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Infinity Infra, A registered Partnership firm & Another v/s The City and Industrial Development Corporation of Maharashtra Limited & Others

    Writ Petition No. 6843 of 2022
    Decided On, 11 August 2022
    At, High Court of Judicature at Bombay
    By, THE HONOURABLE MR. JUSTICE S.V. GANGAPURWALA & THE HONOURABLE MR. JUSTICE S.M. MODAK
    For the Petitioners: R.D. Soni a/w. V.R. Kasle I/b. Ram & Co., Advocates. For the Respondents: R1, R2 & R3, Nitin V. Gangal a/w. Prerna Shukla, Advocates, M.P. Thakur, AGP.


Judgment Text
S.V. Gangapurwala, J.

1. Respondent No.1 published an advertisement on or about 31st October 2021 inviting the applications for lease of plots for residential-cum-commercial use for Sector-11, Khargar, Navi Mumbai. The Petitioner herein, on 23rd November 2021 submitted its offer for Plot Nos.103, 108 and 109. The Petitioner deposited the amount of EMD as required. On 25th November 2021 the bids were opened. The Petitioner’s bid was highest. The Petitioner, on 14th March 2022 issued a letter asking refund of the EMD amount on the ground that the validity of the bid period had expired. The Petitioner referred to Clause 5 and 25 of Part-A of the brochure / booklet. On or about 27th April 2022, a letter was issued by Respondent No.1 allotting Plot Nos.103, 108 and 109 to the Petitioners. The Respondents refused to refund the amount of EMD resorting to Clause 4 and 5 of the brochure / booklet.

2. It is the contention of the learned Counsel for the Petitioner that Clause 5 read with clause 25 clearly recites that the bidder can withdraw the offer after period of 90 days from the date of opening of the tender.

3. Upon opening of the tender, the Petitioner waited for 90 days and thereafter on 14th March 2022 gave a letter for withdrawal of the EMD. Same is in consonance with clause 5 read with clause 25. The Respondents are bound to refund the EMD amount.

4. The learned Counsel for the Respondents CIDCO referring to Clause 4 of the said brochure / booklet asserts that the EMD deposited by the bidder shall be forfeited by the CIDCO if the bidder decides to withdraw at any time after the opening of bid or refused or otherwise fails to accept the allotment or after being allotted the plot, commits a breach of any of the relevant terms and conditions under which the residential plot is offered. It is further submitted that the Petitioner is not entitled to withdraw the EMD only on the ground that the 90 days from the date of bid has lapsed. The same would not be in consonance with clause 4 read with Clause 25 of the brochure / booklet.

5. We have considered the submissions canvassed by the learned Advocate for the parties. Before we advert to the arguments of the respective learned Advocates, it would be proper to reproduce the clause 4, 5 and 25 of the brochure / booklet.

“4) The EMD deposited by bidder shall be forfeited by CIDCO, if the bidder decides to withdraw at any time after the opening of bid or refused or otherwise fails to accept the allotment or after being allotted the Plot, commits a breach of any of the relevant terms and conditions under which the Residential Plot is offered.

5) The Bid once made shall remain valid for acceptance by the Corporation for period of 90 days from the last date of receipt of the Bid and it cannot be revoked or varied by the bidder. No charge back cases shall be entertained / considered for any reason. The EMD will be refunded to unsuccessful bidders without any interest only after the completion of eauction activity. EMD refund request made before completion of e-Auction will not be considered. The EMD will not be adjusted against any other scheme.

25) Validity of offer:

The Bidder shall keep the offer valid for acceptance by the Corporation for a period of 3 months from the date of receipt of offer by Corporation. The Bidder shall not withdraw the offer within a period of 3 months. If withdrawn, then the EMD amount paid shall be forfeited.”

6. Thus, clauses referred to above are part of the important terms and conditions incorporated in the booklet.

7. It is a matter of fact that on 25th November 2021 the tenders were opened. For Plot No.103, 12 bids were received, for Plot No.108, 18 bids were received and for Plot No.109, 14 bids are received. In all six bids, the Petitioner was highest.

8. The factual matrix narrated above is not disputed. The bids were filled in on 23rd November 2021. The bids were opened on 25th November 2021 and the results were declared by CIDCO on the same date. The petitioner, for the first time, issued letter dated 14th March 2022 withdrawing its bid. The said withdrawal of the bid of the petitioner is after lapse of 90 days of the last bid received. In fact, it is even after the 90 days, the bids were opened and results were declared by CIDCO. Substratum of the matter would be whether the petitioner would be entitled for refund of Earnest Amount Deposit (hereinafter referred to as, “EMD”).

9. The covenant (5) clarifies that the bid once made shall remain valid for acceptance by the Corporation for the period of 90 days from the last date of receipt of the bid and it cannot be revoked or varied by the bidder. Caluse (25) further provides that the bidder shall keep the offer valid for acceptance by the Corporation for the period of three months from the date of receipt of offer by Corporation. Under the said clause, the bidder is precluded from withdrawing the offer within a period 90 days/3 months. If he so withdraws, then the EMD amount paid shall be forfeited. The restriction upon the bidder to withdraw from the bid is for the period of three months from the date of receipt of offer by the Corporation. Within the period of three months, the bidder cannot withdraw his bid. The offer was received by the Corporation on 23rd November 2021. The bids were opened on 25th November 2021 and the results were also declared. The petitioner, as such, from 23rd November 2021 and/or 25th November 2021 cannot withdraw its bid for the period of three months. The 90 days or three months would lapse on 25th February 2021. The petitioner in view of Clause (5) read with Clause (25) of the terms and conditions cannot withdraw the offer till 25th February 2022. The petitioner in the present case withdrew its offer on 14th March 2022. The petitioner had kept the offer valid for three months from the date of the offer. It is after lapse of three months, the petitioner had withdrawn. For the period of three months, the Corporation did not even communicate acceptance of the bid of the petitioner.

10. Clause 4 of the terms and conditions entitling the CIDCO to forfeit the EMD will have to be read in tune with Clauses 5 and 25 harmoniously and in a way that all the terms and conditions coexist. Under Clause 4, right is given to CIDCO to forfeit the EMD deposited by the bidder if the bidder decides to withdraw at any time after the opening of the bid or refused or otherwise fails to accept the allotment or after being allotted the plot, commits a breach of any of the relevant terms and conditions under which the residential plot is offered. Clause 5 mandates that the bid once made shall remain valid for acceptance by the Corporation for a period of 90 days from the last date of receipt of the Bid and it cannot be revoked or varied by the bidder. Clause 25 further provides that the bidder shall keep the offer valid for acceptance by the Corporation for a period of 3 months from the date of receipt of offer by the Corporation. However, the restriction is provided that the bidder shall not withdraw the offer within a period of three months and if within a period of three months, the bidder withdraws the offer, the consequence is provided in the same clause viz. EMD amount paid shall be forfeited. Clause 4 cannot be read in isolation. Same will have to be read with clauses 5 and 25. Clause 4, as such, will have to be read to mean that the CIDCO shall forfeit the EMD deposited by the bidder if he withdraws at any time after opening of the bid within three months or fails to accept the allotment after being allotted the plot within three months. If Clause 4 is not read in that manner, then Clauses 5 and 25 would be rendered redundant.

11. The elementary principle of interpretation is that all the clauses shall b

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e read harmoneously so that none of the clauses is rendered a dead letter. The clauses appearing in the brochure will have to be interpreted in the manner that they all coexist and that none of the clauses is rendered otiose or superfluous. 12. In view of unambiguous covenant (5) read with (25) of the terms and conditions, the petitioner was entitled to withdraw its offer after lapse of three months. In the present case, the petitioner has withdrawn its offer after lapse of three months. In light of that, the forfeiture clause enumerated in Clauses 4 and 25 would not apply. The covenants apply equally to the petitioner and the Corporation. 13. In light of the above discussion, the petitioner is entitled for refund of EMD. 14. Rule is made absolute in terms of prayer clause (a). 15. The Writ Petition stands disposed of. No costs.
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