PRANAM ENTERPRISES VASTUSHREE COMPLEX v. THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED and METAL SCRAP TRADE CORPORATION LIMITED

**“CR”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 WP(C) NO. 6405 OF 2020** ## **PETITIONER/S:** PRANAM ENTERPRISES VASTUSHREE COMPLEX, OFFICE NO. 10, HYDE PARK SOCIETY, MARKET YARD, PUNE 411 037, REPRESENTED THROUGH MR. NITIN J. KOTHARI, SOLE PROPRIETOR OF PRANAM ENTERPRISES. BY ADVS. AADITHYAN S.MANNALI SRI.ALPHIN ANTONY SRI.VISAKH ANTONY ## **RESPONDENT/S:** 1 THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL COMPLEX, UDYOGAMANDAL 683 501. 2 METAL SCRAP TRADE CORPORATION LIMITED, 19/5 AND 19/6, 3RD FLOOR KAREEM TOWER, CUNNINGHAM ROAD, BANGALORE 560052. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN NAYANPALLY RAMOLA ## **OTHER PRESENT:** ADV.PRATHAMEESH KAMATH AND ADV.C.N. MEHTA FOR THE PETNR **THIS WRIT PETITION (CIVIL) HAVING BEEN FILED ON 28.10.2022, THE COURT ON 02.02.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.6405 of 2020 -2- **==> picture [30 x 9] intentionally omitted <==** ## **JUDGMENT** Dated this the 02[nd] day of February, 2023 The petitioner, a proprietory concern, is engaged in the business of trading of industrial machinery, spare parts, ferrous and non-ferrous scrap etc. The respondent No.2, a public sector undertaking under the administrative control of the Ministry of Steel, Government of India, acted as facilitator and conducted an e-auction of the scrapped ammonia and urea plants and other scraps of the first respondent. The e-auction was conducted based on Ext.P1 published in the website. The petitioner remitted Rs.2 Crores towards Earnest Money Deposit and was allowed to participate in the e-auction conducted on 27.10.2016. The process of bidding was conducted in such a manner that the bidders were allowed to raise the bid by a minimum amount of Rs.25,000/-, W.P.(C) No.6405 of 2020 -3- within seven minutes of the previous bid. In the auction conducted on 27.10.2016, the bid amount kept on increasing and the petitioner was leading most of the time. But, by about 3.29 p.m, one of the bidders hiked the offer to an exorbitant amount of Rs.230,07,50,001/- (Rupees Two Hundred Thirty Crores Seven Lakhs Fifty Thousand and One only). On a mistaken impression that the amount quoted by that bidder was Rs.23,07,50,001/(Rupees Twenty Three Crores Seven Lakhs Fifty Thousand and One only), petitioner increased the bid offer by Rs.2,50,000/-. Thereupon, the petitioner's employee copied the last highest bid reflected on the screen and pasted the same in the bidding column by adding Rs.2,50,000/-. Thereupon, the petitioner's offer became Rs.230,10,00,0001/- (Rupees Two Hundred Thirty Crores Ten Lakhs and One Only) instead of Rs.23,01,00,0001/-, (Rupees Twenty Three Crores One Lakh One only) which was the amount intended. Immediately, the mistake was noted and letters ## W.P.(C) No.6405 of 2020 -4- and e-mails sent to the senior officials of respondents 1 and 2, pointing out the mistake and seeking permission to withdraw the offer. Instead of responding to the repeated requests, second respondent issued Ext.P15 mail, informing that the petitioner's bid was accepted, subject to approval of the first respondent. Thereupon, the petitioner's representatives personally met the officials of the first respondent and submitted Exts.P16 to P18 representations, repeating the request to cancel the bid and refund the EMD. To the petitioner's dismay, as per Ext.P19 e-mail dated 25.11.2016, the second respondent directed the petitioner to deposit an amount of Rs.23,00,00,000/- towards 10% of the bid amount within 7 days, for approving the bid and proceeding with the sale of the auctioned items. It was also informed that, in case of failure to make the payment, the petitioner's account with the second respondent would be deactivated. Once again, the petitioner pleaded for cancellation of W.P.(C) No.6405 of 2020 -5- the bid and refund of EMD. Surprisingly, without even adverting to the representations, the second respondent issued Ext.P23 e-mail on 07.02.2017, stating that the auction lot had been approved by the first respondent on 25.11.2016 and the last date for submitting 10% of the EMD being 02.12.2016, the petitioner's pre-bid EMD of Rs.2 Crores was forfeited as per Clause 5.0(C) of the Special Terms and Conditions of the e-auction. According to the petitioner, forfeiture of its EMD amounts to unjust enrichment and is vitiated by arbitrariness and irrationality. The illegality committed against the petitioner would be evident from the fact that the same lot was subsequently auctioned for Rs.22,42,00,0001/-, ie, less than 1/10[th] of the offer made by the petitioner mistakenly. Hence, this writ petition seeking the following reliefs; _“a) That this Hon'ble Court be pleased to call for the record and proceedings pertaining to E-auction No. MSTC/BLR/THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD.,_ W.P.(C) No.6405 of 2020 -6- _COCHIN DIVISION/5/KOCHI/16-17/ 10298 (Exhibit P1) and direct the Respondents to refund the EMD amount of Rs. 2,00,00,000 (Rupees Two Crores only) withheld under the tender along with interest at 9% p.a.;_ _b) In the alternative to prayer (a), that this Hon'ble Court be pleased to direct the Respondents to hear the Petitioner personally and take a decision on its various representations culminating in Exhibit P25._ _c) That this Hon'ble Court be pleased_ _to direct the Respondent to pay the Petitioner cost of the present Writ Petition.”_ 2. Heard Advs.C.N.Mehta and Aadithyan S.Mannali for the petitioners and Adv. Ramola Nayanpally for the respondents. 3. According to the learned Counsel for the petitioner, it is clear as day light that the petitioner had quoted the exorbitant amount of Rs.230,10,00,0001/- due to a _bona fide_ error. On realising the mistake, the petitioner had immediately sent e-mail communications to all concerned, pointing out the mistake and requesting to cancel the bid. Instead of acceding ## W.P.(C) No.6405 of 2020 -7- to the reasonable request, the respondents pounced on the opportunity to make unjust enrichment. Being instrumentalities of State, the respondents are bound to act in a fair and reasonable manner. The illegality committed by the respondents in forfeiting the petitioner's EMD stands proved by the same lot having been auctioned for less than Rs.23 Crores. It is contended that, under similar circumstances, the High Courts of Madras and Chhattisgarh had directed to refund the EMD. In this regard reliance is placed on the decisions in _**M/s.Hameed Enterprises v The Registrar, Indian Institute of Technology and another [2014 SCC OnLine Mad 7075], The Registrar, Indian Institute of Technology and another v M/s.Hameed Enterprises and another [2015 SCC OnLine Mad 1803], Arun Kumar Gupta v State of Chhattisgarh and others [W.P.(C) No.1030/2019 dated 18.04.2022]**_ ## W.P.(C) No.6405 of 2020 -8- 4. Learned Counsel for the respondents questioned the maintainability of the writ petition on the ground that the petitioner has got an efficacious alternative remedy by way of arbitration, as provided in Clause 62.0 of the Special Terms and Conditions of the e-auction. It is contended that the petitioner cannot seek to invoke the public law remedy for getting the EMD refunded, that too after expiry of more than 3 years, the period within which a civil suit could have been filed for the same purpose. 5. On merits, it is contended that, as per Clause 5.0(C) of Ext.P1, the pre-bid EMD amount is liable to be forfeited if the highest bidder fails to pay the balance EMD stipulated in Clause 12.0, within the prescribed time limit. Clause 12.0(a) stipulates that EMD of 10%of the bid value for the sold/confirmed lots has to be paid to the second respondent within seven days from the date of confirmation of sale. Clause 9.2 makes the bidder responsible for all consequences ## W.P.(C) No.6405 of 2020 -9- arising out of the bid submitted by him (including any wrongful bidding). The Clause also cautions the bidder to carefully check the entries (the bid amount/No. of '0'/No.digits/unit of measurement etc) and rectify the bid (if required) before submitting the bid into the live e-auction floor. It is contended that, having participated in the tender after accepting the conditions, the petitioner cannot be permitted to wriggle out of its liability. Moreover, a writ petition seeking refund of Earnest Money Deposit cannot be entertained. In support of this contention, reliance is placed on the Apex Court decision in _**Villayati Ram Mittal Pvt. Ltd v.**_ ## _**Union of India and another [(2010) 10 SCC 532]**_ . 6. In reply, learned Counsel for the petitioner submitted that there is no prohibition against entertaining writ petitions pertaining to contractual matters. In support of this proposition, reference is made to _**Unitech Limited**_ W.P.(C) No.6405 of 2020 -10- ## _**and others v. Telangana State Industrial Infrastructure Corporation and others [2021 SCC**_ _**OnLine SC 99]**_ . It is also contended that, availability of alternative remedy do not prevent courts from entertaining writ petition in appropriate cases. To buttress this argument, reliance is placed on _**Uttar Pradesh Power**_ _**Transmission Corporation Ltd and another v. CG Power and Industrial Solutions Ltd and another**_ _**[(2021) 6 SCC 15]**_ . 7. On the aspect of delay, it is submitted that filing of the writ petition was delayed, since the proprietor of the petitioner was busy with the treatment of his critically ill father and was also engrossed in a criminal proceeding. It is contended that a meritorious writ petition should not be dismissed merely for the reason that it is filed beyond the period of limitation prescribed for civil action. Moreover, the petitioner had throughout been representing for W.P.(C) No.6405 of 2020 -11- refund of the EMD and the obstinate refusal to even respond to the representation finally left the petitioner with no choice than to approach this Court. To drive home the argument that in an appropriate case the High Court can interfere, even if there is delay, reliance is placed on ## _**Tukaram Kana Joshi v MIDC [(2013) 1 SCC 353]**_ . 8. To counter the last explanation offered for the delay, learned Counsel for the respondents pointed out that, as per available records, the petitioner had made 29865 successful bids against 3044 lots in 674 auctions during the period 07.02.2017 and 28.02.2020. 9. Going by the admitted facts, the petitioner's final quote was Rs.230,07,50,001/-. There being no higher offer within the prescribed seven minutes, the offer was accepted and later approved. No illegality can be attributed to the said action of the respondents, since the procedure followed was in accordance with the tender conditions. Further, Clause 5.0.(C) ## W.P.(C) No.6405 of 2020 -12- provides for forfeiture of the full pre-bid EMD, if the highest bidder, in whose favour the sale intimation letter is issued, fails to pay the EMD as per Clause 12.0, viz; 10% of the bid value, within seven calendar days of confirmation of sale. In the instant case, the sale was confirmed on 25.11.2016 and that fact informed to the second respondent _vide_ Ext.P19 e-mail dated 25.11.2016. As the EMD in terms of Clause 12.0 of Ext.P1 was not paid within seven days of communication, the pre-EMD of Rs.2 Crores was forfeited on 07.02.2017. 10. In the light of the above facts, the question emerging for consideration is whether, even if the petitioner's contention that the last quote was a mistake and the respondents were alerted about the mistake immediately after the auction, this Court would be justified in cancelling the bid and directing refund of the EMD by exercising the power under Article 226. That question can be considered only if the writ W.P.(C) No.6405 of 2020 -13- petition is found to be maintainable. The primary objection as to maintainability is premised on the availability of alternative remedy under Clause 62.0 of Ext.P1, by way of dispute resolution through arbitration. In _**Unitech**_ _**Limited** (supra)_ , the Apex Court held that the presence of an arbitration clause would oust the jurisdiction under Article 226. At the same time, it was also observed that the question whether recourse to a public law remedy can justifiably be invoked is to be decided on a case to case basis. In _**Uttar Pradesh Power**_ ## _**Transmission Corporation Ltd** (supra),_ it has been held that the existence of an arbitration clause does not debar the court from entertaining a writ petition. Therefore, the legal position is that in exceptional cases, writ jurisdiction can be invoked, in spite of existence of an arbitration clause or other efficacious alternative remedy. 11. Then the question arises as to whether ## W.P.(C) No.6405 of 2020 -14- the petitioner has made out any extraordinary circumstance justifying the invocation of the power under Article 226. While considering that question, the objection of the respondents regarding the delay in filing the writ petition assumes relevance. Indisputably, the writ petition is filed after three years of forfeiture of the pre-EMD. If the petitioner had filed a civil suit after three years, that would have been barred by limitation. As held in _**State**_ _**of Madhya Pradesh and another v. Bhailal Bhai and**_ _**others [AIR 1964 SC 1006]**_ , writ petitions may be considered when the delay is less than the period of limitation prescribed for civil action for the remedy. If the delay is more than the said period, it will almost always be proper for the court to hold the delay to be unreasonable. In this context, it may be apposite to read the following erudite discussion in _**Kamini Kumar Das**_ _**Choudhury v. State of W.B. [(1972) 2 SCC 420];**_ W.P.(C) No.6405 of 2020 -15- _“10.If this is the position with regard to the petitions under Article 32 of the Constitution, we do not think that the rule that delay defeats the rights of a party to seek redress, by means of prerogative writ under Article 226 of the Constitution, could be held to be abrogated merely because, if the claim had been brought in a civil court, the period of limitation would not have expired. The question in such cases is always whether relief under Article 226 of the Constitution could justly and properly be given than by leaving the parties to the ordinary remedy of a suit. A case in which a tax is imposed under a clearly void law is different from one where seriously contested questions of fact have to be decided before an order of dismissal could be held to be void. In the case before us, the most that the High Court could have done was to quash the order of dismissal and to leave the authorities free to take proceedings afresh against the appellant. The appellant would then have got another long period of years in front of him to go on contesting the validity of proceedings against him until he had gone past the age of retirement. In such cases, it is imperative, if the petitioner wants to invoke the extraordinary remedies available under Article 226 of the Constitution, that he should come to Court_ W.P.(C) No.6405 of 2020 -16- _at the earliest reasonably possible opportunity. If there is delay in getting an adjudication, a suit for damages actually sustained by wrongful dismissal may become the more or even the only appropriate means of redress. Every case depends upon its own facts._ _(Emphasis supplied)_ Going by the precedents, the inordinate delay of more than three years, the explanation for which has become suspect in the face of the statistics pointed out by the respondents will take the wind out of the petitioner's prayer for invoking the extraordinary jurisdiction. 12. Now, even assuming that there is no delay in filing the writ petition, whether a mandamus can be issued for refund of the EMD is another question. The answer is available from the decisions in _**Suganmal v. State of Madhya Pradesh and others [AIR 1965 SC 1740]**_ and _**Villayati Ram Mittal Pvt. Ltd** (supra)._ In _**Suganmal** (supra)_ , the Apex Court held that, normally petitions against the State, praying for -17- ## W.P.(C) No.6405 of 2020 refund of money by a writ of mandamus are not be entertained and the aggrieved party has the right for going to the civil court for claiming the amount. If such remedy is resorted to, it will be open to the State to raise all possible defences to the claim, which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction. In _**Villayati Ram Mittal Pvt. Ltd** (supra),_ it is held that, when earnest money is furnished by a tenderer it forms part of the price if the offer is accepted or when it is refunded to the tenderer if someone else's offer is accepted. But, if for some fault or failure on the part of the tenderer, the transaction or the contract does not come through, the party inviting the tender is entitled to forfeit the earnest money. It is trite that, for a writ of mandamus to be issued, there should exist a legal right in the petitioner and a corresponding legal duty on the State or authority. Here, the petitioner cannot W.P.(C) No.6405 of 2020 -18- claim any legal right since the forfeiture of EMD is in accordance with the tender condition. That being the legal position, the petitioner cannot bank upon the decisions in _**M/s.Hameed**_ _**Enterprises, The Registrar, Indian Institute of Technology and Arun Kumar Gupta** (supra)_ to seek a writ of mandamus directing refund of the EMD. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.6405 of 2020 -19- ## **APPENDIX OF WP(C) 6405/2020** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|A TRUE COPY OF THE AUCTION CATALOG| ||REPORT ALONG WITH THE TERMS AND| ||CONDITIONS.| |EXHIBIT P2|A TRUE COPY OF THE ADVICE OF HDFC BAN| ||DEMONSTRATING PAYMENT FOR A SUM OF RS.| ||2,00,00,000/- TO RESPONDENT NO. 2.| |EXHIBIT P3|A TRUE COPY OF THE SCREEN SHOT TAKEN| ||BY THE PETITIONER DEMONSTRATING THE| ||BID TREND INCLUDING THE PETITIONERS| ||BID AND THE BID OFFERED PRIOR TO IT| ||ALONG WITH THE DATE AND TIME.| |EXHIBIT P4|TRUE COPIES OF THE SAID LETTER DATED| ||27TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE CMD OF THE 1ST RESPONDENT.| |EXHIBIT P5|A TRUE COPY OF THE SAID LETTER DATED| ||27TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE DGM OF THE 2ND RESPONDENT.| |EXHIBIT P6|A TRUE COPY OF THE SAID LETTER DATED| ||27TH OCTOBER 2016 FROM THE PETITIONER| ||TO GM (BUSINESS OPERATION), OF THE 2ND| ||RESPONDENT.| |EXHIBIT P7|TRUE COPY OF THE SAID LETTER DATED| ||27TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE OFFICERS OF THE 1ST RESPONDENT.| |EXHIBIT P8|TRUE COPY OF THE SAID LETTER DATED| ||27TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE OFFICERS OF THE 2ND RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE SAID LETTER DATED| ||28TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE OFFICERS OF THE 2ND RESPONDENT.| |EXHIBIT P10|TRUE COPY OF THE SAID LETTER DATED| ||28TH OCTOBER 2016 FROM THE PETITIONER| ||TO BUSINESS OPERATIONS HEAD OF THE 2ND| ||RESPONDENT.| |EXHIBIT P11|TRUE COPY OF THE SAID LETTER DATED| ||28TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE DGM OF THE 2ND RESPONDENT.| |EXHIBIT P12|TRUE COPY OF THE SAID LETTER DATED| ||29TH OCTOBER 2016 FROM THE PETITIONER| ||TO THE AM OF THE 2ND RESPONDENT.| |EXHIBIT P13|TRUE COPY OF THE SAID LETTER DATED| -20- ## W.P.(C) No.6405 of 2020 28TH OCTOBER 2016 FROM THE PETITIONER TO THE AM OF THE 2ND RESPONDENT. EXHIBIT P14 A TRUE COPY OF THE EMAIL DATED 27.10.2016. EXHIBIT P15 A TRUE COPY OF THE EMAIL DATED 28.10.2016. EXHIBIT P16 A TRUE COPIES OF THE LETTERS DATED 29.10.2016 FROM THE PETITIONER TO THE OFFICERS OF THE 2ND RESPONDENT. EXHIBIT P17 A TRUE COPY OF THE LETTER DATED 1ST NOVEMBER 2016 FROM THE PETITIONER TO THE OFFICERS OF THE 2ND RESPONDENT. EXHIBIT P18 A TRUE COPY OF THE LETTER DATED 4TH NOVEMBER 2016 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P19 A TRUE COPY OF THE EMAIL DATED 25TH NOVEMBER 2016 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P20 A TRUE COPY OF THE LETTER DATED 28TH NOVEMBER 2016 FROM THE PETITIONER TO CMD OF THE 1ST RESPONDENT. EXHIBIT P21 A TRUE COPY OF THE LETTER DATED 5TH DECEMBER 2016 FROM THE PETITIONER TO CMD OF THE 2ND RESPONDENT. EXHIBIT P22 A TRUE COPY OF THE LETTER DATED 04TH FEBRUARY 2017 FROM THE PETITIONER. EXHIBIT P23 A TRUE COPY OF THE EMAIL DATED 07TH FEBRUARY 2017. EXHIBIT P24 A TRUE COPY OF THE EMAIL DATED 3RD A TRUE COPY OF THE EMAIL DATED 3RD MARCH 2017 FROM THE PETITIONER TO THE RESPONDENTS. EXHIBIT P25 A TRUE COPY OF THE PRINT OUT OF THE AUCTION CONFIRMATION DEMONSTRATING THE ACCEPTANCE OF THE BID OF CHINAR STEEL SEGMENT CERNTRE PRIVATE LIMITED FOR A SUM OF RS. 22, 42, 00/000/-