HAMEED ENTERPRISES Vs. REGISTRAR, INDIAN INSTITUTE OF TECHNOLOGY

JUDGEMENT

(1.) This writ petition is filed by the petitioner challenging the order of the first respondent dated 25.10.2012 forfeiting the pre-bid EMD of Rs.5 lakhs paid by the petitioner and for a direction to return the said amount with 12% interest.

(2.) The brief facts necessary for disposal of this writ petitoner are as follows:

(3.) The first respondent has filed counter affidavit contending that the impugned order being a reply notice issued to the counsel notice to the petitioner stating about the forfeiture of the EMD, the same cannot be challenged. Petitioner's offer being the highest, the same was accepted by the respondents, thereby the contract was concluded. Therefore petitioner is not entitled to resile from the contract. In terms of the tender conditions, EMD can be forfeited, if the highest bidder fails to pay the balance amount within seven days. As per Clause 2.0 of the agreement the first respondent is the Principal and the second respondent is the Selling Agent for a period of three years with effect from 12.10.2010 and the petitioner can trace its rights only as per the agreement. E-Auction was conducted on 13.9.2011 and the second respondent informed through the sale information letter on the same day that the pre-bid amount will be forfeited as per the terms and conditions, if the petitioner does not make the balance payment within seven days. As per the auction terms and conditions, if any bid is more than five times of the next lower bid, a confirmation will be sought for by the programme itself. Petitioner's bid was more than five times and the petitioner also reconfirmed the same. It is not the genuine error as alleged by the petitioner. It is further stated that the second auction was conducted and a sum of Rs.45,52,000/- alone was quoted, thereby a loss has occasioned, apart from meeting incidental expenses and inconvenience due to re-auction, which has to be compensated by the petitioner. The forfeiture of the EMD is by way of compensation for the breach, which arose under Clause 7(e) of the terms and conditions of the auction. The bid amount quoted by the petitioner was not for a sum of Rs.12,24,202/- but for a sum of Rs.1,22,42,002/- as the immediate next bid value stood at Rs.22,55,848/-.