- (1.) Aggrieved by order dated 28.09.2012 whereby, the contract awarded to the petitioner was terminated and the earnest money deposit, has been forfeited, the petitioner has approached this Court by filing the present writ petition.
(2.) The brief facts of the case are that, pursuant to NIT dated 21.11.2011, the petitioner submitted its bid and in the negotiation, the petitioner wanted that the Railways should provide ballast depot in two parts however, the same was not accepted by the respondent-South Eastern Railways. Work Order dated 18.06.2012 was issued to the petitioner which was received by the petitioner-company on 27.06.2012. Immediately thereafter, the petitioner-company wrote letter dated 06.07.2012 intimating the respondent-Railways that unless, the ballast depot in two parts is allotted to the petitioner, the petitioner-company would not be able to start work. The petitioner-company made further representations also however, request for providing ballast depot in two parts was not accepted by the respondent-Railways and finally, vide letter dated 28.09.2012, the agreement was terminated and E.M.D. was forfeited.
(3.) The learned counsel for the petitioner submits that it would appear from the proceeding dated 18.06.2012 that the condition of the tenderer for providing ballast depot in two parts was not accepted by the respondent-Railways and thus, contract between the parties cannot be said to be concluded. It is submitted that immediately after receiving the Work Order dated 18.06.2012, the petitioner wrote letter dated 06.07.2012 which should have been treated as revocation of agreement between the parties. It is further submitted that without issuing any notice, the agreement was terminated and E.M.D. was forfeited which cannot be justified by the respondent-Railways. Relying on decision in "M/s. Kailash Nath Associates Vs. Delhi Development Authority & Anr. [Civil Appeal No. 193 of 2015], it is submitted that since there is no pre-estimation of damage to the respondent-Railways, the entire E.M.D. amount could not have been forfeited. The learned counsel for the petitioner relied on decisions of the Hon'ble Supreme Court in "Oryx Fisheries Private Limited Vs. Union of India and others, 2010 13 SCC 427" and a judgment of this Court in "Modi Projects Ltd., Ranchi Vs. State of Jharkhand, 2012 3 JLJR 60".;