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Judgment
A.V. Ramakrishna Pillai, J.—The petitioner, a partnership concern, alleges that it is running IRCTC Hotel at Ernakulam South, North and Shornur Railway Stations. A notification was issued by the 1st respondent corporation inviting tenders for establishing stalls at Trichur Railway Station. The petitioner alleges that in the notification, in respect of one stall, the upset price was fixed as Rupees two lakhs and in respect of the other stalls, the upset price was fixed as Rupees one lakh only. According to the petitioner, the higher amount was fixed taking into consideration the ideal location of the spot for establishing the stall. The petitioner alleges that in the notification, though it was stated that the location would be fixed before finalization of the bid, the petitioner, which is also a business establishment, with the hope that an ideal and suitable location would be obtained, participated in the bid. The tender submitted by the petitioner was accepted as the highest one. For participating in the bid, the petitioner remitted earnest money deposit of Rupees one lakh. The petitioner points out that it was found that ideal locations in the station were given to bidders, whose upset price was Rupees one lakh; it is alleged. Therefore, according to the petitioner, there was no point in further proceeding with the proposal. The petitioner was asked by Ext. P1 letter dated 25.08.2008 to remit annual licence fee of Rs. 7,55,185/- and to execute agreement with IRCTC on or before 22.09.2008. In the said letter, it was specifically stated that the agreement should contain a clause accepting the offer of IRCTC. On receipt of Ext. P1, the petitioner intimated the respondent corporation vide Ext. P2 letter that he is not proceeding with the matter further and he had participated in the auction due to wrong representation and as ideal spots were given to other persons, the amount of Rupees one lakh deposited by him by way of earnest money deposit should be refunded to him. Thereafter, the petitioner was issued with Ext. P3 letter dated 05.11.2008, i.e., after the petitioner having rescinded the contract, stating that the site should be taken over by remitting the required licence fee and security deposit; it is alleged. According to the petitioner, in view of the fact that the petitioner did not want to obtain the right and as there was breach of contract and further, there was no question of any loss to the 1st respondent corporation in inviting the tender and on the other hand, the petitioner was at losers end, the earnest money deposit made by him is liable to be refunded; and the respondents have no legal right to forfeit the same. It is with this background, the petitioner has come up before this Court.
In the counter affidavit filed by the respondents, they have contended as follows;
"Ext. R1-A general tender notification dated 22.04.2008 was published by IRCTC calling for tenders for granting licence to conduct catering stalls at different stations in Thiruvananthapuram, Palakkad and Salem Divisions of the Southern Railway. Serial numbers 36 to 43 in it contain 8 stalls in the Thrissur Railway Station distributed in Platform Nos. 1 and 2/3. Ext. R1-B is the details regarding the said 8 stalls. It can be seen from Exts. R1-A and R1B that out of the 8 stalls, 3 are in Platform No. 1 and the rest are in Platform No. 2/3. The minimum licence fee to be quoted as also the earnest money to be deposited for participating in the tender is specifically given in Exts. R1-A and R1-B. It can be seen that the minimum licence fee fixed for the 3 stalls in Platform No. 1 is at Rs. 1,50,000/- (Stall No. TVC/087), Rs. 1,75,000/- (Stall No. TVC/088) and Rs. 2,00,000/- (Stall No. TVC/089). At the same time, the minimum licence fee for all the stalls in Platform No. 2/3 is at the uniform rate of Rs. 1,50,000/- per stall. The earnest money deposit payable is at Rs. 1,00,000/- for each of 8 stalls. In any case, the quantum of minimum licence fee and EMD are irrelevant at this stage so far as EMD at the same rate has been paid by all the tenderers before participating in the tender; and the amount tendered for all the 8 stalls is much above the minimum licence fee fixed as above. It can also be seen from Exts. R1-A & R1-B that the locations of the proposed stalls have been specified in the case of 6 out of the 8 stalls. At the same time, as against 2 stalls in Platform No. 1, namely, TCV/088 and TVC/089, the location was not specified and in Ext. R1-A, it was specifically indicated that the location "is to be notified later". According to the respondents, in fact, all these aspects have been specified in the tender documents signed by the petitioner also. They have produced Ext. R1-C, which is the copy of the relevant portion of the tender document in respect of the catering stall in question, which bears the signature of the petitioner also. In fact, the petitioner has quoted Rs. 7,55,185/- as licence fee for Stall No. TVC/089 tendered by him. At the same time, Stall No. TCV/087 specified in Exts. R1-A, R1-B & R1-C has been tendered for a licence fee of Rs. 8,10,000/- by another licensee and it has been awarded to him. He has already started functioning also. The third Stall, TVC/088, in Platform No. 1, which was similarly tendered just like the stall tendered by the petitioner has also been awarded to the tenderer and he has taken charge of the site. The location of the said stall is far away from the Station building than the Stall in question tendered and allotted to the petitioner. According to them, facts being so, it is not clear as to what the petitioner means by ''notification of upset price'', ''ideal location'' etc. There are no such terms used in the tender documents. Apart from the details of the stall as contained in Exts. R1-A and R1-C, there is no other understanding or agreement regarding identification of stalls, location etc. All the successful bidders, who participated in the tender as per Ext. R1-A, were given Letters Of Award of licence dated 26.08.2008. Ext. R1-D is the LOA given to the petitioner in respect of the stall in question. According to them, in fact, the petitioner has also tendered for a catering stall No. TVC/094 in Platform No. 2/3 for Rs. 6,03,000/-. Ext. R1-E is the letter of award of licence (LOA) dated 26.08.2008, which is similar to Ext. R1-D in respect of the said stall also. In fact, he has accepted the said award duly remitting the licence fee and security deposit; and he has already started the operation after entering into formal agreement as required in Ext. R1-E. However, he has committed default in respect of the stall in question in Platform No. 1 by making untenable reasons and excuses; it is contended. The hollowness of the excuses and double stand conveniently taken by the petitioner for committing breach of tender conditions, will be evident from what is stated above; according to them."
Arguments have been heard.
The case of the petitioner is that there is no concluded contract between the petitioner and IRCTC. According to the petitioner, the notification issued did not bind the petitioner since the submission of the tender and its acceptance being subject to further conditions; and as further conditions were not satisfied, there was no concluded contract. It was also pointed out that only such amount as is necessary to meet any loss could be adjusted and that too, could be done only through a proper adjudication. However, it is crucial to note that in Clause No. 7 of Ext. R1-C, on such breach of tender condition, the tenderer would forfeit and lose the earnest money deposit. The definite case of the respondents is that due to breach of tender conditions by the petitioner, IRCTC has incurred heavy loss and damages. According to them, for floating another tender, fresh notification has to be issued and the whole tender process would take at least a period of more than 6 months. The loss of licence fee in respect of the said period itself would come to about Rs. 4 lakhs at the rate of licence fee quoted by the petitioner.
It is relevant to note that the petitioner has participated in the tender process with eyes open and after knowing about all the terms and conditions in the tender including the term regarding the location of the catering stall. It is also relevant to note that after the tender was submitted by him, he has never made any enquiries about the location of the stall and he has not made any objection regarding the location of other stalls in Platform No. 1. In this connection, it is crucial to note that out the two other stalls in Platform No. 1, the location of Stall No. TVC/089 is already satisfied in Ext. R1-A. So, at the relevant time, the petitioner was well aware that only TVC/088 & TVC/089 in Platform No. 1 were available for allotment. The very fact that he had participated in the tender process knowing that these were the only stalls available, would indicate that he was prepared to accept one among them in case of finalization.
The learned counsel for the respondents would point out that Stall No. TVC/089 was allotted to the petitioner nearer to the station building than the other stall, i.e., TVC/088 as indicated in the counter affidavit.
It is not a case, where the contract was incapable of being performed due to uncertainty. The terms regarding the identification of the stall were capable of being made certain. It is true that there was some delay on the part of the respondent in pointing out the stall. But, that does not mean that there was no concluded contract at all. There is no justifiable reason for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The relationship between the petitioner and the IRCTC is only contractual; and even if there is breach of contract, the petitioner could have sought his remedy elsewhere.
Therefore, the writ petition fails; and accordingly, it is dismissed.