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2019 (11) TMI 1788 - SC - Indian LawsSeeking extension of time to pay the security amount - whether in view of the Clause contained in 9(iv) of the tender notification the Appellant should be driven to initiate the legal proceedings or for public demand recovery after refunding the amount which is deposited, as contended by the learned Advocate for the private Respondents despite taking note of the intent of such deposit? HELD THAT:- It is no doubt true, dehors the writ proceedings initiated by the private Respondents and in the absence of such deposit, option in any event was open to the Appellant to make the recovery through such proceedings. It is noticed that apart from the right available to recover the amount by forfeiting the additional security deposit, the Appellant had also clearly indicated that the subsequent sale would be made at the 'cost and risk' of the private Respondents herein which would mean that the difference of the cost between the first and second auction and the resultant loss to the Appellant if attributable to the private Respondents, is recoverable from the private Respondents. However, it is no doubt true that such recovery is to be made after quantifying the same by following due process of law - when the contention of loss being caused was put forth the amount ought to have been allowed to be retained till the procedure as contemplated in law is followed and a decision is taken though not directly as forfeiture. The direction to refund the amount unconditionally is not found justified and is accordingly set aside. The Appellant shall issue appropriate notice(s) to the private Respondents indicating details about the manner in which they computed the loss after conducting the second auction at the 'cost and risk' of the private Respondent. On receiving response to the same, a detailed consideration be made and a speaking order be passed in that regard. The Respondents are at liberty to challenge the speaking order to be passed by the Appellant and the process being pursuant to a contractual matter the private Respondent if aggrieved are entitled to avail their legal remedy before the appropriate forum, in accordance with law and the entitlement of the amount will be decided therein. As per the speaking order passed by the Appellant, if it is found that the loss suffered is within the amount available in deposit, appropriate adjustment should be made and the balance if any, be refunded. The adjustment of the amount by the Appellant if made after passing the speaking order, the same shall be without prejudice to the contention of both parties and the same shall be subject to the outcome of the proceedings in the matters where the Respondents may challenge the speaking order in accordance with law. Appeal allowed in part.
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