) 960-wp-5577-2021

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The parties did not arrive at conclusion of the
exact terms and conditions of the tender. In the
first draft agreement, it was the condition put
forth by respondent no.2 that the petitioner would
bear the petrol and diesel charges for
transportation. Upon representation, the said
condition was relaxed in the next draft agreement.
In the third draft agreement, the condition of the
penalty was also imposed. There were changes made
in the draft agreement from time to time.

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14.It appears that, terms and conditions of
the tender were not certain. If the terms and
conditions of the tender are not certain or the
meaning of which cannot be made certain, is to that
extent void. Reference can be had to Section 29 of
the Contract Act. If the parties are not ad idem,
it cannot be said that consent is a free consent,
as required under Section 13 of the Indian Contract
Act.

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15.It appears that, consistently and
repeatedly draft agreements were prepared by
respondent no.2 and presented to the petitioner.
There were some modifications of the terms and
conditions in each and every draft agreements.

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16.In light of the above, it cannot be said
that the petitioner is entirely at fault in not
proceeding ahead in signing the draft agreement.
The work order was not issued to the petitioner.

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(6) 960-wp-5577-2021

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17.As the terms and conditions were not
finalized, it cannot be said that the concluded
contract came into existence.

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18.Considering the overall scenario of the
matter, it would not be appropriate on the part of
respondent no.2 to forfeit the EMD of Rs.1,13,000/-
deposited by the petitioner.

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19.In light of that, the impugned Resolution
of the General Body to the extent of forfeiting the
EMD is set aside.

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20.The respondent no.2 shall refund EMD of
Rs.1,13,000/- to the petitioner preferably within a
period of six (06) weeks from today.

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21.Rule accordingly made absolute in above
terms. No costs.

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 (R. N. LADDHA) (S. V. GANGAPURWALA)
 JUDGE JUDGE

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Devendra/July-2021

Digvijay Enterprises Nashik Thr Its Proprietor Sahebrao Damu Shewale v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Digvijay Enterprises Nashik Thr Its Proprietor Sahebrao Damu Shewale v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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