- (1.) LEAVE granted.
(2.) THESE two appeals involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. We may, however notice the fact of the matters involving in both the appeals separately. Appellant is a Government of Karnataka Undertaking engaged in sale of granite of seized and confiscated granite blocks to persons who intend to purchase in the Tender-cum-Allotment sale on "as is where is basis". The relevant terms of the said tender were: "6. The tender/bidder should make arrangements to obtain transit permit at his own cost from Forest department/ksfic. 9. The successful Tenderer/bidder should pay 1/10th amount of the sale value plus taxes as follows:- JUDGEMENT_58_SUPREME8_2008Html1.htm On the same day, the balance amount will be payable as follows: (a) 50% within 15 days of the intimation of confirmation of tender. (b) the remaining amount shall be paid by the end of the June, 1995 or before the stones are lifted whichever is earlier. The period of the contract shall be upto April, 30th 1995. 11. In case of breach of any of the conditions mentioned above, the Managing Director, KSFIC ltd. , is at liberty to cancel the Tender/bid amount and make materials at the risk and cost of the original Tenderer/bidder and the EMD/security deposit furnished by the Tenderer/bidder be forfeited. If the K. S. F. I. C. incurs any extra expenditure in this regard the same will be recoverable from the original Tenderer/bidder. 18. The successful Tenderer/bidder shall make their own arrangements for inspection of seized and confiscated Granite blocks at their own cost located at different places in the Ranges as the offer for sale is on. AS IS WHERE IS BASIS. Rejection due to colour, cracks etc. will not be entertained once the offer is submitted. 19. Sale of granite blocks is agreed upon in good faith and K. S. F. I. C. Ltd. shall not be liable for any damages or otherwise for failure to carryout the obligation which may be occasioned by Act of god, War, Civil Disturbance disorders, strike etc. , or regulation of Government authorities or agencies or similar circumstances beyond its control. 20. Breach of any of the conditions specified supra, by the purchaser will entail forfeiture to K. S. F. I. C. of all deposits paid by him. Further, the Granite blocks already paid for and lying in the field will also be liable to be attached towards the balance due. The Granite Blocks purchased, whether paid or not will also be resold at the risk and cost of the original Tenderer/bidder who will be liable to make good to Government any loss arising out of such resale but shall not be entitled to profits. 34. No material shall be removed from the contract area unless it is covered by transit pass in accordance with the rules under Section 50 of the karnataka Forest Act, 1963. If any problems arise while lifting the blocks from site, necessary assistance will be provided if need be under special circumstances. " Respondent participated in the tender process. It was successful in purchase of: (i) one lot containing 25 blocks (Mulegundi Area), (ii) one lot containing 37 blocks (Mulegundi Area) and (iii) one lot containing 43 blocks (Nehrudoddi Area ).
(3.) THE total sale value of the granite sold to the respondent herein was rs. 21,24,574. 85. Out of the aforementioned sum, admittedly, the respondent on or about 11. 07. 1995 had deposited a sum of Rs. 11,84,447. 90. The balance amount due to the appellant from the respondent was Rs. 9,40,126. 55. In terms of the said tender, the respondent was required to pay not only 10% of the value of the goods but also taxes and other statutory dues paid by the appellant herein. Appellant has paid an amount of Rs. 6,85,642/- being the royalty amount, Forest Development Tax, karnataka Sales Tax and Surcharge on Karnataka Sales Tax etc. Respondent allegedly refused to pay the amount to which it was said to be otherwise liable in terms of Clause 8 of the terms and conditions of the tender.;