Gandharva Infrastructure and Projects Ltd Through Director Santosh Kumar Bagla v. Union of India Through Secretary & Ors

SANJEEV NARULA, J. SEPTEMBER 06, 2023 B.S. Rohella

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 06.09.2023 % LPA 623/2023 and C.M. Nos.46314-46315/2023 GANDHARVA INFRASTRUCTURE AND PROJECTS LTD THROUGH DIRECTOR SANTOSH KUMAR BAGLA ..... Appellant Through: Mr. Manoj Kumar Garg & Mr. Pulkit Atal, Advocates. versus UNION OF INDIA THROUGH SECRETARY & ORS. ..... Respondents Through: Mr. Anurag Ahluwalia, CGSC with Mr. Kaushal Jeet Kait & Mr. Parimal Bhatia, Advocates for Respondent/ UOI. Mr. O.P. Gaggar & Mr. Sachindra Karn, Advocates for Respondent No.4/ UBI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV NARULA SATISH CHANDRA SHARMA, CJ. (ORAL) 1. The present Letters Patent Appeal ("LPA") is arising out of judgment dated 08.08.2023 passed in W.P.(C.) No. 9736/2023, whereby the learned Single Judge has declined the grant of relief as prayed for in the writ petition which was in respect of refund of Earnest Money Deposit ("EMD") made by the Appellant/Petitioner against the tender No. MCF/CMG/BH/ETN- 08/2019-20 dated 09.07.2019 issued by Respondent No. 3 ("Subject Tender"). 2. The facts of the case reveal that the Appellant before this Court – a public limited company, incorporated under the Companies Act, 1956, participated in the Subject Tender. The Subject Tender was issued for the work of construction of pre-engineered steel building for LEOP Control Centre ("LCC") for Master Control Facility at Bhopal including Civil, PH, Electrical, Air-Conditioning and allied works. The Appellant submitted its bid on 25.07.2019 and also deposited the EMD of Rs.28,02,000/- vide FDR No.530401038029902 dated 22.07.2019 as required by the Subject Tender. 3. The Appellant's contention is that after submission of the bid, the Appellant realized that it has committed an inadvertent clerical mistake, whereby the Appellant has not included the GST component in the rates quoted by it in the bid, and in those circumstances, the Appellant approached Respondent No.3 vide letter dated 05.08.2019 seeking modification of the tender document which was submitted by the Appellant. 4. The facts on record establish that on 06.08.2019, the Respondent No.3 issued a work order in favor of the Appellant basis the rates quoted by the Appellant in the first instance. The Appellant thereafter issued various e- mails to Respondent No. 3 on 08.08.2019, 16.08.2019, 12.09.2019 & 01.10.2019 stating that it has already sought modification of tender bid and it should be permitted to do so. The Appellant stated that on account of an inadvertent error, it had quoted the rates excluding the GST component, and therefore, it should be permitted to modify its bid. 5. The Appellant kept on making representations in the matter. Even after the work order was accepted, the Appellant made a request to Respondent No. 3 for release and refund of 100% of the EMD submitted by the appellant. 6. The facts further reveal that the Appellant in its repeated representations and e-mails wanted to modify the bid. It had initially quoted a sum of Rs.16,92,35,282.70/- in its bid and wanted to modify it to Rs.19,45,87,340.00/- and the said request was not accepted by Respondent No.3. The work order was issued by Respondent No. 3 accepting the bid of the Appellant at the price of Rs.16,92,35,282.70/- as submitted by it in the first instance. The contract in question was a time-bound contract, and in those circumstances, on 13.11.2019, Respondent No.3 wrote a letter to the Appellant conveying that on account of non-fulfillment of contract conditions, the work order has been cancelled and 100% EMD has been forfeited. 7. The Appellant – being aggrieved by the aforesaid, again submitted a representation on 14.11.2019 to the Union Bank of India ("UBI")/Respondent No. 4 referring to Clause 16 of the Notice Inviting Tender ("NIT") and stated that only 50% EMD can be forfeited and not 100% EMD. The request of the Appellant was not accepted. 8. In those circumstances, the Appellant came up before this Court by filing the underlying