V K PATEL Vs. CHAIRMAN

JUDGEMENT

(1.) WE have heard Mr.Nirav Thakkar, learned counsel appearing for the petitioner and Mr.Dhaval D.Vyas, learned counsel appearing for the respondents.

(2.) THIS petition has been filed by the petitioner claiming for withdrawal from the tender and refund of earnest money deposited by them. The case of the petitioner is that the respondents had issued a tender notice dated 7.11.2009 inviting tenders. The last date for receipt and opening of the tender was 4.12.2009. On 4.12.2009, cover-I i.e. earnest money deposit and cover-II technical bid were to be opened and if the tender was found eligible in the technical bid, then the price bid was required to be opened on the subsequent date which is clear from the last paragraph of the tender notice. General instructions issued alongwith the tender in 4.4.4 mentions that the tenderer was required to submit earnest money deposit in the form of FDR drawn on a nationalised/scheduled bank alongwith tender work and it should be valid for a period of six months from the date of issue. In special instruction no.4.21, it was clearly provided that the rates quoted by the tenderer were held good and remain firm for 180 days from the date of opening of the price bid of the tender. THIS means that the price bid was to be valid for a period of 180 days from the date of opening of the price bid.

(3.) MR. Dhaval Vyas, learned Advocate for the respondent, has relied on following various judgments of the Apex Court in support of his submission: (1) National Highway Authority of India v. M/s Ganga Enterprises and Anr., AIR 2003 SC 3823; (2) State of Haryana & Ors. v. Malik Traders, 2011 0 AIR(SCW)5094; (3) State of U.P. and Ors. v. Bridge & Roof Company (India) Limited, (1996) 6 SCC 22; (4) State of Maharashtra &Ors., v. A.P. Paper Mills Limited, as reported in (2006) 4 SCC 209; (5) Pimpri Chinchwad Municipal Corporation & Ors., v. Gayatri Construction Co. & Anr., (2008) 8 SCC 172; (6) State of Gujarat vs. Dahyabhai Zaverbhai, AIR 1997 SC, 2701. We have gone through the judgments. The first judgment in the case of National Highway Authority (supra), the Apex Court has held that the contractor, who offered his bid which had validity period of 120 days, cannot be permitted to withdraw his offer before the expiry of the stipulated time i.e. 120 days and the authority would be entitled to forfeit the bid amount. The facts of the present case, as stated here-in-above, are different than the facts in the said case. In the present case, the petitioner had waited for a long time and requested the respondent for refund of his Earnest Money Deposit after the expiry of validity of tender time. Similar are the facts in the case of State of Haryana & Ors (supra). In the said case, the Apex Court has held that the bidder cannot be permitted to withdraw his offer before the validity period. In the present case, the respondents have not acted promptly and have opened the price bid after long period of nine months, which would certainly prejudice the bidder who has quoted the price of work keeping in mind the price of the material available in the market at the relevant time. In the case of State of Maharashtra & Ors (supra), similar ratio is laid down by the Apex Court about the time, permitting the bidder to withdraw his offer. In the case of State of U.P. & Ors (supra), the Apex Court has also observed that the High Courts would be slow in interfering with the interpretation of the terms of the contract under Article 226 of the Constitution of India. It is well settled position that if it is the question of interpretation of the terms of the contract, then other alternative remedy under civil laws are available, but in the present case, there is no question of interpreting any clause of contract, since the respondents themselves remained idle for nine months and, therefore, they cannot ask a party to go in civil litigation. In the case of Pimpri Chinchwad Municipal Corporation & Ors (supra), the Apex Court has taken similar view with regard to availability of alternative remedy. The ratio laid down by the Apex Court in the case of State of Gujarat (supra), does not apply in the present case since the facts are totally different from the facts of the present case.