R K CONSTRUCTION COMPANY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE issue involved in this appeal is, whether the appellant is entitled to refund of the Earnest Money Deposit on withdrawal of the offer by the appellant.

(2.) THIS appeal is by the original plaintiff who had filed Regular Civil Suit NO. 52 of 1982 praying to pass decree of Rs.17892.00 with interest at the rate of 12% p.a. on the ground that the above said amount was given by way of earnest money deposit to comply with one of the conditions of tender and since the offer was withdrawn by the appellant within the validity period of 120 days, the appellant was entitled to refund of the said amount of earnest money deposit. Learned trial Judge allowed the suit and declared the plaintiff entitled to recover Rs.17892.00 with interest at the rate of 12% p.a. till its realization. The respondent No. 2 challenged the above judgment and decree passed by the learned trial Judge by filing Regular Civil Appeal No. 5 of 1990. The learned appellate Judge on interpretation of clause 18 of the tender, came to the conclusion that the appellant was bound by the said condition and, therefore, even if the appellant was entitled to withdraw the offer within the validity period, the appellant was not entitled to refund of the earnest money. The learned appellate Judge, thus, allowed the appeal and quashed and set aside the judgment and decree passed by the learned trial Judge and consequently, dismissed the suit of the appellant. It is this judgment and decree which is under challenge in this second appeal.

(3.) THIS appeal was earlier taken up for hearing but since the learned advocate for the respondent No.2 was not present, the Court had adjourned the matter. Today also, when this appeal is taken up for hearing, none has remained present for the respondent No.2. The Court has, therefore, proceeded to decide this appeal by hearing the learned advocate for the appellant only.