- (1.) THE appellant is a Co-operative Society registered under the West bengal Co-operative Societies Act and Rules framed there under. The appellant claims that under a valid certificate issued by the Co-operative societies Department, the society is eligible to purchase consumer goods and to supply the same in different institutions. The appellant also claims that the society is eligible for exemption from payment of earnest money and security deposit against Government tenders in terms of G. O. No. 4141 (68)/co-op. dated 24th November,1966 of the Co-operative department. The certificate has been renewed from time to time. For the year 2007/2008, the Chief Medical Officer of Health, Burdwan issued a tender notice for supply of cooked diet in different hospitals of the district. The appellant participated in the aforesaid tender process along with others. The tender was due to be opened on 25th September, 2007. The opening of the tender was delayed, as respondent No. 1, viz. , Shiba Prasad banerjee filed a writ petition being W. P. No. 26702 (W) of 2008 in which interim orders had been issued. Ultimately the writ petition was disposed of with a direction to open the tender, which was actually opened on 6th november, 2008. On opening the tender the appellant was found to be successful. This prompted the respondent No. 1 to file a subsequent writ petition, being W. P. No. 32307 (W) of 2008. In this writ petition, the respondent No. 1 had prayed for issuance of a writ in the nature of mandamus directing the respondents to withdraw, cancel or quash the work-order issued in favour of successful tenderers. Respondent No. 1/ writ petitioner had also made a prayer for a direction upon the State respondents to take steps against private respondent No. 6, being the appellant herein and the concerned officials for allowing exemption in respect of earnest money and security deposit in favour of the appellant. After hearing counsel for the parties, the learned Single Judge was pleased to allow the writ petition with a direction that the appellant/respondent no. 6 would only be entitled to commence supply, upon deposit of the security deposit, in terms of the tender document. Aggrieved against the aforesaid directions, the Co-operative Society has filed the present letters patent appeal.
(2.) WE have heard the learned Counsel for the parties. It is submitted by the learned Counsel for the appellant that the society is duly registered under the West Bengal Co-operative Societies Act and the Rules. It is also duly certified to be eligible for exemption from payment of earnest money and security deposit against the Government tenders on the basis of general order issued by the State of West Bengal. In support of this submission, the learned Counsel relied on the certificates which had been attached with the stay application. Learned Counsel also made a reference to the actual tender notice and submitted that the tender notice itself provided for exemption to the Co-operative Societies, not only from payment of earnest money, but also from security deposit. It is submitted that the learned Single Judge erred in law in concluding that the tender notice did not provide for exemption from furnishing of security deposit.
(3.) LEARNED Counsel appearing for the respondent No. 1/writ petitioner, however, submitted that a perusal of the tender document would clearly show that Co-operative Societies are entitled to claim exemption only with regard to the deposit of earnest money. So far as earnest money is concerned, the tender notice makes an express provision with regard to the same. However, with regard to security, the tender notice only provides that the amount deposited by the successful tenderer by way of earnest money shall be converted into security deposit. This presupposes that only the earnest money of a tenderer who has not claimed any exemption from deposit of earnest money, can be converted into security deposit. Learned Counsel further submitted that in case the interpretation placed on the tender document by the counsel for the appellant is accepted, it would amount to introducing new terms into the tender documents. This, according to the learned Counsel, cannot be permitted. In support of this submission the learned Counsel relied on two judgments of the Supreme Court- (1) Paragraph-13 of the judgment in the case reported in 2000 (5) SCC 287 and (2) Paragraph -23 of the judgment in the case reported in 2001 (2) SCC 451.;