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2017 (7) TMI 1341 - DELHI HIGH COURTForfeiture of Earnest Money Deposit (EMD) - debarring the petitioner from participating in any tender / RFP of DTIDC for the current financial year and the next four financial years - legality of addendum to the notice inviting tender issued by DTIDC - Advance License fee not deposited - service of notice - principles of natural justice - HELD THAT:- Concededly, the petitioner had failed to deposit the advance licence fee, other applicable charges as well as the security deposit when called upon to do so in terms of the LOA. The NIT expressly provided for forfeiture of the EMD in the event the bidder did not accept the allotment - In the present case, the petitioner‟s bids were accepted and the LOAs were issued to the petitioner. Thus, in terms of the NIT, the petitioner was required to make the necessary payments and take possession of the shops in question. Concededly, the petitioner did not do so and sought further time of 20 days to fulfil the formalities on account of his ill health. It is clear from the record that DTIDC did not take any steps for cancellation of the allotment till 11.01.2017. This was more than 20 days after 21.12.2016 (the date of the petitioner‟s letter requesting for such further time). It is also relevant to note that even during the course of the present proceedings, DTIDC had offered to allot the shops to the petitioner on the terms of the bid submitted by him - it is apparent that the petitioner is not willing to stand by his bids. It is plainly evident that the petitioner either had second thoughts regarding his bids or otherwise did not have the necessary funds to make the payments; in either event, the petitioner cannot escape the liability as expressly indicated in the NIT. Thus, DTIDC was well within its right to forfeit the EMD in terms of the NIT. It is also well settled that the bidder cannot challenge the tender conditions after it has participated in the tender. Whether DTIDC was required to give any notice before debarring the petitioner from further contracts or blacklisting the petitioner? - HELD THAT:- On this question, the law is well settled. In M/s Erusian Equipment [1974 (11) TMI 89 - SUPREME COURT], the Supreme Court had authoritatively held that fundamentals of fair play require that a person should be given an opportunity to represent his case before he is blacklisted. Indisputably, blacklisting a bidder or debarring him from participating in further tenders has serious civil consequences for his business - In the present case, the NIT provides for a bidder, who either withdraw his bid within the validity period or defaults in paying the amounts in terms of the LOA, to be visited with the consequences of forfeiture of EMD / bid security and also be debarred from participating in tenders/RFPs issued by DTIDC for a period exceeding four years (the current financial year and four succeeding financial years). Ex facie such provision of debarring a bidder is harsh and may in certain circumstances be wholly inequitable. The period of blacklisting is also significantly long. The decision of DTIDC to debar the petitioner for the financial year 2016-17 and four further financial years is set aside. DTIDC is at liberty to blacklist and debar the petitioner from participating in future tenders; however, it would be necessary for DTIDC to issue a notice indicating its intention to impose such punishment and take a final decision to do so after considering the petitioner‟s response, if any, and following the principles of natural justice. Petition disposed off.
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