IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 21ST DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2303 OF 2018 (GM-TEN) BETWEEN:
1. UNION OF INDIA MINISTRY OF RAILWAYS SHASHTRY BHAVANA NEW DELHI-110 011.
2. THE SENIOR DIVISIONAL COMMERCIAL MANAGER BENGALURU DIVISION SOUTH WESTERN RAILWAY DIVISIONAL RAILWAY MANGERS OFFICER COMMERCIAL BRANCH BENGALURU-560 023.
3. THE SENIOR DIVISIONAL FINANCE MANAGER BENGALURU DIVISION SOUTH WESTERN RAILWAY BENGALURU-560 023 ... APPELLANTS (By Sri SANJAY GOWDA N S – ADVOCATE ) AND SHAKTHI VAISHNAVI ENTERPRISES NO.13 1ST FLOOR BHARATH BHAVAN OPP:BHARAT PETROL BUNK INFANTRY ROAD SHIVAJINAGAR BENGALURU-560 001 REPT BY ITS PROPRIETOR G SUBRAMANYAM …. Respondent (By Sri HALESHA R G – ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ORDER DATED 22.02.2018 PASSED IN W.P.NO.165 OF 2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT AND CONSEQUENTIALLY DISMISSED THE WRIT PETITON IN THE INTERESTS OF JUSTICE AND EQUITY.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 22.02.2018 passed by the learned Single Judge in W.P.No.165 of 2017 directing the respondents to refund the EMD of Rs.15,86,338/- to the petitioner within four weeks, the respondents have filed this appeal.
2. Sri.Sanjaygowda, learned counsel for appellants contends that the order passed by the learned Single Judge is erroneous. That, clause 4(k) of the tender document conditions clearly indicates that EMD would be forfeited. Notwithstanding the same, the learned Single Judge has exercised equity and has directed return of the EMD. Hence, it is erroneous.
3. The same is disputed by the respondent’s counsel. He submits that subsequent to the tender being submitted, he has offered an explanation as to why he has quoted less than the reserve price.
4. Learned counsel for the respondent has filed a memo in the court today undertaking that he would be satisfied if he receives 75% of the EMD deposit and that he has no ground to challenge any other grievance.
5. On considering the contentions, we are of the view that there is no error committed by the learned Single Judge that calls for interference. Notwithstanding the fact that clause 4(k) of the tender document would indicate that tenderers who have quoted less than the reserve price their EMD amount would be forfeited, the learned Single Judge has exercised equity and granted refund of the entire EMD keeping in mind clause 4(k) of the tender document conditions as well as the fact that there is no financial loss to the appellant or there is any loss of any other income or otherwise to the exchequer.
6. However, keeping in mind the huge sums involved and the memo of undertaking filed by the counsel for the respondent in the court today and also in view of the peculiar facts and circumstances of the case, we are of the view that the order of the learned Single Judge directing the appellants to refund the entire amount to the writ petitioner requires to be modified. Hence, we pass the following :
ORDER The appeal is partly allowed. Direction issued by the learned Single Judge to the appellants to refund EMD of Rs.15,86,338/- to the respondent, vide order dated 22.01.2018 in W.P.No.165 of 2017, is set aside. In its place, the appellants are directed to refund 75% of the EMD to the respondent within eight weeks from the date of receipt of a copy of this order.
Sd/- Sd/-
JUDGE JUDGE rs