- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay high Court, Nagpur Bench, directing the appellant to refund the earnest money which was forfeited along with interest @ 6% from the date on which the respondent had withdrawn its offer till actual date of payment. Further direction was given to refund the amount within a period of 8 weeks from the date of judgment.
(2.) Factual background in a nutshell is as follows:" (1) Appellant no. 2 had issued a Tender notice dated 8.6.1987 for sale of Bamboo units in Vadasa (Unit No. 7) and Gadchiroli (Unit Nos. 10, 11, 12 and 14). The appellant no. 3 had also issued a Tender Sale notice in respect of Bhamragarh (Unit No. 5) chandrapur Circle for the same purpose. The terms and conditions of both the tender notices were identical. The tender was to be submitted in the prescribed form on or before 15.7.1987 and sealed tenders received from the bidders were to be opened on the same day and tenderers were to pay earnest money deposit i. e. 10% of the total royalty to be worked out on the basis of the total estimated yield of that bamboo Unit. It was mentioned in the Tender Notice that the sealed tender should be accompanied by the treasury challan or demand draft indicating that earnest money has been deposited. It was further stated in the Tender Notice that in case of successful tenderers, the earnest money deposit would automatically stand appropriated towards the security deposit which is required to be furnished. It is the case of the respondent that as per the conditions stipulated in the tender after the submission of the tender, the offer would be considered valid for a period of 45 days from the date of the Tender Sale. Pursuant to the tender Notices issued by the appellants 2 and 3, the respondent submitted tenders on 15.7.1987 and before submitting the tender Notice the respondent had deposited the earnest money as required by the tender Notice. As per the clause 7 of the tender, the final sale result was to be declared within 30 days for getting approval of the competent authority and since appellants 2 and 3 did not declare the final sale result even after the expiry of 30 days from the date of opening of the Tender i. e. 15.7.1987, the respondent sent a telegram on 15.8.1987 to appellant nos. 2 and 3 in which it was stated that since the final sale had not been declared within 30 days as per Clause 7 of the Tender Notice, the respondent had withdrawn its offer and requested for return of the earnest money deposit. The respondent also addressed letters to the appellants 2 and 3 on the same date, in which reference was made to the message and telegram which had been sent earlier. On 17.8.1987 the respondent addressed another communication reiterating its stand of withdrawing their offer and requesting for refund of the earnest money. But it did not receive any reply to the telegram which was sent on 15.8.1987 or to the letters sent on the same day addressed to the appellant nos. 2 and 3 and also to the communication dated 17.8.1987 which was addressed to appellants 2 and 3. Therefore, on 2.9.1987 a letter was addressed to the appellant no. 2 stating therein that even after expiry of 45 days on 29.8.1987 the final results had not been declared and, therefore, earnest money deposited by the respondent should be refunded. Again on 16.9.1987 it addressed letters to appellants 2 and 3 stating therein that final sale result had not been declared even after the expiry of 45 days and the respondent had already withdrawn the offer and, therefore, the respondent was entitled to the refund of the earnest money deposit. "" (2). It is an admitted position that the final sale result in respect of the tender opened on 15.7.1987 was declared on 17.9.1987 which was communicated to the respondent on 21.9.1987, in which it was mentioned that the highest offer of the respondent was accepted. "" (3) Request of the respondent for refund of the earnest money deposit was rejected by appellant no. 3 by letter dated 24.9.1987. The respondent filed a writ petition under article 226 of the Constitution of India, 1950 (in short the 'constitution') challenging the decisions of the appellants 2 and 3 dated 23.9.1987 and decision dated 24.9.1987 rejecting the request of the respondent to refund the earnest money. "" (4) Present appellants filed their reply in which they denied the allegations and averments made by the respondent in the writ petition. It was specifically stated that in terms of Clause 7 the interpretation by the present respondent-writ petitioner was not correct. Since the respondent had withdrawn his tender in violation of condition nos. 5 (iv) and 5 (v) before declaration of final sale result, it amounted to the violation of the terms and conditions of the tender notice and, therefore, the earnest money was not to be refunded and the same was liable to be forfeited which has been done. It was also submitted that the writ petition was not maintainable as the controversy related to factual controversy was involved and, therefore, writ application should be dismissed. "" (5) The High Court held that the writ petition was admitted in the year 1988 and though an alternative remedy by way of suit was available, there was no bar for entertaining the writ petition. Interpreting the various conditions of the tender document, the high Court held that the respondent had withdrawn the bid before conclusion of the contract and, therefore, was entitled to refund of earnest money deposited which it had paid to the present appellants at the time of making its offer in the form of bid to the tender notice. Accordingly, as noted above, the writ petition was allowed. "
(3.) In support of the appeal, learned counsel for the appellants submitted that the interpretation put by the High Court is clearly erroneous. Undisputedly, the withdrawal was made before the declaration of the final sale result. The computation of the period as done is also not on a proper reading of the clauses.;