8.It is not in dispute that the respondent as the plaintiff was declared as successful bidder for removal of certain metal scraps available at the hands of the defendants and for such purpose, they have deposited Rs.71,100/- as earnest money deposit. It is also not in dispute that the employees of the plaintiff, while removing the scrap, have loaded some other material which was not the subject matter of the tender. However, it is stated by the plaintiff that such mistake was committed by the employees without their notice and hence immediately, they sent a communication to the defendants through Ex.B6 indicating that such mistake was not with their knowledge and only due to the inadvertent act of their employees. In any event, the fact remains that for such conduct of the plaintiff, the defendants did not permit them to remove even the materials which are subject matter of the tender. Therefore, it is an admitted fact that the plaintiff has not removed any materials from the premises of the defendants, even though they paid a sum of Rs.71,100/- as earnest money deposit. Therefore, the question is whether the defendants can retain the earnest money deposit. Needless to say that the defendants have to prove by way of filing documents before the court justifying their action in retaining the earnest money deposit. In this case, the tender conditions were not marked before the court below. Even when an opportunity is given to the defendants before this court to file such document, they have not come forward to file the same. Therefore, nothing is there on record to show that the defendants are entitled to retain the earnest money deposit. When the defendants failed to prove such entitlement, naturally the plaintiff who deposited the money and not removed any material from the premises of the defendants, is entitled to get back the earnest money deposit, which both the courts below have
