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TMI Blog2019 (11) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Aditya Kr.Choudhary,Adv., Mr. Aman Singh,Adv., Mr. G. Vaan Singh,Adv., Mr. Vaibhav Pd.Deo,Adv., Mr. Ajit P.,Adv., Mr. Pravesh Thakur,dav., Mr. Rajesh Singh Chauhan, AOR A.S. Bopanna, J. 1. Leave granted. 2. The Appellants in eleven of these appeals are the Odisha Forest Development Corporation Ltd. ("OFDC Ltd." for short) and the State of Odisha is the Appellant in two other appeals. The appeals filed by the State of Odisha relate to the same orders in respect of the same private Respondents who were the writ Petitioners regarding whom the Odisha Forest Development Corporation Ltd. has also filed the appeal. Further, though separate orders passed by the High Court in different writ petitions relating to various Petitioners are assailed in all these appeals, the issue involved is the same. Hence all these appeals were clubbed, heard together and are accordingly disposed of by this common judgment. For the purpose of narration of facts, the case as in Civil Appeal arising out of SLP(C) No. 17627/2019, titled Odisha Forest Development Corporation Ltd. v. M/s. Anupam Traders and Anr. is taken note, which reads as hereunder. 3. The Appellant OFDC Ltd. issued an e-tender notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nty Lakhs only) within one week with the Appellant herein. The said order was passed on 08.09.2017 wherein it was further directed that the said amount would be kept in a separate deposit by the Appellant. The application filed by the Appellant herein seeking vacation of the interim order was considered and at that stage since the vacation of the stay was not opposed by the private Respondent herein, it was vacated on 28.03.2018 due to which the subsequent sale was completed on 24.04.2018. The private Respondent herein thereafter sought leave to withdraw the writ petition in W.P.(C) No. 18718/2017 thereby giving up the challenge to the cancellation of the auction process wherein the private Respondent had taken part and also the challenge to the subsequent auction which had been conducted by the Appellant. The High Court while disposing of the writ petition as withdrawn, despite objection put forth by the Appellant herein directed refund of the deposit which was made pursuant to its interim order dated 08.09.2017. The Appellant herein is, therefore, aggrieved by the order dated 30.04.2019 only to the extent whereby the High Court has directed refund of the amount available with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to the extent of 25% of the purchase price was to be paid within 31.05.2017. It is contended that if the said amount was not paid, the security amount already paid was to be forfeited and if any further recoveries are to be made, the Appellant had the liberty to do so. 10. In that light, it is contended that in the instant facts only the initial deposit of Rs. 5,00,000/- (Rupees Five Lakhs only) was made, apart from the EMD. The default was committed relating to payment of 25% of the additional security amount which was to be made within the time frame. Since, the extension of time as requested was rejected and the amount was not deposited, the Appellant was left with no other alternative but to terminate the agreement and forfeit the security deposit. It is the contention of the learned senior advocate that though the High Court has not specifically indicated deposit to be made as the additional security deposit, the extent of deposit ordered in each of the cases makes it clear that it is relatable to the extent of the additional security amount which was to be deposited. In that light, he contends that when the writ petition was not pressed, the termination of the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r notification on which reliance was placed by both sides, which reads as hereunder: Security Deposit (i) The successful purchaser shall have to pay provisional Security Deposit @ Rs. 5.00 lakhs (Rupees Five Lakh) per lot(s) within 21 [Twenty-one] days of issue of ratification order. If the provisional security deposit is not paid at Corporate Office within 21 days from the date of issue of ratification order, the sale of the lot(s) will be cancelled and the EMD/part S.D. will be forfeited to OFDC. However in exceptional circumstances, the period of 21 days may be extended for a further period of 7 (seven) days by the Director (C)/Managing Director of OFDC Ltd. by depositing of non-refundable fees of Rs. 2000/- (Rupees two thousand only) by the purchaser. (ii) After final collection of leaves, the purchaser has to pay the differential amount up to the extent of 25% of Purchase price of the lot towards final Security deposit within 31.5.2017, failing which it will be considered as violation of purchaser's agreement and the provisional security deposit will be forfeited. (iii) The Security Deposit can be adjusted either wholly or in part, as the case may be, by the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporation under condition 13 (iii) (b) and recover the loss. The same shall also be recoverable by encashment of the Bank guarantee, if any such guarantee has been furnished by the purchaser under clause-7, as also from sale of such leaves which has been forfeited in favour of the Corporation under condition 13(iii)(b). Provided if the lot is not resold in the first sale after issue of order of termination of agreement, loss will be recovered from the purchaser treating the value of the lot as zero. However, if the lot is sold in subsequent sale, the amount of sale price recovered as such shall be adjustable against balance amount of loss or be refunded to the purchaser as the case may be. However no interest will be payable to the purchaser on such amount. In the event of cancellation of purchaser's agreement the loss to be recovered from 1st purchaser will be computed as follows: Total expected receipts including all taxes in concerned sale (+) expenditure on storage, supervision etc. up to disposal (-) receipts including taxes from subsequent sale. (ii) Recover any amount of loss still remaining due through Legal proceedings. (iii) Retain the full amount, if on su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, only in such event the said amount could have been considered as a belated payment towards additional security deposit and in any event, the consideration in that regard would be in terms of the directions that would have been issued by the High Court. Though that be the position and presently since the writ petition was withdrawn unconditionally, the question is as to whether the Respondents were entitled to refund of the amount as a matter of right when all future action for disposal of the subject Kendu leaves was at the ....... 'cost and risk' of the private Respondents as per Clause 13 of the agreement which is extracted supra. Hence even if the said amount is not considered as the additional security amount in its true spirit as per the agreement and the right of forfeiture at this stage is not accepted in its technical sense in favour of the Appellant, the right of the Appellant to recover the loss suffered in terms of the agreement cannot be ignored. 16. In the above backdrop, before we proceed any further, the intent of such conditional interim orders passed by the Courts will have to be gathered. In order to aid the same it will be apposite to take note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very writ petition will be entertained in the discretionary jurisdiction unlike the statutory appeal Under Section 96 read with Order 41 of Code of Civil Procedure. In such circumstance, though it is not necessary that a condition is to be imposed in every case for grant of interim order, if the Court in a given case imposes the condition, the same is to be treated as being with a purpose and not as an empty formality. 17. In that regard, it is to be noticed that in the instant case in a circumstance where the private Respondent had filed the writ petition, even though the High court had permitted the process of re-tender to progress, the finalization thereof had been stayed. If that be the position, the Appellant herein was not in a position to immediately bring the Kendu leaves for re-auction by receiving the amount from the subsequent purchaser and the same is likely to have dissuaded purchasers to offer the best price due to uncertainty looming large. Whether all these and any other factor has caused the loss to the Appellant and the public exchequer is a matter to be determined based on materials and evidence but the fact remains that such resultant delay was at the instanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered as additional security deposit nor the actual determination of the loss suffered, when in a circumstance the action of the Appellant to re-tender was caused to be deferred, through a proceedings initiated at the instance of the private Respondent, the condition to deposit the amount should have been considered by the High Court in the background of its intent to protect the interest of Appellant. In that circumstance, when the contention of loss being caused was put forth the amount ought to have been allowed to be retained till the procedure as contemplated in law is followed and a decision is taken though not directly as forfeiture. 20. As noticed above, the Appellant in any event would have the right to determine the loss suffered and recover the same in accordance with law as the process to re-tender, was at the '......cost and risk' of the private Respondent as stated in the notice of termination. In that circumstance, when it is prima-facie indicated that due to the delay caused at the instance of the private Respondents the value of the Kendu leaves had reduced, thereby causing loss, in view of legal proceedings initiated by the private Respondents, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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