STATE OF J&K AND ORS. Vs. PURAN CHAND

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment dated 10.09.2001 passed by this Court in OWP No. 232/1999 titled Puran Chand v. State of J & K and Ors., by virtue whereof writ petition filed by the respondent -Puran Chand was allowed. Puran Chand -Respondent herein submitted his tenders in response to the tender notice floated by appellant No. 4 -Executive Engineer vide NIT No. 44 of 1/1998 and NIT No. 45 of 1/1998 both dated 15.01.1998 for construction of Sudha Nalla Diversion -cum -Spill way channel from R.D. 15 - 158 of S.H.P. State -III and construction of Sudha Nalla Division -cum -Spill way channel from R.D. 158 -630 of S.H.P. Stage -III respectively. He claimed to have quoted Rs. 1775/ - and Rs. 1800/ - respectively for 1 M. Ton for both the works respectively and subsequently, made applications before respondent No. 2 and before the Contract Committee on 03.03.1998 to treat Rs. 1775/ - as Rs. 17750/ - and Rs. 1800/ - as Rs. 18,000/ - respectively against the quoted rates on the ground that there was a clerical mistake in recording the figures. However, allotment orders were issued for the above referred both works in favour of respondent without allowing the necessary correction. Respondent had deposited a sum of Rs. 50,000/ - towards each contract as security for carrying out the terms and conditions of the contract in the event of tenders being accepted. The tenders were opened on 03.03.1998 and immediately, thereafter the respondent submitted that he had committed a clerical error while mentioning the rates at Rs. 1775/ - and Rs. 1800/ - per M. Ton which in fact were meant to be Rs. 17750/ - and Rs. 18000/ - Per M. Ton. Respondent claimed to have filed an application on the same date to add zero to both the rates quoted, so as to represent the figures as Rs. 17750/ - and Rs. 18000/ - respectively. It was claimed on behalf of the respondent that tenders were accepted without taking into consideration his letters for correcting the figures in regard to the rates quoted. The appellants resorted to enforce the clause of forfeiting of security for failure on the part of respondent to comply with the contractual obligation. Respondent claimed before the writ Court that he was not at fault and that there was a typing mistake in the offers which were sought to be rectified by suggesting the modification by adding zero to the figures quoted as Rs. 1775/ - and Rs. 1800/ - per M. Ton and that such modification was suggested before acceptance of the tender. The appellants pleaded before the writ Court that the respondent had moved an application for correction in rates quoted by him after opening of the tenders on 03.03.1998, which could not be allowed. Consequently, the security/earnest money deposited by the respondent was forfeited in terms of clause II of the NIT for failure of respondent in executing the agreement and start the work. The learned Writ Court was of the view that since an offer could be withdrawn before such offer was accepted, the action of appellants in forfeiting the security amount/earnest money could not be supported. The writ petition was allowed and the appellants were directed to refund the security amount/earnest money to the respondent.

(2.) THE impugned judgment formulated by the learned writ Court is assailed on the ground that the learned writ Court has not considered the date of opening of tenders and merely relied upon the date of opening of price bid for making observation in the impugned judgment that the respondent has submitted his application for change of rates before opening of the tenders. It is contended that observations made by the learned writ Court are factually incorrect. It is contended that there was no material before learned writ Court to arrive at the conclusion that the application for change of rates was filed by respondent before the opening of price bid. It is further contended that contractors participating in tendering process could not be allowed to change the rates after opening of price bids as the same would open a flood gate for every contractor having submitted low rates to modify the rates quoted for seeking refund of the security amount.

(3.) HEARD learned counsel for the parties and perused the record.