IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2017 BEFORE THE HON’BLE MR.JUSTICE A.S. BOPANNA WRIT PETITION NO.9365/2017 (GM-TEN) Between:
Sachin Traders, Shivalinga Nagar, Haveri – 581 110, By its Proprietor, Siddappa Shivappa Kabbur, S/o Shivappa Kabbur, Aged about 58 years.
(By Sri. Vishwajith Shetty S., Advocate) And:
1. Food Corporation of India, Regional Office, No.10, East End Road, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 041.
By its General Manager.
2. Executive Director, Food Corporation of India, Zonal Office (South), No.3, Haddows Road, Chennai - 600 006.
(By Sri. N. Dinesh Rao, Advocate) …Petitioner ... Respondents This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash order Annexure-C dated 22.11.2016 made by respondent No.1 and order Annexure-D dated 16.01.2017 issued by respondent No.2 and direct the respondent Nos.1 and 2 to refund the earnest money deposit of Rs.6,00,000/- remitted by the petitioner for participating in the E-auction.
This writ petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:
O R D E R The petitioner is before this Court assailing the order dated 22.11.2016 and 16.01.2017 as at Annexures-C and D. In that light, the petitioner is seeking issue of mandamus to direct the respondent Nos.1 and 2 to refund the earnest money deposit (herein after referred to as “EMD” for brevity) of Rs.6,00,000/- (Rupees Six Lakhs only) remitted by the petitioner for participating in the E-auction.
2. The petitioner is a proprietorship concern holding appropriate licence and is empanelled as a trader with the respondents. In that view, the petitioner had participated in response to the Notification dated 31.10.2016 and in terms thereof, had remitted the EMD of Rs.6,00,000/-. They were the successful bidders in respect of the wheat which had been stocked in Chitradurga Depot. As per Clause 10 of the terms and conditions, the petitioner was required to pay the balance amount within seven days. The dates on which the said amount was paid is not in dispute. The respondents however, claiming that the amount was paid in three installments and as such on invoking and applying Clause 10 A. (ii) & (iii) have forfeited the EMD. The petitioner had filed an appeal, which came to be rejected. In that view, he is before this Court.
3. The respondents have filed their objection statement seeking to sustain their action exactly in terms, as has been done in the order passed in the appeal. In that view, it is contended on behalf of the respondents, since Clause 10 provides that if the balance amount is paid in more than two installments, EMD is required to be forfeited, which accordingly has been done. In the light of the contentions, the fact that the balance amount of Rs.54,10,830/- has been paid by the petitioner within a period of 7 days cannot be in dispute in as much as the said amounts had been paid on 05.11.2016, 08.11.2016 and 11.11.2016.
4. The only issue therefore is, as to whether the respondents could have invoked the clause contained in the contract to forfeit the EMD on the premise that the balance amount had been paid in three installments. In that regard, reference to Clause 10 in its entirety would leave no room for doubt that if the balance amount is paid within the first outer limit of seven days, as provided therein the number of installments in which it is paid would be immaterial as long as it is paid within the said seven days period.
5. The restriction in the number of installments being more than two would arise only in a circumstance, if beyond the said period of seven days extension has been granted for payment of the amount and in that circumstance the balance amount was paid in such installments which is beyond two installments. In the instant case, since the petitioner has paid the amount within the initial period of seven days, though it is in three installments, the same would not contravene the conditions contained in the Clause 10 A. (ii) so as to give rise to invoke the right available under sub clause (iii) of Clause 10. In that view, the order impugned is not sustainable.
6. Therefore, the action of the respondents to forfeit the EMD is also not justified. Hence, the order impugned dated 22.11.2016 and 16.01.2017 are quashed and direction is issued to the respondent Nos.1 and 2 to refund the EMD of Rs.6,00,000/- (Rupees Six Lakhs only) remitted by the petitioner for participating in the E-auction as expeditiously as possible, but not later than six weeks from the date on which a copy of this order is furnished.
The petition is accordingly, disposed of.
SD/- JUDGE BMC/-