IN THE COURT OF THE LD.

ADITTIONAL
DISTRICT JUDGE SAKET COURT AT NEW
DELHI.

IN THE MATTER OF:

M/S ECO Paryavaran Engineers & consultant (P) Ltd.

E-207, Industrial Area Phase VIII – B (sector-74)
Mohali (PUNJAB) – 160071
----Plaintiff
: : VERSUS : :

(1) Chairman, Delhi Development

Authority Vikas Sadan, Back side of I.N.A market,
New Delhi – 110023.

(2) The Chief Engineer (electrical),

DDA, Vasant Kunj, New Delhi – 110070.

(3) The superintending Engineer (Electrical) / EC-2,

DDA, Vasant Kunj, New Delhi – 110070.

(4) The Executive Engineer (Electrical),

Electrical Division No. IV,
Madhuban Chowk near Rohini Courts,
Rohini, Delhi – 110085
---- Defendants
PLAINT FILED UNDER SECTION 79 READ WITH ORDER
XXVII OF CPC

I) DESCRIPTION OF THE PLAINTIFF:

Plaintiff is a company duly incorporated under the

provisions of the Companies Act, 1956 having its registered
office at the address mentioned in the cause title and
carrying on the business inter alia
of...............................................................

The present Plaint has been preferred by Mr....................,

who is working as .................and is duly authorised by the
Plaintiff to file this suit. A Copy of Resolution and Authority
is marked as Appendix-A.

II) DESCRIPTION OF THE DEFENDANTS:

(1) Chairman, Delhi Development

Authority Vikas Sadan, Back side of I.N.A market,
New Delhi – 110023.

(2) The Chief Engineer (electrical),

DDA, Vasant Kunj, New Delhi – 110070.

(3) The superintending Engineer (Electrical) / EC-2,

DDA, Vasant Kunj, New Delhi – 110070.
(4) The Executive Engineer (Electrical),
Electrical Division No. IV,
Madhuban Chowk near Rohini Courts,
Rohini, Delhi – 110085

III) BRIEF FACTS OF THE CASE:

a) That a single tender for the work of Design, Supply,

Installation and Contraction including operation of 3 Nos.
Sewage Treatment Plant, (hereafter referred to as STP) at
Rohini and Narela on turnkey basis was called by the
Executive Engineer (Electrical)(Hereinafter referred as
‘Defendant No.4’) E-IV vide no. 12/EE/Elect./D-
4/DDA/2013-14. Sale of bid documents through E-
Tendering mode started on 15.02.2014 and closed on
24.02.2014. The Plaintiff participated in the opening of
bid which was opened on 28.02.2014.

b) That the bid documents of the Plaintiff were found in

order, as such, the bid of the plaintiff was included in the
comparative statement prepared by Defendant No.4. As
per the said comparative statement, bid amounts quoted
by the parties for all the three works are as under:

(i) ECO Paryavaran Engineers = Rs. 5,69,25,000-00

(ii) Fontus Water Pvt. Ltd = Rs. 5,31,43,000-00

(iii) Sophisticated Industrial Pvt. Ltd.= Rs.12,38,94,000-

00
 A bare perusal of the comparative statement was duly
checked by Assistant Accounts officer, Electrical Division,
DDA and Defendant No.4 revealed that M/S. Fontus
Water Pvt. Ltd were adjudged as 1st lowest bidder.

c) That Defendant no.4 vide his letter dated 25.04.2014

submitted the tenders to the Chief Engineer (Elect) (here
in after referred to as ‘Defendant no.2’) with the
recommendation that tender bid of M/S Fontus Waters
Pvt. Ltd amounting to Rs. 5,31,43,000/- be accepted
being the lowest.

d) That on receiving the information that the Plaintiff is not

the lowest bidder, the Plaintiff applied to the Defendant
no.4 vide its letter dated 28.04.2014, sent through Mr.
Shivam Singla by hand to return earnest money
amounting to Rs.10,13,273/-.

e) That due to some intriguing reasons, the composite

tender bid of 3 Nos. S.T.P was fragmented in three parts.
The bid of the plaintiff for one S.T.P to be installed at
Narela was clandestinely reduced to Rs. 1,06,89,000/-
while in the comparative statement amount mentioned
was Rs. 1,42,75,000/-. Letter of acceptance for one S.T.P
at Narela was issued to the Plaintiff by Defendant no.4
vide his letter dated 07.06.2014. The Plaintiff was
directed to submit Performance Guarantee to the tune of
Rs. 5,34,450/- within 15 days. It is pertinent to mention
the letter of acceptance (LOA) was issued after expiry of
validity period of tenders which was for 90 days after
opening of the bids on 28.02.14 i.e. up to 27.05.2014.

f) That in response to the aforesaid letter by Defendant

No.4, the Plaintiff vide its letter dated 16.06.2014 replied
to the Defendant No.4 and stated that no negotiations
took place between the Plaintiff and Defendant No.4 as
the Plaintiff was aware of the fact that the tender was
allotted to M/s. Fontus Water Pvt. Ltd. since they were
 the lowest bidders and requested Defendant No.4 to
amend the letter as per their quoted price.

g) That the earnest money deposit of Rs.3,10,444/- has

been forfeited due to non-acceptance of the offer made by
Defendant no.4 and non-deposit of Performance
Guarantee vide letter dated 07.06.2014 sent by the
Defendant No. 4.

h) That Gulwant Singh to whom the special power of

attorney was given by the Plaintiff vide his letter dated
14.08.2015, told the defendant No.4 to return the
Earnest Money of Rs.3,10.444/- as it was the Plaintiff’s
right to have that money back.

i) That Gulwant Singh again vide his letter dated

30.09.2015 requested Defendant No.4 to refund
Rs.3,10,444/- as it is the right of the Plaintiff to claim it
and they are also entitled to an interest of 18% on the
Earnest Money.

j) That the Defendant could not fragment the composite bid

for three Nos. S.T.Ps after opening of tender bid and
preparation of comparative statement of the tenders.
More so, after adjudging tender bid of M/S Fontus Water
Pvt. Ltd as the lowest bidder. The aforesaid conduct of
the defendant led to the change in the basic structure of
the tender which was consciously done to cause harm
and injury which falls within the ambit of section 167
I.P.C and the plaintiff is liable to face punishment for this
act.

k) That although defendant no.4 has recommended the

composite bid of M/s. Fontus Water Pvt. Ltd amounting
to Rs. 5,31,43,000/- for approval vide letter dated
25.04.14 but what made the Defendant no.4 alter his
recommendation, is best known to him.
 l) That according to CPWD Works Manual (2014) section
19.5, which reads as under:

“19.5 refund of earnest money

The earnest money given by all the tenders except the

lowest tenders should be refunded immediately after
the opening of the tenders, or latest within a week from
the date of receipt of tender.”

But the defendants did not return the earnest money to

the Plaintiff even after preparation of comparative
statement of tenders and recommending the tender rates
of M/S Fontus Water Pvt. Ltd for acceptance vide letter
dated 25.04.14 due to some intriguing reasons.
Defendant no.4 did not return the earnest money
amounting to Rs 310444/- even after a request was made
by the plaintiff vide letter dated 28.04.2014.

IV) CAUSE OF ACTION:

The cause of action for the present suit arose on 28.04.14 when
the Defendant no. 4 did not return the earnest money amounting
to Rs 3,10,444/- even after a request was made by the plaintiff
vide letter dated 28.04.2014.

Further, the defendants fragmented the composite bid after

opening of the tender bid and issued a Letter of Acceptance on
07.06.2014 (which is after the after the last day of validity of the
tender) for one Sewage Treatment Plant at Narela. The Petitioner
was also directed to submit performance guarantee to the tune
Rs. 5,34,450/- within 15 days which was per se illegal and when
the plaintiff did not accept the conditional offer put forth by the
defendants it resulted in forfeiture of the earnest money Deposit
of Rs. 3,10,444.00.

V) Preliminary objections:

A. That the forfeiture of the Earnest Money Deposit (EMD)

when the Petitioner is not the lowest tenderer is violative of
the rules stated under CPWD Works Manual (2014). Section
19.5 of the CPWD Works Manual states that “the earnest
money given by all the tenders except lowest tenders should
be refunded immediately after opening of the tenders, or
latest within a week from the date of receipt.”
i. That the ratio decidendi in Yogesh Mehta
Vs. Custodian Appointed under the Special Court
and Ors., 2007 (1) CTLJ 84 (SC) as determined by
the Hon’ble Apex Court specifically reads as
under:
“Forfeiture is permissible only when a concluded
contract has come into being and not prior thereto.

Therefore, as established by the Hon’ble Supreme Court of

India, the same ratio is applicable to the present facts and
circumstances and since there was no concluded contract
between the respondents and the petitioners, the
respondent was not entitled to forfeit the earnest money
deposit of the petitioner.

The plaintiff would also like to draw the kind attention of

this Hon’ble Court to a ruling of the Guwahati High Court in
State of Tripura and Anr. v. Bhowmik and Co. 2004(1) CTLJ
523 (Guwahati) where in it has been categorically held as
under:

b. “………………Rather, the crucial point is whether the

petitioner has the right to retain or to forfeit the earnest
money. Both the Courts below have given categorical
findings that there being no agreement, there was no
breach of contract committed by the respondent and
also that since there was no breach of contract, the
petitioner cannot retain or forfeit the earnest money
deposited by the respondent by way of penalty.”

Therefore in the present scenario there no legal agreement

between the parties hence the forfeiture is illegal and the
earnest money has to be returned with immediate effect.
 B. That the Defendants clandestinely reduced the bid of the
company from Rs. 1,73,64,000/- to Rs 1,06,89,000/- The
said offer was 40% less than the bid offered by the petitioner
which caused unbearable loss of more than Rs. 66 lakhs to
the petitioner .
C. That the Defendants fragmented the composite bid for 3
S.T.Ps after opening of tender bid and preparation of
comparative statement of the tenders, more so, after
adjudging tender, bid of Fontus Water Pvt Ltd. as the lowest
bid
D. That the defendant considered bid of the plaintiff’s company
which was of Rs. 1,42,75,000/with respect to the 1 MLD
plant at Narela but ignored the bid of Fontus Water Pvt. Ltd.
which was of Rs. 1,37,49,000/-with respect to the same
plant. It is emphasized that the lowest bidder has to be
selected as L1 and the reason for the aforesaid unjustified
conduct of the Defendants is best known to them.
E. That the Defendants issued ‘letter of acceptance’ to the
plaintiff beyond the validity period of the bid, which
undisputedly was up till 27.05.2014 (three months after
opening of bid, which was opened on 28.02.2014).
’

VI) VALUATION:

VII) JURISDICTION:
Since the Cause of Action arose in New Delhi and both the
plaintiff and the defendants reside in New Delhi, hence this
Hon’ble court has jurisdiction over the matter.

VIII) DECLARATION:

The Plaintiff has not filed any suit against the Defendant and no
suit is pending between the parties in respect of the relief being
claimed in this suit.

IX) LIMITATION:

According to section 80 of Civil Procedure Code, 1908, no suit

can be instituted against the government or any public officer in
respect of any act done by them in such public capacity, until the
expiration of two months next after notice in writing has been
delivered to or left at their office. Further, for calculating the
period of limitation the period of notice must be excluded.

The notice has been delivered to the defendant on ___________

and the suit is being filed on __________ and thus the present suit
is within limitation period.

X) PRAYER:

In the fact and circumstances of the case and in the interest of

justice this Hon’ble Court may graciously be pleased to:

(A) Direct the Respondents to refund balance amount of

Earnest Money of Rs. 3,10,444/- with interest @18% P.A
from 24.04.2014 to date.

(B) And pass such other and further order(s) as this Court may
deem fit and proper in the premises of this case.

VERIFICATION

I, Mr. __________, S/o______________, Age __ years,

Occ.:___________, R/o__________, do hereby declare that he
contents of Para III are true and correct to my knowledge and
believed to be true and correct, and the rest of the paragraphs
are stated on the basis of information and legal advice received
by me and I believe it to be true and verified on this __ day of
_______,2016 at New Delhi.

PLAINTIFF
LIST OF DOCUMENTS ATTACHED

S. No DATE DISCRIPTION OF DOCUMENTS Page No.

1. 28.02.2014 A copy of the sale bid

2. Comparative statement of the bids

Copy of the letter submitting the

3. 25.04.2014 tenders to Chief Engineer sent by
Defendant No. 4

Copy of letter sent to Defendant

No. 4, through Mr. Shivam Singla
4. 28.04.2014
to return the earnest money
amounting to Rs. 10,13,273/-
Copy of authority letter in favour
5.
of Mr. Shivam Singla

Copy of letter of acceptance for

6. 07.06.2014
one S.T.P at Narela

Copy of letter requesting

Defendant No.4 to amend the
7. 16.06.2014
letter as per the quoted price of
the plaintiff.

Copy of letter assigning special

8. 14.08.2014 Power of Attorney to Mr. Gulwant
Singh

Copy of letter sent by Gulwant

Singh requesting Defendant No 4
9. 30.09.2014
to refund Rs. 3,10,444/- along
with 18% interest.