A party to a contract cannot accept the benefits of a rescission of the contract and then seek to enforce the contract.

DWARKA PRASAD, J.

( 1 ) THE petitioner is a contractor and used to purchase scrap materials sold at railway auctions. The Controller of Stores, Northern Railway, New Delhi, published a public notice on Jan. 18, 1967 notifying the sale by public auction of scrap steel rails at Bilara in Jodhpur Division of the Northern Railway, The highest bidder was required to deposit 25% of the sale price on the fall of hammer and to pay the remaining amount to the Chief Cashier and Pay Master, Northern Railway or Divisional Cashier and Pay Master concerned, within seven days from the date of final acceptance of the bid. The petitioner was the highest bidder in respect of one lot of scrap steel rails sold by auction held at Bilara on Jan. 31, 1967, sold for Rs. 60,680/- and he deposited 25% earnest money then and there, on the closure of the auction and also deposited the balance 75% of the sale price within the prescribed period.

( 2 ) HOWEVER, on Apr. 1, 1967 the Divisional Superintendent, Northern Railway, Jodhpur Division, informed the petitioner and other auction-purchasers that the highest bids given by them for the sale of scrap steel rails were not accepted by the Controller of Stores, Northern Railway, New Delhi and that he had ordered the refund of the earnest money as also the balance of the sale price to the respective auction-purchasers. The petitioner approached the higher authorities of the Railway at the Northern Railway Headquarters, Baroda House, New Delhi and is said to have been orally assured that his bid would meet the same fate as would be decided by their Lordships of the Delhi High Court in the Writ Petitions filed by M/s. Chainsukhdass Sohanlal Jain and Abdul Sakoor, in respect of the highest bids given by the aforesaid persons for other lots. The petitioner approached the General Manager, Northern Railway by means of a representation dated Apr. 3, 1967 and to the Chairman of the Railway Board by a representation dated June 10, 1967, but nothing appears to have turned out of all these efforts. On Dec. 21/22, 1967 the Track Supply Officer, Headquarters Office, Northern Railway, New Delhi sent pay orders in respect of the refund of the earnest money and the remaining sale price, deposited by seven auction-purchasers including the petitioner. It appears that the petitioner accepted the refund pay order and did not take any further steps in the matter.

( 3 ) THE writ petition filed by M/s. Chainsukhdass Sohanlal was allowed by a learned single Judge of Delhi High Court on Jan. 31, 1972, and the order of the Controller of Stores, Northern Railway, New Delhi cancelling the auction sale was quashed. The petitioner thereafter approached the Controller of Stores by his representation dated Aug. 14, 1973 and also served a notice of demand for justice but as the same were ignored the present writ petition was filed in this Court on Dec. 13, 1973. It has been urged by learned counsel for the petitioner that the cancellation of the auction sale by the Chief Controller of Stores was without any basis and the same should be set aside.

( 4 ) ON behalf of the Union of India some preliminary objections were raised by its counsel Shri A. K. Mathur. It was argued in the first instance that the writ petition has been filed after inordinate delay which has not been satisfactorily explained by the petitioner. It was then submitted that the acceptance by the petitioner of the refund pay order for the entire money deposited by him towards fulfilment of the contract amounted to acquiescence on his part in the revocation of the contract by the railway authorities. It was also urged by the learned counsel for the Union that the petitioner had wilfully and knowingly suppressed the important fact about his having obtained refund of the purchase price as in the writ petition no mention has at all been made of the fact that the petitioner had accepted refund pay order in respect of the entire sale price, when the same was offered to hi