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Judgment
By this petition, the writ petitioner is seeking a writ of Mandamus, commanding the respondents to refund the earnest money amounting to Rs. 14.662/ to the writ petitioner.
I have heard Mr. Ng. Kumar Singh, learned counsel for the petitioner as well as Mr. Ashok Potshangbam. learned counsel for the respondents.
Petitioner is a registered First Class contractor of the Public Works Department, Manipur (PWD). It is stated that he has been doing many contract work both under the State PWD and CPWD.
Sometime in the year 1986, the petitioner was awarded the contract work for construction of internal roads, culverts and drainage for Regional Tsar Research Station, Imphal (SH : Nonresidential portion). A contract agreement was entered into between the petitioner and respondents bearing No. 24/EE/MCD/8687. It appears some dispute arose between the petitioner and respondents out of the aforesaid contract agreement and the said dispute is the subject matter before the Arbitrator.
Sometime in 1990, pursuant to the tender notices called by the respondent No. 1, for construction of various works, the petitioner also participated in 4 items after depositing necessary earnest money in the form of DatCall. The details of woiks for which the tender notices were issued and amount of earnest money with numbers and date of DatCall receipt submitted by the petitioner as shown as under :
Sl Name of Work Amount of DatCall
No. Ernest Money receipt No &
date with Bank
Construction of Magazine Rs. 5,532/ No. 33/370/D 69341
Building at BSP Campus Pailel, dt. 11.4.90. (Manipur
Manipur. State Co Op Bank
Ltd.
Do 2 Nos. Garrage for Rs. 2,726/ No 182942 dt. 11.4.90 (Imphal
Regional Tsar Research Urban Coop. Bank, Singjamei
Station, Imphal Branch
Do Internal road, Lamphelpat Rs. 4,358/ No. 141985 dt. 11.4.90
(SH) Internal Road for N (Imphal Urban Coop. Bank,
M G Avenue).
Do Internal Road path Rs. 2046 NO. 141986 dated New drain. 11.5.1990
TOTAL: Rs. 14,662
Amount of earnest money
Petitioner''s tender were rejected and works have been allotted to another contractor and completed. Situated as such the earnest money should have been refunded to the petitioner as visualised under section 21 (6) (a) of the CPWD Manual Vol. II, reads as under :
6 (a). "Refund of Earnest Money''Earnest money given by all the contractors except the three lowest tenderers should be refunded within a week from the date of receipt of tenders. The earnest money given by the other two tenderers (except the one whose tender is accepted) should also be refunded within 15 days of the acceptance of the tender. (EInC Memo No. 0/338 dated 1.12.1954)."
The earnest money having not been refunded to the petitioner, the petitioner by its petition dated 24th April, 1992 (Annexure A/1) and another petition by its letter dated 18th May, 1992 requested the competent authority to refund the earnest money deposited by the petitioner in the form of DatCall, without any result. Hence the present petition.
Respondents have filed counter. It is admitted by the respondents that in 198687 a contract was allotted to the petitioner and some dispute arose with regard to the settlement of bills and accounts and the same is the subject matter before the Arbitrator.
It is also been admitted that in 1990 the petitioner also participated by submitting tender for contain construction works but the tender of the petitioner was not accepted and he was not the lowest tenderer and works have already been executed and completed by other contractors.
The plea of the respondents is taken in paragraph 5 of the counter. It is stated in paragraph 5 that the earnest money amounting to Rs. 14.662/could not be refunded to the petitioner because of a sum of Rs. 18.063/ is payable by the petitioner against the recovery of store materials as per agreement No. 18/SE/MCD/8081. It is further contended in paragraph 5 of the counter that clause 29 (i) and 29A of the agreement stipulate to withhold/ retain any amount recoverable from the contractor from any payment available with the Engineer Incharge. According to respondents, that in view of the above provisions of agreement, the earnest money is retained to adjust with the amount payable by the petitioner to the CPWD.
In support of its contention taken in paragraph 5 of the counter Mr. Ashok Potshangbam, learned counsel for the respondents referred to clause 29 (i) and 29A of the contract agreement. Clause 29 (i, and 29A of the agreement relates to an agreement in respect of the contract entered into between the parties. In the instant case, it is admitted by the respondents themselves that the tender of the petitioner was rejected as his tender was not the lowest. Therefore, there is no question of the award of contract and the contract agreement entered into between the petitioner and the respondents in the instant case. The very fact that clause 29 (i) and 29A of the agreement is relatable to a security deposi, under a contract goes to show that the clause of the agreement would be relevant in a case where the contract is awarded and contract agreement entered into between the parties pursuant to the award of contract. Security deposit is made by the contractor after the award of contract and not before that. The stand taken by the respondents in paragraph 5 of the counter is therefore, ill founded.
In view of what has been stated above, this petition must be allowed. Accordingly, the respondents are directed to release the earnest money deposited by she petitioner (Rs. 14.662/) within a period of one month from today. If the amount is not paid within the stipulated time, the same shall carry an interest at the rate of 16% per annum from the date of payment till the payment is made.