BISHAN BROTHERS Vs. STATE OF J&K

JUDGEMENT

(1.) THIS Civil first appeal is against the judgment and decree of a Single Judge of this Court (Honâ„¢ble Mr J.ustice Dr. A.S. Anand) dated 12 -1 -1979, dismissing the suit of the appellant for the recovery of Rs. 1,37,600/ -.

(2.) BRIEFLY stating the facts of the case are that the plaintiff is a partnership firm. On 19 -2 -1964 the Conservator of Forests Chenab Circle, Jammu, invited tenders for Dachan Forests lease comprising compartments Nos. 1 -A, 4, 5 and 6 for a period of nine years. In response to the tender notice the plaintiff firm submitted a tender for a sum of Rs. 1,77,77,777/ - on 19 -2 -1964. In accordance with the requirements of the tender notice, the plaintiff deposited a sum of Rs. 80,000/ - as earnest money. On opening the tenders, the tender of the plaintiff was found to be the highest. When the tenders were opened the plaintiff on discovering that the difference between their tender and the tender of the second highest being huge, made fresh calculations and checking and found that the firm had not subtracted the working cost of Rs. 66,00,000/ - from the sale proceeds of the timber that was to be extracted and as a result of this a mistake had crept in the tender. Before the tender of the plaintiff firm was accepted modification of the amount tendered was sought by means of representation to the concerned Minister dated 11 -3 -1964 Ex. PWA. It was requested that the tender be treated as valid only for Rs. 1,11,77,777/ -. Copies of the representation were sent to the Chief Conservator of Forests, and the Conservator of Forests Chenab Circle, Jammu. Both these officers supported the case of the plaintiff and expressed the opinion that the figure of Rs. 1,77,77,777/ - appeared to be erratic and that the tender be accepted for the revised amount mentioned above. But despite this the Government on 18 -4 -1964 conveyed the acceptance of the tender as originally submitted by the plaintiff for Rs. 1,11,77,777/ -. According to the terms of the tender notice, the plaintiff firm was required to execute a formal contract on the acceptance being conveyed to it. However, in view of the fact that the Government had not acceded to the request of the plaintiff firm in respect of the revised amount of Rs. 1,11,77,777/ - the plaintiff arm did not execute the contract. The lease was thereafter re -tendered in Feb. 1965 and the same was granted in favour of another firm for a sum of Rs. 1,25,99,999/ -. After this the plaintiff sought the refund of the earnest money of Rs. 80,000/ - deposited by them. A communication was received on 18 -6 -1966 from the Chief Conservator of Forests that the earnest money deposited had been forfeited. The plaintiff firm represented the matter to the authorities but to no avail. A notice under Section 80 C.P.C. was thereupon served on the defendant but to no effect.

(3.) THE suit was resisted on behalf of the defendants with the plea that there was no mistake whether unilateral or bilateral that had crept in the tender submitted by the plaintiff. The original offer made by the plaintiff was accepted and sanction was accorded to the grant of the lease in their favour. A valid contract had come into existence between the parties when the Government sanctioned the lease in their favour. Since the plaintiff firm had declined to work out the lease the same had to be re -tendered in favour of another firm. The loss suffered by the Government in re -tendering the lease was to the extent of Rs. 51,77,778/ -. The plaintiff was told in unmistakable terms that his earnest money of Rs. 80,000/ - stood forfeited in terms of the stipulation in the contract. The receipt of the notice under Section 80 CPC was admitted. The defendant disputed the right of the plaintiff to claim refund. It was pleaded that the suit of the plaintiff was barred by limitation. On the other hand, the plaintiff firm was bound to reimburse the defendant to the extent of rupees eleven lacs and odd for the loss suffered by the Government in re -tendering the lease.