KALYANI SPINNING MILLS LTD Vs. SUDHA SASHIKANT SHROFF

JUDGEMENT

(1.) This appeal filed by Kalyani Spinning Mills Ltd., is Managing Director and its Sales Officer impugns a judgment and order dated 6/08/1993 passed by P. K. Majumdar, J. in Matter No. 2922 of 1992.

(2.) The learned single Judge by virtue of the said order directed Kalyani Spinning Mills Ltd. to rescind and not to give any effect to advertisements published in "The Statesman" dated 4th Sept., 1992 in terms of prayer (a) of the petition and gave a further direction upon the said respondent, Kalyani Spinning Mills Ltd. forthwith to deliver the goods or machinery in favour of the writ petitioner (Respondent No. 1 in the present appeals). Smt. Sudha Sashikant Shroff carrying on business under the name and style of Sudha Textile Traders in terms of prayer (b) of the writ application in respect of 64 items which were the subject matter of a contract in between the writ petitioner on the one hand and Kalyani Spinning Mills Ltd. on the other on payment of the entire balance price of the said machines, subject to adjustment of the deposit which was lying with Kalyani Spinning Mills Ltd. in the form of an earnest money advanced by the writ petitioner.

(3.) It would be necessary for us to trace out the background of the entire case. On 22/05/1989 an advertisement was published in the Indian Express at the behest of Kalyani Spinning Mills Ltd. for sale of obsolete textile machineries on "as is where is basis" inviting tenders for the sixtyfour items of machinery. It was given out that machineries could be inspected at units at Kalyani Spinning Mills Ltd. at Kalyani and Ashoknagar during any working day. Earnest money at the rate of 5% of the quoted tender value must accompany the tender form by Account Payee / Demand Draft / Pay Order adjustable, refundable drawn in favour of the Kalyani Spinning Mills Ltd. payable at Calcutta. The last date of submission of tender was within one month of the publication of tender notice. The authority reserved the right to reject any or all tenders in part or full without assigning any reason thereof. About the terms and conditions for sale of obsolete textile machineries, it was given out that earnest money at the rate of 5% of quoted value will be accepted only in the form of Account Payee / Demand Draft or Pay Order on any Bank in Calcutta and drawn in favour of the Kalyani Spinning Mills Ltd. Payment of earnest money in cash will not be accepted. Tender papers without requisite earnest money will not be accepted. For the successful tenderers, the earnest money so deposited will be treated as security deposit bearing no interest and amount will be refunded or adjusted after the transaction has been completed successfully and satisfactorily. For unsuccessful tenderers, the earnest money will be refunded within a month after opening of the tender and will not bear any interest. Successful tenderers will be required to make full payments by Account Payee / Demand Draft or Bany Pay Order in favour of the company payable at Calcutta within 15 days from the date of acceptance of tender as per the proforma invoice issued by the company. If full payment along with taxes if any, applicable, is not received within the aforesaid 15 days, the earnest money will be forfeited.