AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjeev Sachdeva, J. - (Oral) - The petitioner impugns order passed by the High Level Committee, communicated to the petitioner vide letters dated 18.11.2014 and 27.01.2015, whereby the security deposit of the petitioner has been forfeited.
The respondent had floated a tender for sale of wheat at Food Supply Depot Mokama, Food Supply Depot Buxar and Food Supply Depot NRPA, inviting bids from empanelled bulk buyers to lift the entire quantity of wheat from each of the three Centres.
The petitioner participated in the tender and was successful in its bid for purchase of 2,000 metric tonnes of wheat at Mokama and 1000 metric tonnes of wheat at Buxar.
The petitioner deposited an amount of Rs.42,56,250/- towards Earnest Money Deposit. Letter of allotment was issued to the petitioners by the respondents on 07.09.2012 approving the delivery of the aforesaid quantity from the respective Depots. The petitioner was allocated specified time to lift the entire quantity of wheat.
Clause (H) of the Tender stipulated that if the entire stock could not be lifted due to Force Majeure or due to the operational constraints of the Food Corporation of India, then the petitioner would be entitled to refund of all the amount of the unlifted quantity of wheat.
It is an admitted position that the petitioner could not lift the entire quantity of wheat within the period stipulated.
The contention of the petitioner is that there were operational constraints on the part of the respondent because of which the entire quantity could not be lifted.
Detailed report of non-lifting of the entire wheat stock issued by the respondents for the respective Depots is as under:-
Food Storage Depot Buxar
S. No.
Date
No.of Trucks for which programme was given
No.of trucks placed by the party
No. of trucks loaded
Total quantity of loading (in Qts.)
Remarks
1
12/09/12
1
1
1
161,93.875
2
13/09/12
Delivery postponed as all staff went to attend enquiry at RO, Patna
3
14.09.2012
-Do-
4.
15.09.2012
-Do-
5.
16.09.2012
Sunday
6.
17.09.2012
Viswakarma Puja�not loaded
7.
18.09.2012
Date of delivery expired
8.
19.09.2012
-Do-
9.
20.09.2012
-Do-
10.
21.09.2012
3
3
3
449.76.500
11.
22.09.2012
5
5
5
920.69.700
12
23.09.2012
Sunday
13
24.09.2012
2
2
0
Due to heavy pressure of State Government delivery the same was not loaded.
14
25.09.2012
--
15.
26.09.2012
--
Total � 1532.40.075
Balance � 8467.59.925
Food Storage Depot Mokama
Sl. No.
Date
No. of Trucks for which programme was given
No. of trucks placed by the party
No. of trucks loaded
Total quantity of loading (in Qts.)
Remarks
1
12.09.2012
03 Trucks
488.32.100
The ITC have been lifted of balance quantity against the loading RO No.01/OS dated 03.09.12
2
13.09.2012
04
587.83.00
3
14.09.2012
05
891.50.100
4
15.09.2012
10 Trucks
05
897.13.00
5
16.09.2012
-
-
Sunday
6
17.09.2012
On the eve of Viswakarma puja, no trucks have been placed
7
18.09.2012
The validity of period of RO have been expired
8
19.09.2012
Extension order have been placed at 4 PM on
9
20.09.2012
Due to called up of Bharat Bandh, no trucks have been placed
10
21.09.2012
12
10
1576.82.00
11
22.09.2012
12
04
59067.00
12
23.09.2012
-
-
-
13
24.09.2012
15
10
1593.67
Sunday
14
25.09.2012
15
03
448.93050
15
26.09.2012
10
03
494.95.00
Perusal of the report of the Depot at Buxar shows that the period of delivery was from 12.09.2012 to 18.09.2012. On 12.09.2012, the number of trucks for which programme was issued was one and the petitioner placed one truck for lifting of the load. However, on 13.09.2012 to 15.09.2012, delivery was postponed as the entire staff of the respondent went to attend inquiry at RO, Patna, 16.09.2012 was a Sunday, on which date lifting was not permitted. On 17.09.2012, lifting was not permit as it was Vishwakarma Day. On 18.09.2012, no programme was issued by the respondent as the time expired.
Extension was granted to the petitioner and accordingly, a programme was issued for placement of three trucks on 21.09.2012 and five trucks on 29.09.2012, which was complied with by the petitioner and appropriate load was lifted, 23.09.2012 being a Sunday, load was not permitted to be lifted. On 24.09.2012, programme was issued for placement of two trucks, which was duly complied with by the petitioner, however, load was not permitted to be lifted because of heavy pressure of State Government. Thereafter on 25.09.2012 and 26.09.2012, no programme was issued and no load could be lifted by the petitioner.
With regard to the report for the Mokama Depot, the period for lifting of load was from 12.09.2012 to 17.09.2012. The petitioner was able to lift part of the load, however, 16.09.2012 being Sunday, load could not be lifted. 17.09.2012, on the eve of Vishwakarma Day, no programme was issued and no load could be lifted.
Extension was granted late in the evening of 19.09.2012, however, on 20.09.2012 and 21.09.2012, because of Bharat Bandh, only part of the load could be lifted. On 22.09.2012 some load was lifted. 23.09.2012 again being a Sunday, no load was permitted to be lifted. Thereafter, on 24.09.2012, 25.09.2012 and 26.09.2012, though some load was lifted, however, the entire load was not lifted because of operational difficulties.
By letter dated 08.05.2013, the General Manager, Regional Officer, Patna, informed the Executive Director, Food Corporation of India, Zonal Office, Kolkata that non-lifting of food grain was due to Force Majeure as well as operational difficulties of Food Corporation of India. The General Manager recommended refund of the cost of the unlifted quantity for both the Depots.
It is an admitted position that the said amount has been refunded.
The issue pertains to only the forfeiture of the security deposit and its refund.
The reports of the two Depots clearly show that there were operational difficulties on the part of Food Corporation of India. Even the General Manager of the respondents, in his letter dated 08.05.2013, has admitted that non-lifting of the food grain was due to Force Majeure as well as operational difficulties of the Food Corporation of India. Consequent thereto, the entire cost of unlifted quantity has been refunded to the petitioner.
Since the security deposit was deposited for the purposes of furtherance of the contractual terms and the respondents themselves have admitted, that petitioner could not lift the stock because of operational difficulties and Force Majeure conditions, the petitioner cannot be held liable for any breach for not complying with the terms and conditions of the Contract.
The respondents have themselves refunded the entire cost of unlifted stock because of Force Majeure conditions and their own operation difficulties. This amounts to an admission on the part of the respondents that the petitioner is not at fault or in breach of any of the condition of not lifting the entire stock.
Since the petitioner is not in breach of the said tender condition due to Force Majeure conditions and the operational difficulties on the part of the Respondents, the respondents could not have forfeited the Security Deposit, which was given solely for the purposes of ensuring compliance of the terms and conditions of the Contract.
In view of the above, the action of the respondent in forfeiting the security deposit cannot be sustained. The same is accordingly quashed.
The respondents are directed to refund the security deposit of Rs. 42,56,250/- within a period of four weeks, failing which the respondents shall be liable to pay simple interest at the rate of 9% per annum till the refund is made in full.
The Writ Petition is accordingly disposed of.
Dasti under signatures of the Court Master.