Participation in a public auction on published terms and conditions precludes the bidder from later contending that the contract was unconscionable to resist enforcement of the liability arising therefrom.

1. The petitioners had obtained the privilege for sale of arrack in five arrack shops of the Poonjar range for the year 1984-85 being the highest bidders at a public auction held in that behalf. The petitioners were joint bidders and the price at which the privilege was conferred on them was for Rs. 7,00,000/- payable in ten equal monthly instalments. The requisite licences were issued to the petitioners and they carried on the trade in arrack for the entire period. The conditions of the auction clearly specified the quantity of arrack to be supplied for each of the shops. There was also a clause empowering the Assistant Excise Commissioner to allot larger quantity of arrack over and above the stipulated quantity. It is the petitioners' case that for failure of the Department to supply the requisite quantity of arrack, they had not been able to carry on the trade profitably, they hod, in fact, sustained loss, and for that reason they are not liable to pay the balance amount due as per the terms of the agreements entered into on their bids having been accepted by the department. This contention is raised for the first time in this writ petition after the contracts had been performed and the period of the contract is over.

2. According to the petitioners they have paid a sum of Rs. 5,60,000/- towards their liability for Rs. 7,00,000/- and the balance, even though due, is not payable for the failure of the department to supply the extra quantity of arrack, over and above the stipulated quantity.

3. Counsel for the petitioners relies on the decision of the Supreme Court in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (1986) 3 SCC 156 in support of the proposition that the test of reasonableness or fairness of a clause in a contract would depend on the question whether the parties to the contract bad equal bargaining power. According to the learned counsel, the State having a monopoly in regard to the manufacture and sale of liquor was in a domineering position and it cannot be said that the State and the petitioners had equal bargaining power. I do not see any force in this contention. The decision of the Supreme Court referred to above related to the case of a contract of labour where the employee had no choice except to accept the employment on the terms offered by the employer. One of the terms of the employment for termination of the services of the employee was found to be unconscionable and not enforceable against him. It was also held that under the circumstances such a term of the contract of employment issued in the form of a rule was also opposed to Art.14 of the Constitution In the present case the terms and conditions of the auction were published in advance and every bidder participating at the auction knows the terms and conditions upon which the auction is held. He should, at any rate, be presumed to know such terms and conditions under which the auction is held. One of the terms which is also incorporated in the agreement between the parties is for supply of arrack to each of the shops at the stipulated quantity. It is open to the Assistant Excise Commissioner to allot a larger quantity over and above the stipulated quantity if sufficient stock of arrack is available at the depots of the Government. As per these terms and conditions the petitioners are not entitled to get any extra quantity. They have no case that the stipulated quantity bad not been supplied. Counsel relies on the decision of a Division Bench of this Court in Issac v. Asst Excise Commissioner (1984 KLT 88) and contends that for the failure of the Department to supply extra quantity of arrack, the balance amount due as per the contracts between the petitioners and the Government is not recoverable. The terms and conditions of the agreement dealt with in that case are different from the terms and conditions of the agreements between the parties in the present case. As was noticed in Krishnan v. State of Kerala (1985 KLT 1159