SOUTHERN CARGO & LOGISITICS A REGISTERED PARTNERSHIP FIRM Vs. CHIF COMMERCIAL MANAGEAR, WESTERN RAIWAY STATION & ANR.
HIGH COURT OF BOMBAY
Southern Cargo And Logisitics A Registered Partnership Firm
Chif Commercial Managear, Western Raiway Station And Anr.
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Bharati H. Dangre, J. -
(1.) The petitioner, a partnership concern, dealing in business of cargo and logistics, has approached this Court seeking a direction to quash and set aside the letter dated 19/24th April, 2013 addressed by respondent no.2 to the petitioner, thereby informing the petitioner that the amount of Earnest Money Deposit (EMD) and guarantee amount tendered by the petitioner along with the offer is being forfeited in terms of Clause 13 of the terms and conditions of the tender document. According to the petitioner, the said action of the respondents is patently illegal and according to the petitioner the offer submitted by him was never a conditional offer resulting into forfeiture of his EMD and guarantee amount, as sought to be construed by the respondents.
(2.) For appropriate adjudication of the matter in hand, it is necessary to refer to the essential chronology of events leading to the present adjudication:
i) The respondents are the officials of the Western Railway and respondent No.1 floated a tender for leasing of Parcel Vans (VPs) of 23 tonnes capacity on the round trip basis on payment of lump sum rates for loading and unloading of parcels by the specified trains for a period of three years. The First Tender was published vide tender notice No.2/2012-13 and the trains in which the Parcel Vans were to be loaded, were mentioned in the tender document and it covered two trains namely Porbunder Howrah Express and Kaviguru Express.
The Tender Notice specified the salient feature of the scheme and enumerated that VPs will be on round trip basis for a period of three years and it was also specified that only leaseholders who are registered under category "A" with Railways of originating or destination station of the train can participate in the tender process. The closing date and time of the tender was specified as 18/12/2012 at 15:00 hours and the tender opening date and time was specified as 18/12/2012 at 15:30 hours. The tender document was accompanied by Instructions to Tenderers and also terms and conditions of the tender for leasing of the Parcel Vans (VP) on round trip basis. Condition no.1 and 6 of the terms and conditions of tender read as follows:-
"1. Leasing of Parcel Van for transportation of parcels is normally between originating and terminating points of the assigned train and the VPs will be leased out on round trip basis only.
6. The Tenderer should offer per round trip lump sum rate in the enclosed format of the tender form according to the frequency of the train for the subject work. The tenderer, while submitting tender, shall be required to give the following information in the tender form, failing which his tender will not be considered."
ii) By virtue of condition no.11 of the terms of the tender form, the tenderer was required to remit Earnest Money Deposit (EMD) and guarantee amount separately for each train along with the offer. It is also stipulated that the tenderer shall hold an offer open for a period of 90 days from the date fixed for opening the same and extend the validity for another 30 days in case specially asked upon to do so in writing. Clause 12 (a) deals with refund of EMD and guarantee amount, which read as under:
"12.(a) The Earnest Money and Guarantee amount will be refunded to the unsuccessful tenderer (s) after finalization of the tender. ..."
The Clause 13 of the terms and conditions of the tender is reproduced below:-
"13. Forfeiture of EMD and guarantee amount (for commencing contract in time:
The EMD and guarantee amount (for commencing contract in time ) will be liable for forfeiture without any prejudice to any other rights or remedies, if-
(a) The tenderer withdraws the offer before finalization of the tender process by the administration.
(b) The party fails to execute the contract (documents (Agreement within 15 days after the receipt of the acceptance letter issued by the Railways.
(c) The party fails to commence loading within 15 days after receipt of order to that effect.
(d) The Railway will not accept tender wherein conditional offer has been given and the offer will be outrightly rejected."
(3.) The present case in hand revolves around the applicability and interpretation of Clause 13 (d) quoted above.;
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