Mahadev Malls Pvt. Ltd. vs The Sindhu Resettlement Corporation Limited

Rajesh H. Shukla, J.—The present Appeal from Order has been filed by the appellant-original plaintiff being aggrieved with the impugned order passed below Exh.5 in Special Civil Suit No. 30/2010 by the Principal Sr. Civil Judge, Gandhidham-Kutch dated 2 0th December, 2011 refusing injunction on the ground stated in the memo of Appeal from Order inter alia that the trial court has erred in holding that on the basis of the bid document, no rights are created in the appellant-plaintiff and the contract between the parties is not complete. It is also contended that the Court below has committed an error in interpreting the terms and conditions of the bid document and has failed to appreciate that the developer had exclusive right of the ownership of the construction/premises on the plot that may be constructed on the land/plot. It is also contended that the dispute regarding the variance from the terms and conditions of the tender document and the development agreement was subsequent to acceptance of the offer of the appellant-plaintiff. Therefore, the impugned order is erroneous and the present Appeal from Order may be allowed. Learned counsel, Shri Mehul Sharad Shah for the appellant referred to the paper book produced with the terms and conditions of the tender agreement or the bid document and the impugned order. He submitted that there is variance in the terms and condition of the bid document and development. He has specifically refers to the documents. Therefore, the impugned order is erroneous and has failed to consider the criteria for the grant of injunction and refused the injunction.

Learned counsel, Shri D.C. Dave appearing with learned counsel, Shri J.M. Patel for the respondent emphasized that there was no concluded contract. He pointedly referred to the document/letter dated 14.07.2010 and submitted that as stated by the appellant-plaintiff, it is evident that it has been stated that the terms and conditions are not acceptable as there is variance and wanted to have a joint meeting with the bidders, meaning thereby, there was a suggestion for some discussion with regard to the action.

In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference or not and whether the present Appeal from Order can be entertained or not.

As could be seen from letter dated 31.07.2010 itself that it is very clear that the appellant had insisted for proceeding further for entering into contract as per the terms and conditions of the bid document For the development agreement, which was never came into existence, the amount was required to be deposited and pay order has been returned. Therefore in light of this detailed discussion in the impugned order with regard to the agreement that no concluded contract was entered into between the parties, it cannot be said to be erroneous. Further the communication dated 31.07.2010 was addressed communicating about the payment of upfront fees with the pay order. Before that, by communication dated 14.07.2010, it was specifically suggested that there is variance in the terms and conditions of the bid document and the development agreement, therefore, it is not acceptable. Therefore, there was some dispute for which the appellant plaintiff suggested meeting, meaning thereby, the parties were not at ad diem and, therefore, the respondent had returned the pay order. In other words merely because the bid was accepted, it was not in pursuance to the contract as discussed hereinabove. Further, it is evident that the appellant has suggested for the meeting for the negotiation or clarification, meaning thereby, there were differences, which was required to be sorted out before the agreement could be entered into.

A useful reference can be made to the judgment of the Hon''ble Apex Court in case of Dresser Rand S.A. Vs. BINDAL Agro Chem Ltd. and K.G. Khosla Compressors Ltd., , wherein it has been specifically observed that:- The tender document or the invitation to bid containing the ''instructions to bidders'' and the ''general conditions of purchase'', by itself, is neither an agreement nor a contract. The instructions to bidders informed the intending bidders how the bid should be made and laid down the procedure for consideration and acceptance of the bid. The second part of the invitation to bid consists of the ''general conditions of purchase'', that is, the conditions subject to which the purchase order will be placed or offer will be accepted. The ''general conditions of purchase'' were made available as a part of the invitation to bid, so as to enable the prospective suppliers to ascertain their obligations and formulate their offers suitably.

It is in these circumstances, the impugned order passed by the Court below refusing in junction for want of prima facie case cannot be said to be erroneous much less perverse and it does not call for any interference. Therefore, the present Appeal from Order with Civil Application deserves to be dismissed and accordingly stands dismissed.