( 1 ) THIS Appeal From Order has been filed by the original defendants being aggrieved by the order dated 23-7-2002 passed by the learned Chamber Judge, City Civil Court, Ahmedabad in Civil Suit No. 2450 of 2002 whereby the learned Chamber Judge, while directing the defendants to deposit the instrument issued by the plaintiff and on realising the same, ordered to consider the plaintiffs tender on merits along with the other participants without considering the clause No. 4 of the tender as an obstruction against the plaintiff.

( 2 ) AT the initial stage, learned counsel, Mr. K. G. Sukhwani has appeared on caveat on behalf of the respondent. Later on, matter was admitted and Mr. Sukhwani waived service of notice on behalf of the respondent.

( 3 ) THEREAFTER, I have heard learned Senior counsel, Mr. P. M. Thakkar for the appellants and learned counsel, Mr. K. G. Sukhwani for the respondent.

( 4 ) MR. THAKKAR has mainly argued that gross error has been committed by the learned Chamber Judge in directing the appellants-original defendants to consider the tender of the respondent-original plaintiff ignoring clause No. 4 of the tender submitted by the respondent. He has drawn my attention towards clause No. 4 of the tender document which reads as under:" (4) Earnest Money : Tender form must be accompanied by an earnest Money of Rs. 7,56,000/ (Rupees Seven Lacs Fifty Six Thousand only) in form of a demand draft issued by the state Bank of India or a Scheduled Bank in favour of the Sr. Regional Manager, Food Corporation of India, Tenders not accompanies by earnest money in the form prescribed above shall be summarily rejected. "drawing my attention towards the above clause, it is contended that clause No. 4 makes it mandatory on the part of the tenderers to deposit the earnest money and failing to comply with the same would result in summary rejection of tender. He has relied upon the case of Tata Cellular Vs. Union of India, reported in AIR 1996 S. C. 32 wherein the Supreme Court has laid down the following principles:"113. The principles deducible from the above are: (1) the modern trend points to judicial restraint in administrative action. (2) the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender, or award the contract is reached by process of negotiations through several tires. more often than not such decisions are made qualitatively by experts. (5) the Government must have freedom of contract. In order words a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesday principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) quashing decisions may impose, heavy administrative burden on the administrative and lead to increased and unbudgeted expenditure. "it is further contended that in view of the above principles laid down by the Apex Court, the terms of the invitation of tender are not open to judicial scrutiny as expressly stated in the contract itself and hence, interference by the learned Judge is against the settled principle of law. It is further contended by Mr. Thakkar that variance in the clauses of the tender document would amount to interfering with the policy matters of the Corporation which, as a matter of fact, is not permissible. It is also contende