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TMI Blog2009 (2) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... t acceptable because earnest money was deposited on the understanding of the petitioners that the offer had been accepted. All that was left to be done was for the petitioners to put in the balance money, obtain the delivery order and remove the goods - 122 of 2009 - - - Dated:- 25-2-2009 - Justice Sanjib Banerjee Mr. Bhaskar Sen, Sr. Adv., Mr. Samit Talukdar, Adv., Mr. Debjyoti Manna, Adv., for the Petitioners. Mr. Tilok Kumar Bose, Adv., Mr. S.K. Mitra, Adv. for the Respondents. SANJIB BANERJEE, J. : - The writ petitioners seek to resile from an offer on the ground that there is no formal acceptance thereof by the respondents and that it is open to the petitioners to seek refund of the earnest deposit. The customs auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(xvii) If the full amount is paid, a delivery order will be issued to the bidder to receive the goods. However, the delivery of goods will be subject to fulfillment of any regulations under Customs Act or any other act in force like Plant Quarantine, Port Health Officer, etc. and he should take delivery within the stipulated time. "(xviii) In case a bidder fails to pay EMD after his bid has been accepted, he will be black-listed and the deposit amount of Rs.4900/- will be forfeited by the Department. He will be re-registered only if he compensates the Department for the loss suffered by the Department. In case the goods are sold subsequently at a lower price, the registration will be considered on payment of the differential between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval of the bid. The petitioners rely on the following two clauses of the first page of the e-auction notice: "2. The successful bidders should pay the EMD @ 10% of the bid value within 7 days after declaration of results. "3. The bidder shall pay the balance of the bid amount between 10.00 Hrs and 18.00 Hrs on working days as per the chart given below: f. Rs.1 Crore and above - within 45 days from the date of confirmation/approval." The petitioners insist that only the declaration of the first petitioner, or its authorised agent, as the highest bidder was made but the liability to make payment of the balance amount after depositing the earnest money would arise only after the receipt of a communication of confirmation/ approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the petitioners' contemporaneous understanding of the position as would be evident from the petitioners' acknowledgement of the letter of acceptance by their communication of October 3, 2008. These two writings need to be seen: Communication dated September 26, 2008 "Sub: Acceptance of your bid offered in e-auction No. 04/08-09 Conducted on 22.09.2008 reg. This is to inform you that the following bid offered by has/have been accepted by the department:- Sl. No. 1 Lot No. 1045 Goods: Wheel Sets Bid Offered: Rs.6,75,00,000/- You are, therefore, required to pay the EMD (10% of the bid amount) within 7 days after declaration of the result and remaining amount within 45 days from the date of confirmation/approval. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the customs authorities to the successful bidder before the obligation of the bidder to honour its commitment could arise or the bidder could be bound by his offer. The subsequent clauses of the auction process that have been set out above refer to bidders being communicated by e-mail as well as by post of the acceptance of their bids. But in the subsequent clauses there is no reference to any further communication of confirmation or approval of the bid. Clause (xv) provides for the issuance of a letter indicating acceptance of the bid and mandates the accepted bidder to pay 10 per cent by way of earnest or the full bid amount according to the bidder's preference. Clause (xvi) provides that delivery of the goods would be made only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed agent acknowledged receipt of the communication of acceptance. The earnest money was deposited on the understanding of the petitioners that the offer had been accepted. All that was left to be done was for the petitioners to put in the balance money, obtain the delivery order and remove the goods. There is little scope to perceive that the petitioners were unaware of their obligation. There is hardly any room for grievance. Though the respondents say that they have neither called upon the second highest bidder to accept the goods at the price offered by such bidder nor taken any steps to call a fresh auction, the petitioners are undeserving of even a liberty being granted to seek extension of the time to make the balance payment and re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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