In a writ petition challenging the forfeiture of an equity money deposit, the High Court held that since the petitioner did not accept the corrigendum amending tender conditions, no valid contract existed, and the deposit must be refunded.
Direction to the respondents to return the EMD received from the petitioner within a period of four weeks.
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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936
WP(C).No. 23260 of 2014 (F)
PETITIONER(S) :
M/S.SUBHAM FREIGHT TERMINAL, D 5 D, CHACKOLAS HABITAT, THEVARA, COCHIN-682 013, REPRESENTED BY ITS MANAGING PARTNER, GEORGE JOSEPH.
BY SRI.K.L.VARGHESE (SENIOR ADVOCATE) ADVS.SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE SRI.RANJITH VARGHESE
RESPONDENT(S):
1. THE CHAIRMAN,
2. THE BOARD OF TRUSTEES,
3. THE CHIEF ENGINEER,
BY ADVS. SRI.V.ABRAHAM MARKOS
SRI.BINU MATHEW
SRI.ABRAHAM JOSEPH MARKOS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 23260 of 2014 (F)
APPENDIX
PETITIONER(S)' EXHIBITS
WP(C).No. 23260 of 2014 (F)
ADDITIONAL EXHIBIT P-22: TRUE COPY OF THE RETENDER NOTIFICATION DATED 20.09.2014.
RESPONDENT(S)' EXHIBITS
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.MUHAMED MUSTAQUE, J.
= = = = = = = = = = = = = WP(C).No.23260 of 2014-F.
= = = = = = = = = = = = =
Dated this the 12th day of November, 2014.
J U D G M E N T
The petitioner responded to a tender floated by the Cochin Port Trust for operating a full-fledge truck parking terminal at Vallarpadam and submitted a tender. As per the general conditions of the tender the petitioner has to pay one time premium and one year lease rent as security deposit. The EMD also has to be furnished to the tune of Rs.35 lakhs. Accordingly, petitioner furnished the EMD of Rs.35 lakhs. There were only two tenderers for this bid. The petitioner was the highest for quoting one time premium of Rs.1,59,10,000/-. This quote was accepted by Ext.P4 allotment. However, by Ext.P4 allotment the petitioner was called upon to pay one time premium of Rs.1,59,10,000/- as well as two years lease rent at Rs.1,55,55,803/- towards security deposit. The petitioner on receipt of Ext.P4, filed Ext.P6 objection stating that as per
WP(C).No.23260/2014-F.
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the general conditions of tender successful bidder should pay only one year lease rent as security deposit and stipulation in instructions to tenderers to pay two years lease rent is repugnant to the general terms of conditions and also stated that this stipulation is redundant as the same is fixed after the acceptance of offer. This was responded by Ext.P7 stating that instructions to the tender conditions is amended by order dated 11.2.2014. It was pointed out that the tender was floated on 1.2.2014 fixing the due date as on 20.2.2014. It is further pointed out that the discrepancy pointed out by the petitioner was modified within the time allowed in the tender document. Ext.P1 tender document enables the respondent to amend the tender document not later than ten days prior to the dead line for submission of tender. The Corrigendum is produced as Ext.P7(a). It shows that this was made on 11.2.2014. It is affirmed by the respondent that this was published in the website and was also sent to the petitioner by E-mail. The petitioner disputes receipt of any such E-mail and also
WP(C).No.23260/2014-F.
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submits that they have no occasion to see the website. I am of the view, these are all the questions do not arise here and it would arise only when the petitioner compels the respondent to perform their part of the contract on accepting one year security deposit. The limited relief sought in this writ petition is for refund of the EMD. Admittedly, the corrigendum was issued only on 11.2.2014. The petitioner affirms that they have acted based on the general conditions and made their offer based on the general conditions. The petitioners also submits that they have not submitted tender document including corrigendum and they have only given the tender document without corrigendum. Ext.P7(a) corrigendum produced clearly indicates that corrigendum has to be submitted along with the tender document. Therefore it is clear that the petitioner never accepted the corrigendum as part of their offer. The right to forfeit EMD arises only when there is a contractual obligation. The contractual obligation will arise, when there is a consensus between the parties
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regarding the various terms and conditions of the agreement. The respondents have no case that the petitioner has accepted the corrigendum and the same was submitted along with the tender document. In view of the matter it is very clear that the petitioner was under the impression that only terms and conditions as mentioned in the general condition would alone bind them and the petitioner never understood and acted upon the corrigendum. In view of the matter, in the absence of any valid contract between the petitioner and the respondents, the respondents have no right to retain any EMD. Accordingly, there shall be a direction to the respondents to return the EMD received from the petitioner within a period of four weeks.
Writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, (JUDGE)
Kvs/-
// true copy //
2 issues framed by the court
Whether the security deposit can be forfeited when the petitioner did not accept the amended tender terms in the corrigendum.
Whether a valid contractual obligation exists between the parties for the retention of the equity money deposit.
M/S.SUBHAM FREIGHT TERMINAL
THE CHAIRMAN, COCHIN PORT TRUST
A.MUHAMED MUSTAQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
