TMI Blog2015 (10) TMI 2690X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, the petitioners could not have sought qualification without fulfilling such requirement in the manner insisted by the Municipality. However, when we find that ample confusion was possible that too, due to the conditions prescribed by the Municipality and when we also find that the condition of depositing EMD was satisfied, though the mode of such deposit, due to peculiar facts, varied from that specified in the tender conditions, we do not find that the action of the Municipality disqualifying the petitioners was justified. We have proceeded on the basis that the petitioners were disqualified only on account of tendering of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This tender notice itself did not specify the mode of payment of these two amounts. However, separate notice inviting on-line tender contains such details in para-11 which reads as under: 11. Tender Fee and Bid Security i.e. EMD in the form of DD in favour of Botad Nagar Palika from any Nationalized/Scheduled Bank shall be valid upto 120 days. DD issued after the last date of submission of tender will not be considered as valid or accepted in any case..... 3. Petitioners deposited the tender fee of ₹ 5,000/- through DD on 09.09.2015. However, when it came to offering EMD, there were two problems. The first was that while filling up on-line form, the system would not accept the mode of payment through DD and, instead, it prompt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the tender process in question. In response to such notice, respondent No.2 Nagar Palika has appeared and filed reply. 5. Learned counsel Mr.Buch for the petitioners submitted that the petitioners had no reason to offer the EMD through FDR instead of DD, if the system had accepted such mode and if insistence of the validity of DD of 120 days was not made by the Municipality. Since it was not possible to satisfy both these conditions, namely, filling up of the on-line form and the validity of 120 days of DD, the petitioners instead enclosed FDR in the name of the Municipality. He submitted that the petitioners did not commit breach of any essential condition of the tender. If at all that was only on account of the ambiguity on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a collateral term. This legal position has been well explained in G.J.Fernandez vs. State of Karnataka Ors . , 1990(2) SCC 488. 7. Counsel also relied on a decision of the Supreme Court in case of Global Energy Ltd. And Another v. Adani Exports Ltd. and Others reported in (2005)4 SCC 435 also in support of the contention that the petitioners, who had breached the essential condition, were rightly disqualified. 8. Having heard learned counsel for the parties and having perused the materials on record, we may recall that the main tender notice itself did not provide for the manner in which the EMD would be deposited. It is, however, true that the notice inviting on-line tender did specify that such deposit would be through DD. Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, the condition of the DD having validity of 120 days also was possible of creating considerable doubt. No tenderer would have fulfilled this requirement. We are informed that other contractors, instead, tendered the EMD through DD of validity of 90 days. If, under the circumstances, the petitioners, instead of taking the liberty of furnishing DD of a validity lesser than what was insisted by the authorities, presented the same through FDR, the petitioners cannot be penalized with disqualification. In fact, the rigid approach would make all the other tenderers disqualified since they had not fulfilled the requirement of providing DD with a validity period of 120 days which, as noted, was an impossible condition to fulfill. 10. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal, was, therefore, rightly set aside by the Division Bench. ...... 11. The facts of the present case are vitally different. The petitioners never intended to participate in the tender process without payment of EMD. Only the mode of depositing such amount was the cause of some confusion. As noted above, such confusion was possible on account of the inadvertent error on the part of respondent No.2 Municipality. Bona fides of the petitioners can be judged from the fact that they did deposit the entire amount; the mode alone being not to the satisfaction of the Municipality. We do not at all dispute the authority of the Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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