Honble RATHORE, J.–Brief facts of the case are that the respondents JVVNL invited tenders for various equipment including power distribution transformers from those qualified as per the parameters detailed in the notice inviting tenders.

(2). Pursuant to the tender notice, the petitioner submitted its bid on 26.3.2001 and also submitted a bid security by way of bank guarantee under the condition of tender bids which were opened on 27.3.2001.

(3). Vide letter dated 8.6.2001, the petitioner was asked to extend the validity of the bid. The petitioner time and again extended the validity of the bid and last extension was made upto 31.3.2002 by the petitioner vide letter dated 22.11.2001. The letter of intent dated 22.11.2001 and purchase order dated 4.12.2001 were issued to the petitioner and the petitioner was required to execute and signed the contract form and simultaneously furnish the amount of performance security. The petitioner furnished the contract form duly executed and signed the same on 18.12.2001, but failed to furnish the performance security.

(4). The controversy arise when the respondents forfeited the bid security of Rs. 13,97,100/- in terms of Clause 15, therefore, the present writ petition is filed seeking following reliefs:–

1. This Honble Court may kindly issue a declaration that the petitioner company in the facts obtaining on record is not liable to make any supplies on the basis of rates quoted in March 2001 in October 2002 and thereafter.

2. This Honble Court may kindly be pleased to issue a writ of certiorari or any other appropriate writ, order or direction of similar nature calling for the records pertaining to the supply of 3450 Nos. distribution transformers of 25 KVA and after perusal of the same this Honble Court may kindly quash and set aside the letter dated 10.10.2002.

3. This Honble Court may further kindly issue a writ of mandamus or any other appropriate writ, order or direction of similar nature forbearing the respondent Nigam from coercing the petitioner company into making supplies at a belated stage of 3450 distribution transformers contrary to the plain terms and conditions and intendment of the bidding documents for the supply of third lot of package No. RJ-WB-PSR/TR-079.

Or alternatively this Honble Court may kindly direct the respondent Nigam to place a modified order on the petitioner company in terms of clause 16.3 of the Bid Data sheet and the general principle enunciated therein in respect of the period 26.6.2001 to 22.11.2001 on the one hand and 19.12.2001 till the placing of the modified order.

(5). Learned counsel for the petitioner referred clause 16 which deals with the period of validity and more particularly Clause 16.3, which is reproduced hereunder:–

16.3 In the case of fixed price contracts, if the award is delayed by a period exceeding sixty (60) days beyond the expiry of the initial bid validity, the contract price will be increased by a factor specified in the request for extension.

(6). Learned counsel for the petitioner placed reliance on the judgment in case of Mohammed Gazi vs. State of M.P. & Ors. reported in 2000 WLC (SC) 330 wherein Honble Supreme Court has observed that whether a person can be penalised for no fault of his merely by resorting to equity clause in favour of the respondent-State particularly when such person is found to have not been benefited or the State deprived of the benefits on account of stay order issued by the Court. The Honble Supreme Court further observed that calling upon the petitioner to execute the purchase agreement as per condition of tender notice with the Conservator of Forest after depositing the balance security as shown in the letter dated 1.9.1996. Consequently, the appellant deposited a sum of Rs. 2,68,217.72/- as security amount. It was further observed that the other maxim is, lex non cogit ad impossibillia-the law does not compel a man to do which he cannot possibly perform.

(7). So far as forfeiture of security is concerned, I h

Click Here to Read the rest of this document