PRATAP CHANDRA PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD Mr. P.C. Nayak, learned counsel for the petitioner and Mr. B.K. Nayak, learned Addl. Government Advocate.

(2.) THE petitioner, who is the tenderer is before this Court seeking issuance of a writ of mandamus directing the opposite parties 2 and 3 to release the EMD amount of the petitioner amounting to Rs.2,93,000/ -of Oriental Bank of Commerce vide term Deposit Certificate No.0731258 under Annexure -3, which has been duly pledged in favour of the opposite party no.3 at the time of submission of tender, as per provisions of O.P.W.D. Code. Since this fact is undisputed, it needs to be referred to various facts and pleadings of the parties.

(3.) THE Apex Court has placed reliance on a judgment of the Supreme Court reported in 2007(1) CTLJ 84 (SC) (Yogesh Mehta v. Custodian appointed under the Special Court and others), wherein the Apex Court referred to two earlier decisions of the Supreme Court in Chairman of the Bankura Municipality, Bankura v. Lalji Raja and sons, AIR 1953 SC 248. At page 250, the Supreme Court explained the definition of the word 'forfeiture and also forfeiture of the "earnest money" with reference to the provisions of the Indian Contract Act, 1872. It is held that the forfeiture is permissible only when a concluded contract has come into being and not prior thereto. The apex Court has referred to the case of Maula Bux v. Union of India, AIR 1970 SC 1955 and Saurabh Prakash v. DLF Universal Ltd., 2006 (12) SCALE 531. Further the Supreme Court has placed reliance upon the judgment of the Madhya Pradesh High Court in Rajendra Kumar Verma v. State of Madhya Pradesh and others, AIR 1972 Madhya Pradesh 131, wherein the Division Bench of Madhya Pradesh High Court while dealing with Section 5 of the Contract Act, 1872 held that a person is entitled to withdraw his proposals before its acceptance is intimated to him and further placed reliance in paragraph 4 of the judgment by referring to Article 299 (1) held that it cannot be a valid contract, unless there is a valid contract executed as envisaged by Article 299(1), where the Government is a party, there could be no enforceable contract at all. However, it is found that the apex Court in K.P.Choudhury v. State of M.P., AIR 1967 SC 203 and further he has placed reliance upon the decision of the Karnatak High Court in Bandi Ramappa v. State of Karnataka and others, 2009 (2) CTLJ 281 (Karnataka). In the said case, Section 5 of the Contract Act, 1872 was examined and referred to the judgments of the Supreme Court and other decisions of the Karnataka High Court and Madhya Pradesh High Court held that forfeiture of earnest money deposit is held to be bad in law. Mr. Nayak, learned counsel for the petitioner further submits that the petitioner attended the office of the opposite party no.3 in late, but due to late attendance, the documents are not allowed to be verified as per Annexure -5.