TMI Blog2019 (11) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these appeals were clubbed, heard together and are accordingly disposed of by this common judgment. For the purpose of narration of facts, the case as in Civil Appeal arising out of SLP(C) No. 17627/2019, titled Odisha Forest Development Corporation Ltd. v. M/s. Anupam Traders and Anr. is taken note, which reads as hereunder. 3. The Appellant OFDC Ltd. issued an e-tender notification dated 22.11.2016 inviting offers online from intending purchasers for advance sale of phal Kendu leaf (KL) of 2017 crop as per the 'lots' indicated in the notification. The private Respondent had responded to the notification and made its offer. The bid was opened on 07.12.2016. The private Respondent being the successful bidder was required to execute an agreement and deposit the provisional security deposit of Rs. 5,00,000/- (Rupees Five Lakh). The private Respondent herein executed an agreement dated 20.01.2017. In terms of the agreement, on the actual quantity of leaves collected, the additional security deposit covering 25% of the purchase price of the lot was to be deposited before 31.05.2017. The private Respondent in the instant case was therefore required to deposit the differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. The High Court while disposing of the writ petition as withdrawn, despite objection put forth by the Appellant herein directed refund of the deposit which was made pursuant to its interim order dated 08.09.2017. The Appellant herein is, therefore, aggrieved by the order dated 30.04.2019 only to the extent whereby the High Court has directed refund of the amount available with the Appellant. 6. The facts in the connected appeals is to the same effect except the variation in the 'lot' number, quantity of Kendu leaves which was purchased by each of the private Respondents therein and the number of the writ petition filed before the High Court. The names of the different tenderers in the individual writ petitions that were filed and the quantum of amount ordered to be deposited by the High Court will be detailed in later part of this judgment. However, in all the cases the writ petitions have been withdrawn and the refund of the deposit ordered is directed to be refunded. In that view, the basic contention which is common, on consideration would answer all the appeals herein. 7. In that backdrop we have heard Mr. S.K. Padhi, learned senior advocate for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior advocate that though the High Court has not specifically indicated deposit to be made as the additional security deposit, the extent of deposit ordered in each of the cases makes it clear that it is relatable to the extent of the additional security amount which was to be deposited. In that light, he contends that when the writ petition was not pressed, the termination of the agreement would remain valid and in such circumstance since the Clause contained in the agreement permits the forfeiture of the preliminary security deposit, the direction to refund the same was not justified. On the other hand, the High Court ought to have allowed retention of the said amount and the liberty to recover additional amount, if any, should have been left open. Hence, he contends that the direction issued by the High Court to refund the amount is not justified. 11. The learned advocate for the Respondent would also refer to the very same clauses as contained in the agreement. He contends that the private Respondents herein were before the High Court seeking to exercise their right by assailing the order of termination so as to complete the transaction. With reference to the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal collection of leaves, the purchaser has to pay the differential amount up to the extent of 25% of Purchase price of the lot towards final Security deposit within 31.5.2017, failing which it will be considered as violation of purchaser's agreement and the provisional security deposit will be forfeited. (iii) The Security Deposit can be adjusted either wholly or in part, as the case may be, by the Director (C)/Managing Director, OFDC Ltd. towards any amount recoverable from the purchaser, including the purchase price under provisions of the Acts, Rules Notification of Govt., Purchaser's agreement and the terms and conditions of the sale notice and all such deductions shall have to be made good by the purchaser by depositing an equal amount within 15 days of issue of the notice to that effect. (iv) If the dues to be recovered from the purchaser exceed the amount of security deposit, the amount in excess shall unless made good to the Corporation within 15 days from the date of issue of the notice to that effect, be recoverable by way of initiating legal proceedings or through Orissa Public Demand Recovery Act 1962 (Orissa Act-I of 1963). 13. Similarly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser on such amount. In the event of cancellation of purchaser's agreement the loss to be recovered from 1st purchaser will be computed as follows: Total expected receipts including all taxes in concerned sale (+) expenditure on storage, supervision etc. up to disposal (-) receipts including taxes from subsequent sale. (ii) Recover any amount of loss still remaining due through Legal proceedings. (iii) Retain the full amount, if on such resale, higher amount is received than is due in respect of the lot and the purchaser shall have not right or claim there to. e. Recover all cost and expenses incurred for recovering loss. f. Recover all penalties imposed and compensation assessed not yet paid. In addition to the same, it is noticed that in the communication dated 02.08.2017 (Annexure P/8) while issuing the notice calling upon to pay the additional security deposit, the Appellant has indicated that if the same is not paid the provisional security deposit will be forfeited and the 'lot' will be sold in the ensuing sale. That apart, in the order dated 21.08.2017 whereby the agreement was terminated, it was intimated that the provisional securit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the private Respondents had succeeded in such proceedings, only in such event the said amount could have been considered as a belated payment towards additional security deposit and in any event, the consideration in that regard would be in terms of the directions that would have been issued by the High Court. Though that be the position and presently since the writ petition was withdrawn unconditionally, the question is as to whether the Respondents were entitled to refund of the amount as a matter of right when all future action for disposal of the subject Kendu leaves was at the ....... 'cost and risk' of the private Respondents as per Clause 13 of the agreement which is extracted supra. Hence even if the said amount is not considered as the additional security amount in its true spirit as per the agreement and the right of forfeiture at this stage is not accepted in its technical sense in favour of the Appellant, the right of the Appellant to recover the loss suffered in terms of the agreement cannot be ignored. 16. In the above backdrop, before we proceed any further, the intent of such conditional interim orders passed by the Courts will have to be gathered. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings in as much as, not only the interim prayer but the very writ petition will be entertained in the discretionary jurisdiction unlike the statutory appeal Under Section 96 read with Order 41 of Code of Civil Procedure. In such circumstance, though it is not necessary that a condition is to be imposed in every case for grant of interim order, if the Court in a given case imposes the condition, the same is to be treated as being with a purpose and not as an empty formality. 17. In that regard, it is to be noticed that in the instant case in a circumstance where the private Respondent had filed the writ petition, even though the High court had permitted the process of re-tender to progress, the finalization thereof had been stayed. If that be the position, the Appellant herein was not in a position to immediately bring the Kendu leaves for re-auction by receiving the amount from the subsequent purchaser and the same is likely to have dissuaded purchasers to offer the best price due to uncertainty looming large. Whether all these and any other factor has caused the loss to the Appellant and the public exchequer is a matter to be determined based on materials and evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage the said amount of deposit as ordered by the High Court cannot be considered as additional security deposit nor the actual determination of the loss suffered, when in a circumstance the action of the Appellant to re-tender was caused to be deferred, through a proceedings initiated at the instance of the private Respondent, the condition to deposit the amount should have been considered by the High Court in the background of its intent to protect the interest of Appellant. In that circumstance, 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. 20. As noticed above, the Appellant in any event would have the right to determine the loss suffered and recover the same in accordance with law as the process to re-tender, was at the '......cost and risk' of the private Respondent as stated in the notice of termination. In that circumstance, when it is prima-facie indicated that due to the delay caused at the instance of the private Respondents the value of the Kendu leaves had reduced, thereby causing loss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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