EASTERN UDYOG Vs. EAST CENTRAL RAILWAY HAJIPUR

JUDGEMENT

(1.) THIS writ application was earlier heard and dismissed by order dated 8.8.2006 holding that the writ application is not maintainable.

(2.) Against that order L.RA. No. 639 of 2006 was preferred and vide order dated 22.5.2007 the appeal was allowed and the writ application was restored for its hearing afresh. The writ application has been filed for quashing the order communicated vide letter no. ECR/ENG/W -7A/623/02/6008/Cont dated 21.9.2004 passed by the Deputy Chief Engineer/TSP, East Central Railway, Hajipur directing the petitioner to deposit Rs. 40,44,250/ - by 5th October on the ground that they have invoked risk and cost tender for un -supplied quantity of Combination Metal Liner which the respondents have purchased at higher rate from other supplier in view of non -supply of the same by the petitioner. Petitioner 'sfurther prayer is for restraining the respondents from taking any steps whatsoever for realization of so -called difference amount in purchase by risk -cum -cost tender.

(3.) THE respondent -Railway came out with tender notice for supply of 7,10,000 sets of combination Metal Liner. The petitioner submitted his tender on 14.2.2003. All terms and conditions were mentioned in the separate sheet and the column in the tender format referring terms and conditions were left blank. The format was signed. The petitioner in the separate sheet had offered for Railway Price Variation Clause and the validity period of the tender was 90 days as against 120 days mentioned in the tender notice. The respondents vide letter dated 7.5.2003 requested the petitioner to extend the validity period to 120 days taking note of the conditions mentioned in the separate sheet. The petitioner respond and vide letter dated 15.5.2003 extended the period for 120. days. The respondent - Railway faxed a letter of acceptance but the terms mentioned by the petitioner regarding the Railway Price variation clause was not accepted. In this letter of acceptance different terms was mentioned as against offer price of variation clause by the petitioner and a firm price was offered by the Railway. The petitioner on 19.6.2003 wrote to the respondents that the letter dated 17.6.2003 was not a letter of acceptance but counter offer which was not acceptable to the petitioner. The petitioner requested the respondents to accept the terms of the petitioner or otherwise petitioner will return the acceptance letter. The respondents in reply vide letter dated 2.7.2003 informed the petitioner that since he had left the column of price variation in the schedule format of tender document, therefore, firm price has been mentioned by the Railway and that is binding on the petitioner. He will have to supply on that terms failing which they will invoke risk cost clause and would make fresh tender. In case the price for the purchase was made on higher side, the different amount will be recovered from the petitioner. Petitioner, in response, sent a letter on 5.7.2003 mentioning that the price variation clause was mentioned in the separate sheet and, therefore, in absence of any valid contract any terms of contract could not be invoked against the petitioner. The respondent -Railway on 11.8.2003 issued two purchase orders for supply which was returned by the petitioner on 15.10.2003. The respondent sent a letter dated 6.4.2004 stating to have cancelled the purchase order and invited fresh tender. This was again replied by the petitioner on 16.4.2004 stating that since no valid contract has come into existence the terms of contract cannot be invoked against him. The petitioner challenged the action of the respondents of issuing fresh tender by filing C.W.J.C. No. 6565 of 2004 but subsequently withdrew on 30.7.2004. A legal notice was sent by the petitioner to the respondents. Thereafter, the impugned order dated 21.9.2004 was issued by the respondents demanding Rs. 40,44,250/ - as a result of invocation of risk purchase clause because they have to purchase Combination Metal Liner at higher price. The respondent claims the difference of price which they had to pay on account of non -supply of the articles by the petitioner.