The interpretation of contractual clauses governing bid validity and EMD forfeiture determines the entitlement to a refund.

JUDGMENT :

S.V. GANGAPURWALA, J.

1. Respondent No.1 published an advertisement on or about 31st October 2021 inviting the applications for lease of plots for residential-cum-commercial use for Sector-11, Khargar, Navi Mumbai. The Petitioner herein, on 23rd November 2021 submitted its offer for Plot Nos.103, 108 and 109. The Petitioner deposited the amount of EMD as required. On 25th November 2021 the bids were opened. The Petitioner’s bid was highest. The Petitioner, on 14th March 2022 issued a letter asking refund of the EMD amount on the ground that the validity of the bid period had expired. The Petitioner referred to Clause 5 and 25 of Part-A of the brochure/booklet. On or about 27th April 2022, a letter was issued by Respondent No.1 allotting Plot Nos.103, 108 and 109 to the Petitioners. The Respondents refused to refund the amount of EMD resorting to Clause 4 and 5 of the brochure/booklet.

2. It is the contention of the learned Counsel for the Petitioner that Clause 5 read with clause 25 clearly recites that the bidder can withdraw the offer after period of 90 days from the date of opening of the tender.

3. Upon opening of the tender, the Petitioner waited for 90 days and thereafter on 14th March 2022 gave a letter for withdrawal of the EMD. Same is in consonance with clause 5 read with clause 25. The Respondents are bound to refund the EMD amount.

4. The learned Counsel for the Respondents CIDCO referring to Clause 4 of the said brochure/booklet asserts that the EMD deposited by the bidder shall be forfeited by the CIDCO if the bidder decides to withdraw at any time after the opening of bid or refused or otherwise fails to accept the allotment or after being allotted the plot, commits a breach of any of the relevant terms and conditions under which the residential plot is offered. It is further submitted that the Petitioner is not entitled to withdraw the EMD only on the ground that the 90 days from the date of bid has lapsed. The same would not be in consonance with clause 4 read with Clause 25 of the brochure/booklet.

5. We have considered the submissions canvassed by the learned Advocate for the parties. Before we advert to the arguments of the respective learned Advocates, it would be proper to reproduce the clause 4, 5 and 25 of the brochure/booklet.

“4) The EMD deposited by bidder shall be forfeited by CIDCO, if the bidder decides to withdraw at any time after the opening of bid or refused or otherwise fails to accept the allotment or after being allotted the Plot, commits a breach of any of the relevant terms and conditions under which the Residential Plot is offered.

5) The Bid once made shall remain valid for acceptance by the Corporation for period of 90 days from the last date of receipt of the Bid and it cannot be revoked or varied by the bidder. No charge back cases shall be entertained/considered for any reason. The EMD will be refunded to unsuccessful bidders without any interest only after the completion of e-auction activity. EMD refund request made before completion of e-Auction will not be considered. The EMD will not be adjusted against any other scheme.

25) Validity of offer:

The Bidder shall keep the offer valid for acceptance by the Corporation for a period of 3 months from the date of receipt of offer by Corporation. The Bidder shall not withdraw the offer within a period of 3 months. If withdrawn, then the EMD amount paid shall be forfeited.”

6. Thus, clauses referred to above are part of the important terms and conditions incorporated in the booklet.

7. It is a matter of fact that on 25th November 2021 the tenders were opened. For Plot No.103, 12 bids were received, for Plot No.108, 18 bids were received and for Plot No.109, 14 bids are received. In all six bids, the Petitioner was highest.

8. The factual matrix narrated above is not disputed. The bids were filled in on 23rd November 2021. The bids were opened on 25th November 2021 and the results were declared by CIDCO on the same date. The petitioner, fo