- (1.) Civil APPEAL NO.3053/2015 @ SLP(C)NO.15689/2011 Leave granted.
(2.) Heard learned Counsel for the parties.
(3.) The question whether the National Highways Authority of India was contractually competent to forfeit the Bid Security from parties who had purchased the Tender Documents came up for consideration before us in Civil Appeals @ SLP(C) No.28475-28476/2010. In the Impugned Order the Division Bench had relied upon the decision of the Constitution Bench of this Court in Fateh Chand vs. Balkishan Dass, 1963 AIR(SC) 1405, to hold that it is not open to any party to deduct from the security the damages for alleged non-performance of a contract if damages were punitive in character. In that case i.e. Civil Appeals @ SLP(C) No.28475-28476/2010, the Appellant National Highways Authority of India, who is also the Appellant before us, had forfeited the entire Bid Security of Rs.13.42 crores and submitted their bids/offers which were stated by the Appellants to be non-responsive. In the course of hearing, however, on the submissions made by the learned Additional Solicitor General who appeared for the Appellant in those cases, the Division Bench had restricted the deduction to 5% of the Bid Security since that was the default deduction envisaged by the Appellant itself in subsequent transactions. Notably, the Division Bench in that case left the party free to initiate civil proceedings to prove or disprove damages, as the case may be. We had dismissed the Appeal of the National Highways Authority of India. In these Appeals, the Division Bench has considered it appropriate to follow the reasoning in Madhucon Projects Pvt. Ltd. vs. NHAI, which Appeal we have also dismissed by separate orders. However, in Madhucon Projects Pvt. Ltd. the writ petitioner had duly completed/performed the contract. It was in those circumstances that the Division Bench of the High Court had concluded that there was no justification whatsoever to carry out any deduction from the Bid Security. It is true that a reference has also been made to another decision of the Division Bench, namely Gayatri DLF Consortium & Ors. vs. National Highways Authority of India. However, the reasoning is predicated on Madhucon Projects Pvt. Ltd.;