UNION OF INDIA Vs. RMI METALS PVT LTD

JUDGEMENT

(1.) INDERMEET KAUR, J. (Oral) There is no substantial opposition to these applications. In view thereof the delay of 25 days in filing the apapeal as well as the delay of 644 days in re -filing the appeal is condoned. Applications are disposed of. 1. This appeal has been directed against the impugned judgment and decree dated 7.4.2008 whereby the suit filed by the plaintiff M/s RMI Metals Pvt. Ltd. seeking a refund of his earnest money which had been deposited with the defendant i.e. the Ordnance Factory, Ministry of Defence, Muradnagar, District Ghaziabad had been decreed in his favour.

(2.) PLAINTIFF vide his letter dated 30.12.2002 had submitted his bid against the tender which had been floated by the defendant. This was for the supply of 4000 kg of FM Low Carbon Lumbs (the Bid Product). The plaintiff while submitting his offer had made an error in the price which he had quoted; instead of Rs.369/ - per kg. inadvertently due to typographical mistake he had quoted the price of Rs.269 per kg. On 04.1.2003 vide fax message plaintiff informed this error to the defendant. On 7.1.2003 defendants confirmed two facts (i) plaintiff's offer was under consideration; (ii) payment condition stipulated by the plaintiff in the bid was unacceptable to the defendant. Further the plaintiff was directed either to accept the defendant's normal payment conditions of 100% payment to be made within 30 to 45 days as also to submit the company profile. The plaintiff did not accede to this advice. Earnest money which had been deposited by the plaintiff along with the tender document stood forfeited by the defendant by relying upon clause 9 of the tender document. Present suit was filed praying for a refund of the said amount.

(3.) TRIAL judge had framed the following issues: they read as follows: "1. Whether the plaint discloses no cause of action against Defendant? OPD 2. Whether suit is not maintainable for non service of statutory notice U/S 80 CPC? OPD 3. Whether plaintiff has concealed material facts before the court and has come with uncleaned hands? OPD 4. Whether plaintiff is entitled to the relief of refund as prayed for? OPP