Smt. Namita Paul v. Food Corporation of India and Ors

Judgment & Order : 11.04.2023.

Whether fit for reporting : NO.

HON'BLE THE CHIEF JUSTICE (ACTING) JUDGMENT AND ORDER(ORAL)

The brief fact of this case is that the petitioner is a transport contractor. The petitioner participated in the tender process and deposited an Earnest Money Deposit (in short 'EMD') of Rs.5,83,800/-. But after the declaration of unsuccessful tender or for any other reason, the tender was scrapped. The respondents did not release the EMD amounting to Rs.5,83,800/- to the petitioner even after repeated requests.

2.

Hence the petitioner filed this present writ petition under Article 226 of the Constitution of India praying for the following reliefs:-

" i) As to why a writ in the nature of Mandamus should not be issued quashing the letter vide No.S&C/1547/Assam/2013/E-Tendering/Part-I/2019/6745 dated

06.12.2021 issued by the Respondent No.2 whereby rejected the application of the petitioner for refund of Earnest Money Deposit amounting to Rs.5,83,800/-.

ii) As to why a Writ in the nature of Mandamus should not be issued directing the Respondents to refund Earnest Money Deposit amounting to Rs.5,83,800/- along with interest at the rate of 12% per annum w.e.f. 17.11.2011 till the date of payment in respect of contract/tender No.S&C/1363/Assam/10 dated 22.09.2010 for transport work from Ex-Rly Siding New Guwahati/FSD New Guwahati to FSD Chandrapur, Tripura.

AND

iii) As to why such other order/orders should not be passed so as to give full relief to the petitioner and, upon causes show, to make the Rule absolute."

3.

Heard Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. A. Bhaumik, learned counsel appearing for the respondents.

4.

Mr. R. Datta, learned counsel appearing for the petitioner submits that the petitioner participated in the tender process but the petitioner was not selected for the said tender. But after the declaration of unsuccessful tender or for any other reason the tender was scraped. So, it was the duty of the respondents to refund the EMD to each and every person who had participated in the said tender process. But the respondents arbitrarily have withheld the EMD for the last 10 years without any valid reasons. As a result, the petitioner is entitled to refund

of the earnest money deposit amounting to Rs.5,83,800/- along with interest @ 12% per annum.

5.

On the other hand, Mr. A. Bhaumik, learned counsel appearing for the respondents submits that this writ petition involves disputed question of facts. The EMD submitted by the petitioner has been set off against the losses suffered by the respondent-Corporation on account of negligence and unworkmanlike performance of the petitioner.

6.

Heard both sides and perused the evidence on record.

7.

The impugned order dated 06.12.2021, is only a communication from the respondent company to the petitioner indicating that his request for return of Rs.5,83,800/- cannot be entertained. This Court is unable to support the case of the respondent's letter dated 06.12.2021 since the same is an unreasoned communication and it is not fair on the part of the respondents to withhold the EMD deposited by the petitioner herein with the simple line that 'your request for refund of the aforementioned amount cannot be entertained'. The same amount to arbitrary action. In any event, if the respondents think that the petitioner is not entitled, it is the prima facie duty of the respondents to indicate under what provision of law her EMD cannot be returned. In the event, if it is to be forfeited a

separate proceeding needs to be issued, or in the event if there is any resultant loss that has been suffered by the respondents, on account of the petitioner's contract, it is not just on the part of the respondents to withheld the EMD without there being any expressed order forfeiting her EMD. Withholding the EMD of the petitioner without giving any opportunity to the petitioner amounts to violation of the principle of natural justice and is also against the principle of ad alteram partem as clearly indicated herein above.

8.

In view of the above discussion, the impugned letter of the respondents dated 06.12.2021 is set aside and the respondents are directed to reconsider the request of the petitioner in accordance with the law within a period of 2(two) months from the date of receipt of the copy of this order.

9.

With the above observation and direction, this present writ petition stands disposed of. Stay if any stands vacated. Pending application(s), if any, also stands closed.

CHIEF JUSTICE (ACTING)

suhanjit

HIGH COURT OF TRIPURA AGARTALA WP(C)NO.76 OF 2022 Smt. Namita Paul ………Petitioner(s) Vs. Food Corporation of India and ors. ……Respondent(s) For the Petitioner(s) : Mr. R. Datta, Advocate. For the Respondent(s) : Mr. A. Bhowmik, Advocate. Mr. S. Dey, Advocate. Date of hearing and delivery of