Anubha Rawat Choudhary, J. - (1.) Heard Mr. Nitin Kumar Pasari, counsel appearing on behalf of the petitioner assisted by Ms. Vishakha Gupta, Advocate. Heard Mr. Anoop Kr. Mehta, counsel appearing on behalf of the respondents assisted by Ms. Saumya Pandey, Advocate. This writ petition has been filed for the following relief: (a) For a direction upon the respondents to issue the delivery order to the petitioner and allow the petitioner to lift the coal for which the petitioner has made its bid under e-auction and was declared successful also, but due to bona fide inadvertent mistake, the balance amount deposited towards the said bid after adjustment of the earnest money was transferred to the Bank Account of the Respondent at Bachra Branch and not at Ranchi Branch and for which in a most arbitrary and unreasonable manner, the petitioner's being held defaulter and consequently has been debarred from issuance of delivery order and lifting the coal although the entire money is deposited and lying in the CCL Sales Realisation Account of the Respondents itself. (b) For a direction upon the respondents to show cause as to how, why and under what authority of law the respondents are trying to forfeit the earnest money deposited by the petitioner for the purpose of participating in the bid, when admittedly none of the terms and conditions as postulated in clause 9 of the special terms and conditions have not been violated which deals with forfeiture of earnest money and otherwise also, since the entire remittance has been made by the petitioner against the bid, the petitioner cannot be termed to be a defaulter in terms of the special terms and condition of the e-auction. (c) For a direction upon the respondents to refund the earnest money deposited by the petitioner for the purpose of participating in the e-auction bid, which the Respondents are seeking to forfeit, although no written communication has been given to the petitioner, without any fault of the petitioner. (d) For an appropriate writ in the nature of Certiorari quashing the letters dated 16.8.2012 and 6.10.2012, whereby and whereunder the claim of the petitioner stood rejected, unilaterally without taking into consideration that forfeiture of Earnest Money deposited in the present facts is not contemplated under the e-auction scheme 2007."
(2.) At the outset counsel for the petitioner submits that he is confining his writ petition only to the claim of refund of security money. Arguments of the Counsel for the Petitioner
(3.) Counsel for the petitioner submits as under:- a. The petitioner had participated pursuant to two e-auction notices issued by the respondents and the e-auction were held on 27.6.2012 and 29.6.2012 and is governed by the terms and conditions mentioned in the e-auction notice. As per clause 2 and 2.5 of the terms and conditions of e-auction notice, the petitioner was supposed to get himself registered and deposit earnest money (EMD) in terms of clause 2.5. He submits that there is no dispute that the petitioner had deposited the earnest money to the full satisfaction o: the respondents and thereafter the petitioner was declared successful. b. As per the terms and conditions of the e-auction notice, the petitioner was supposed to deposit the balance amount n terms of clause-6 of the terms and renditions. He further submits that while depositing the balance amount after being declared successful, there was an error m h part as the amount was deposited in bank account of the respondent at Bachra Branch of Punjab National Bank, at Bachra, instead of bank account of the pendents at Ranchi Branch of Punjab National Bank, at Ranchi. The head office of the respondents is situated at Ranchi. c. He further submits that as soon as he was declared successful and after depositing the aforesaid amount with the respondents although in another account of respondents, he approached the respondents for the purposes of delivery of coal and upon which it came to light that the amount in relation to coal value has been deposited in another account of the respondent. d. In such circumstances, the petitioner requested the respondents that the amount which has been credited in Bachra Branch of Punjab National Bank be transferred in the account of the petitioner at Ranchi Branch of Punjab National Bank. e. Thereafter, when the petitioner realised that there was some difficulty in transferring the said amount from Bachra Branch bank account of the respondents to Ranchi Branch bank account of the respondents, the petitioner filed a representation dated 21.7.2012, requesting the respondents to allow him to deposit the said amount again in the Ranchi Branch bank account of the respondents and they undertook to deposit the same immediately on approval. f. Thereafter, he submits that the respondents did not accede to their request and ultimately the impugned letter as contained in Annexure-9, was issued by the respondents, wherein, on the one hand respondents had indicated that the amount deposited by the petitioner in Bachra Branch bank account has been refunded back to the remitting bank and in terms of clause 6 and 9 of the e-auction scheme the earnest money deposited by the petitioner has been forfeited and in the said letter it was also mentioned that the dispute raised by the petitioner has been determined by the General Manager, Sales and Marketing in terms of clause 11.12 (wrongly mentioned as clause 11.1.2). g. Counsel for the petitioner submits that there was a bona fide mistake on the part of the petitioner in depositing the amount so far as sale value is concerned although the sale value of the coal was deposited within time in the account of the respondents only. He submits that the bona fide of the petitioner is apparent from the fact that immediately upon coming to know that the amount has been credited in another account of the respondent, the petitioner had themselves offered to deposit the amount afresh/to transfer the amount deposited in Bachra Branch bank account of the respondents to Ranchi Branch bank account of the respondents both with Punjab National Bank. h. Counsel for the petitioner has referred various clauses of the terms and conditions of the e-auction notice and submits that there is no indication in the terms and conditions of the e-auction notice as to account in which the amount of coal value has to be deposited but at the same time he does not dispute the fact that the petitioner had knowledge that the amount has to be deposited in the Punjab National Bank account, Ranchi Branch, account of the head office of the respondents. i. He further submits that the forfeiture of earnest money is on the ground which is neither contemplated nor mentioned in the terms and conditions of e-auction notice and accordingly, ex-facie the action of the respondents is illegal, arbitrary and without any basis. The respondents being State within the meaning of Article 12 of the Constitution of India, the impugned action is hit by Article 14 of the Constitution of India. j. He further submits that as far as aforesaid facts are concerned, the same have not been disputed by the respondents and accordingly this writ petition is based on admitted fact. Counsel for the petitioner has also referred to the judgment passed by Hon'ble Supreme Court in the case reported in (2010)15 SCC 167 and submits that in case of bona fide mistake, which is rectifiable, the same does not call for imposition of penalty. He has also referred to the judgment reported in (2012)11 SCC 316 on the same point. He submits that forfeiture of earnest money is nothing but penalty. k. He further submits that he is conscious of the fact that there is arbitration clause in the terms and conditions of sale but he submits that on the facts and circumstances of this case and considering the arbitrary action of the respondents, this Court may exercise the power under Article 226 of the Constitution of India. He has also relied upon the judgment reported in (2015)4 SCC 252 para-6 to 13. l. Counsel for the petitioner has also referred to Annexure-10 of the writ petition to submit that under similar circumstances by Mahanadi Coal Fields Limited the amount of security money was refunded through credit note when the person concerned had deposited sale value in another account of the concerned coal company. Arguments of the Counsel for the Respondents. ;