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Aziz Traders Vs. the Chairman, Gujarat Electricity Board and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 580 of 1985
Judge
Reported inAIR1986Guj145; (1986)1GLR171
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rules 1 and 2; Constitution of India - Article 12
AppellantAziz Traders
RespondentThe Chairman, Gujarat Electricity Board and ors.
Appellant Advocate S.N. Soparkar and; S.N. Shelat, Advs.
Respondent Advocate M.A. Panchal and; B.J. Shelat, Advs.
Cases ReferredPrabhudas Bhikhabhai v. State
Excerpt:
commercial - tender - order 39 rules 1and 2 of code of civil procedure, 1908 and article 12 of constitution of india - contention of petitioner that its offer in tender bid was highest and valid to be accepted - offer made by petitioner subject to certain offers - conditional offers put petitioner out of arena of consideration - offer made was not valid - revision application filed by petitioner liable to be rejected. - - the case on hand illustrates what a chaotic situation is created in public administration and public finance and how the working of the state/public sector undertaking is paralysed and what an immense damage is done to the party who is really affected and yet not joined in the suit merely because the lower courts failed to take little more care at the initial stage......order1. this civil revision application provides an illustration as to what happens when civil courts pass orders (ad interim or interim) without taking into consideration the natural and ordinary consequences flowing therefrom. the case on hand illustrates what a chaotic situation is created in public administration and public finance and how the working of the state/public sector undertaking is paralysed and what an immense damage is done to the party who is really affected and yet not joined in the suit merely because the lower courts failed to take little more care at the initial stage. therefore, the question arises, in certain type of cases, should the civil courts issue even ex parte ad interim orders without putting the plaintiff to any terms? should the litigation which can be.....
Judgment:
ORDER

1. This civil revision application provides an illustration as to what happens when civil courts pass orders (ad interim or interim) without taking into consideration the natural and ordinary consequences flowing therefrom. The case on hand illustrates what a chaotic situation is created in public administration and public finance and how the working of the State/public sector undertaking is paralysed and what an immense damage is done to the party who is really affected and yet not joined in the suit merely because the lower courts failed to take little more care at the initial stage. Therefore, the question arises, in certain type of cases, should the civil courts issue even ex parte ad interim orders without putting the plaintiff to any terms? Should the litigation which can be indulged into without any risk and which is likely to cause public damage, be encouraged? Would it not be proper if the lower courts be little more careful and circumspect while passing orders (ad interim or interim) even at the initial stage in matters which are likely to have wider ramifications in the realm of public administration and public finances?

2. The facts in brief leading to this revision application are as follows:

The Gujarat Electricity Board by advertisement dt. July 13, 1984 invited tenders for sale of 700 mt. of iron scrap lying at Ukai. Several parties filled in tenders. The tenders were to be opened on Sept. 1, 1984. There is no dispute with regard to the fact that there were 21 tenderers including the petitioner and the tender filled in by the petitioner was also held to have been submitted within time. It is an admitted position that the petitioner-plaintiff quoted the rate of Rs. 2331/- per mt. and also stipulated further condition to the effect that the payment will be made in five instalments and delivery shall be taken in five instalments, each instalment being of 20 days' duration. Respondent 5 herein had quoted the rate of Rs. 2304/- per mt. But had stipulated no condition for instalments. It appears that respondent 5 wrote a letter dt. Sept. 24, 1984 and raised its offer to Rs. 2365/- per mt. The Board informed the petitioner by its letter dt. Oct. 19, 1984 that the offer made by the petitioner has not been considered and therefore the petitioner was requested to send duly stamped receipt for the refund of the earnest money paid by the petitioner. On the same day the Board informed respondent 5 that the tender filled in by it was accepted. Before the contract could be executed by respondent 5 and the Board, the petitioner filed the suit on Nov. 5, 1984. The petitioner contended that the tender filled in by the petitioner was the highest and that the petitioner's tender ought to have been accepted by the Board. The petitioner further contended that against the terms of auction, respondent 5 revised its offer within the validity period and thereby disqualified itself from being considered and therefore the Board could not have accepted the tender of respondent 5. Be it noted that the petitioner did not join respondent 5 in the suit and made aforesaid prayers. Further the offer made by the petitioner was found to be not valid offer. Respondent 5 has been joined in civil revision application as per the direction given by this Court.

3. In the suit the Board appeared and contended that the acceptance of the tender of respondent 5 was perfectly legal and valid and there was nothing, unlawful or illegal. It was also submitted that if the offer made by the petitioner (Rs. 2331/- per mt.) were (sic) properly scrutinised and it was not the highest offer but it was next to the highest. This was so because the petitioner had stipulated the condition to take delivery within 100 days and the petitioner was to make payment by five instalments, each instalment being of 20 days' duration. If the loss of interest at the rate of 18% per annum for 100 days is taken into consideration, it would come to little over Rs. 64,000/- and the total net price which may be realised by the Board would be around Rs. 15,67,000/-. On the other hand, as per the offer of respondent 5 the amount that may be realised on cash basis at the rate of Rs. 2304/- per mt. would be in the vicinity of Rs. 16,13,000/-. The trial court accepted the defence put forth by the Board and rejected application Exh. 5. The lower appellate court also dismissed the appeal filed by the petitioner-plaintiff. In these proceedings, the period of about six months has elapsed. It may be noted that the value of iron scrap put up for sale was any where between Rs. 15 to Rs. 20/- lakhs.

4. In this revision application directed against the orders passed by the lower courts, the petitioner contends that the lower courts ought to have held that respondent 5 has acted in contravention of clause 19 of the terms and conditions of the tenders and therefore respondent 5 was disqualified and its tender should not have been accepted. It is also contended that the petitioner's offer was the highest and therefore it was not open to the Board to accept the offer of respondent 5 which was lower than that of the petitioner. Lastly it is contended that at any rate, if the Board thought it fit to enter into negotiations with respondent 5, than in that case, the petitioner also should have been invited for further negotiations and should have been given an opportunity to raise its offer.

5. Before examining the contentions raised by the petitioner, at this stage it would be proper to look at the course of the litigation and the complications created on account of the order passed by the lower courts. The trial court as well as the lower appellate court restrained the Board from selling the iron scrap worth about Rs. 15 to Rs. 20/- lakhs to any person whomsoever. Both the lower courts did not impose any terms or conditions on the petitioner and granted blanket stay as prayed for. The lower courts failed to take into consideration the far reaching financial and administrative consequences which were to ensue from their orders. It would not require any managerial or entrepreneurial skill to visualise as to what will be the consequences of the order by which the sale of iron scrap in huge quantity as stated above is stayed. The natural consequences which will ensue and with little application of mind it can be visualised by any man of ordinary prudence, are as follows :

1. The Board would be deprived of its liquid funds till the party whose tender is accepted (and who has not been made party to the suit and appeal before the lower courts) makes payment of the goods sold. Who in turn would not be in a position to pay nor the Board will be in a position to accept.

2. The Board will be required to keep the goods with it though as per the terms and conditions of the contract, the successful bidder could have been asked to clear the same within 45 days from the date of acceptance of the tender.

3. The Board would not be in a position to accept the sale price from the successful bidder. Similarly the successful bidder would not be in a position to pay the same. The successful bidder also will have to keep the funds ready for payment and therefore it will not be possible for the successful bidder to invest or spend the huge amount of about Rs. l6 to Rs. 20/- lakhs for any other purpose.

4. Uncertainty would prevail amongst the members of business community. No one can be sure about the outcome of the litigation. Consequently, businessmen would be slow to come and bid at the auction held by the State and public undertakings which are considered 'State' within the meaning of Art. 12 of the Constitution.

5. The entire working of the State or the public undertakings would be disturbed. This would result into demoralisation of the administration and also result into escalation of cost, the cost which will have to be ultimately borne by the society at large.

6. In this type of litigations, as it has happened in this case also, the party/parties affected is/are ordinarily not joined (in the present case also the plaintiff did not join respondent 5 as defendant in the suit though the bid of respondent 5 was considered to be highest. In revision application as per the directions given by the Court respondent 5 has been joined.). Hence on account of the order passed by the court the parties who are not before the court are being adversely affected. This happens without even notice to them leaving aside the grant of opportunity of being heard.

6. The aforesaid consequences can be visualised by any man of ordinary prudence and understanding. One should only take little mental exercise and examine the question in proper perspective and should ponder over the probable consequences of the order that is prayed for and that is being granted. In such cases, even temporary order can cause havoc and bring about a stalemate or chaotic situation. Even so, it appears to have become a routine for lower courts to grant ex parte ad interim orders affecting day-to-day business activity of the State and/or public sector undertaking and that too in the sphere of business where delay of one or two days also may cause irreparable loss either to the State or public sector undertaking or to the successful bidder. It appears that such orders are being passed mechanically and mostly just for asking. Though in the instant case, the lower courts passed the ultimate orders correctly, but unfortunately failed to take into consideration the far reaching ramifications of their temporary orders. Simply because the State and public sector undertakings which are held to be 'State' within the meaning of Art. 12 of the Constitution are subjected to constitutional restraints flowing from Chapter III of the Constitution, it does not mean that they are not required to act on business principles and that they are not free to act in pragmatic and businesslike manner. Even for temporary period, if the freedom of managers of public sector undertakings is curtailed, it would lead to chaotic situations. The court should be slow to interfere with the actions of the state and the public sector undertakings where even the temporary orders that may be passed by the court are likely to have far reaching financial and administrative consequences. Before exercising the powers judicial review, one is required to ask the question Is the decision of the State/ public sector authority illegal and, or tainted with traud? Once it is shown that there is no illegality, no mala fides or no frauds, the working of the state/public sector undertakings ordinarily cannot and should not be interfered with lightly as is being done by civil courts and as it has happened in this case. It may also be realised that on mere allegations in the plaint or affidavit, arbitrariness, illegality fraud and. or mala fides are not to be taken as proved. It is often said that allegations of mala fides are easy, to be made, but difficult to be proved. It is much more so when the actions of public sector undertaking as are challenged be rival businessmen Recently the Supreme Court had an occasion to consider the question of interim relief being granted against public authorities and the Supreme Court in the case of Asst. Collector C.E., Chandan Nagar, Dunlop India Ltd. AIR 1985 SC 330 has observed as follows:...... But since the law presumes that public authorities function properly and bona fide with due regard to the public interest a court must be circumspect granting interim orders of far reaching dimensions or orders causing administrative burdensome inconvenience or orders preventing collection of public revenue for no better reason than the parties have come to the Court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of public interest. There are many such factors worthy of consideration .........'

Over and above the aforesaid considerations laid down by the Supreme Court, it must be borne in mind that the functioning of the public authorities is like an open book. The managers of the public sector undertakings are constantly in the public gaze. They are subjected to open criticisms by the Press and by the Representatives of the public on the floor of Assembly or Parliament as the case may be. They are again subjected to supervision either by the public Accounts Committee of the State Legislature or by the Estimate Committee of the Parliament. The public authorities are again subjected to the restrictions imposed upon them under the relevant statute and their actions are subject to supervision and control of the proper authority of the Government also. The public authorities do not work for private gains. Interference in the day-to-day working of the public authorities and much more in the sphere of business world where the financial and administrative consequences are likely to be far reaching should be resorted to as a last resort. Interference by was of judicial review should be considered an extraordinary remedy to be used sparingly rather than wielding it lightly just for asking at the request of a busy body or a rival businessman who merely takes chance without incurring any risk whatsoever.

7. In Abhayraj's case (1979) 20 (2) Guj LR 306, this Court Coram M. P. Thakkar, J as he then was had an occasion to prescribe certain dos and don'ts for public sector undertakings. They can be Summarised as follows

1. It must be realised that the public sector undertakings cannot be prevented from showing enterprise or charting out a bold or new course or from taking initiative or from making experiments, research, or innovations in the sphere of their business activities if the public sector is to survive and succeed. In fact they must be encouraged to do so and to benefit by the trial and error method. To say that it must not act arbitrarily or unreasonably is not to say that the aforesaid course is denied to them.

2. What is to be guarded against is the temptation to succumb to favouritism, nepotism or patronage for oblique considerations. Subject to this restraint the public sector is not shackled by any constraints in the matter of enterprise, or innovation so long as it is acting in good faith and so long as it is not indulging in hostile discrimination between citizens.

3. The question has to be viewed pragmatically from the perspective of day-to-day business operations. The public sector undertaking can certainly sell its goods through agents like other private sector concerns. No doubt the selection of agents must not be on arbitrary and irrational grounds and it must be on business principles. So long as people are not excluded or preferred on grounds which would offend Art. 14, or the rationality test, so long as decisions are taken in good faith, and not for any oblique purpose a public sector undertaking would have full freedom to act.

4. In decisions pertaining to business affairs the freedom of public sector undertakings is not truncated beyond the aforesaid limitations. I or instance, if a vast stock of goods has accumulated and finances are needed urgently, or if purchases of raw materials have to be effected urgently, a public sector undertaking can bona fide act like any other businessman on business principles. Hamlet like vacillation need not be counselled, and cannot be forced on it, and its enterprise and initiative cannot and need not, be killed merely because it is a public undertaking.

8. Now let us revert back to the case on hand. As the lower courts granted temporary orders which remained in force for a period of about six months, the respondent-Board could not realise the price of the goods sold by it. The total amount of sale was little over Rs. 16 lakhs. If calculation is made at the market rate of interest for advances ( i.e 20% ), the interest alone for the aforesaid amount of Rs. 16 /- lakhs for a period of six months would be Rs. 1,60,000/-, that is to say, the interest per day would be about Rs. 888/- Add to this charges for storage, maintenance, payment of salary, watch and ward, etc., the amount may go to anywhere beyond Rs. 1000/- per day. This is a question of simple arithmatic. It ought to have occurred to the lower courts that on account of their temporary orders, the public sector undertaking, meaning thereby, the society at large, could not and should not have been put to recurring loss of Rs. 1000/- per-day, The courts have power to impose terms and conditions while granting and/or refusing interim relief under the provisions of O. 39, Rr. 1 and 2 of the Civil P.C. Even if the lower courts thought that there was a prima facie case in favour of the plaintiff (in the instant case there was none) the lower courts ought to have put the plaintiff to terms. In a case like this, the court should have tried to protect the interests of the defendant-Board and that of the respondent 5 which was not even a party to the suit. Had the lower courts directed the petitioner to deposit Rs. 1000/- per day for the entire period during which the interim order operated and further directed that the amount so deposited may be ordered to be paid to the respondent-Board or to any other defendant if the plaintiff ultimately failed, the lower Courts would have been perfectly justified in imposing such terms. On the contrary by not doing so, the lower courts have failed in discharge of their duties and inadvertently caused loss to the respondent Board and to Respondent 5 which was not even party before the lower courts.

9. Ordinarily I would not have entertained this revision application at all. But in view of the failure to exercise jurisdiction by the lower courts and in view of the fact that even temporary orders have brought about a chaotic situation and have caused enormous loss to the Board and respondent 5 and therefore with a view to make an attempt to set right the things, and with a view to undo the wrong which has been caus6d to the Board and to respondent 5, it was considered proper to entertain the revision application and to direct the petitioner to add respondent 5, the successful bidder, as party here in the revision application. Thereafter, as per order dt. April 15, 1985, the Board was directed to call all the tenderers and to hold a meeting for negotiation with them. The negotiation took place on April 30, 1985 in which all the tenderers were called. However, only four of them remained present. The petitioner-plaintiff raised its offer to Rs. 2641/- per mt. Its earlier offer was Rs. 2331/- per mt. The other two tenderers namely, Amee Steel and Gujarat Steel raised their offers to Rs. 2605/- per mt. (its earlier offer being Rs. 1987/- per mt.) and Rs. 2630/per mt. (its earlier offer being Rs. 1887/- per mt.) respectively. Respondent 5 remained present at the time of negotiations, but did not make any bid under the impression that by making the bid it may lose its right as, according to it, a concluded contract has already come into existence between respondent 5 and the Board. Thus, on April 30, 1985, when the negotiations took place, the highest bid was of Rs. 2641/ - per mt. and that was that of the petitioner. On this basis the difference in the total net realisation by sale of iron scrap at the rate of Rs. 2641/- per mt. would be Rs. 1,93,200/-. Thus, during the course of six months (date of tender was Sept. 1, 1984 and the further negotiations took place as per the order of the Court on April 30, 1985. The suit was filed on Nov. 5, 1984 and the temporary order was issued by trial court on Nov. 5, 1984), the difference in the net sale consideration likely to be realised piled up to the extent of Rs. 2 lakhs. The counsel for respondent 5 has conceded that on account of the apprehension in the mind of the respondent 5 about the loss of right which had accrued in its favour, it has not made any offer, but respondent 5 was prepared to pay anything more than Rs. 2641/- per mt. as may be suggested by the Court. At this stage, further discussion with regard to the course proposed to be adopted by this Court may be deferred for a while.

10. Now the contentions raised by the petitioner in this revision application be examined. The petitioner contends that its offer was the highest and it was perfectly legal and valid. Hence the same should have been accepted by the Board. This contention is factually not correct and hence cannot be accepted. The petitioner quoted the price of Rs. 2331/- per mt. (i.e. the total sale price would be Rs. 16,31,700). But the petitioner also stipulated the condition that it would take delivery of the scrap in five instalments and make payment in five instalments ranging over 100 days. On simple arithmatic calculation it can be found that the interest loss, calculated at the rate of 18%, would be Rs. 64,372/- and therefore the total amount of sale price would be Rs. 15,67,328/-. Hence, even on the basis of the original offer of respondent 5 which was Rs. 2304/- per mt. the offer made by it was the highest because the total amount of sale price at the rate of Rs. 2304/- per mt. would be Rs. 16,12,800/-. It must be noted that the terms and conditions on the basis of which the sale was to be made were known to all. It is not the case of the petitioner that it did not know the terms and conditions and on account of ignorance it has stipulated certain conditions in the tender. The petitioner submitted the offer with the condition as aforesaid. This would mean that the offer of sale by cash was not acceptable to the petitioner. On account of such conditional offer only the petitioner put itself out of the arena of consideration. Even if the Board had not considered its offer and straightway rejected its offer, the Board would have been completely justified. Moreover, the lower appellate court was also justified in following the decision of this High Court in the case of Prabhudas Bhikhabhai v. State, (1981) 22 Guj LR 570: (AIR 1981 Guj 117), wherein it is held that the contract given by the State can be quashed and set aside only provided it is established that the decision was arbitrary and discriminatory so as to attract Art. 14 of the Constitution. Merely because the lowest bid is not accepted, it cannot be said that the decision was rendered arbitrarily.

11. Be it noted that till the petitioner plaintiff filed the suit and till the filing of the revision application, no where it is stated that the petitioner-plaintiff had withdrawn the conditions or that it was prepared to withdraw the conditions. True, after the ad interim order was passed by this Court on account of the directions given by this Court, fresh negotiations took place. At this stage only the petitioner-plaintiff came out with revised offer which was raised up to Rs. 2641/- per mt. from its earlier offer of Rs. 2331/- per mt. together with the conditions. In above view of the matter, it is very clear that the offer made by the petitioner was not on the basis of the terms and conditions for sale made known to all by the respondent Board. Therefore, the offer made by the petitioner was not a valid offer at all. Moreover, as shown hereinabove, it was not even the highest offer. Hence the contention that the offer made by the petitioner was valid and was the highest offer has got to be rejected.

12. The petitioner contends that the Board made negotiations with respondent 5 during the validity period of 60 days and therefore, respondent 5 has been disqualified and therefore the offer made by respondent 5 should not have been accepted. Clause 19 of the terms and conditions may be looked at. It reads as follows :

'19 After opening of the tender no revision of he offer will be entertained within the validity period and the Board will also discontinue further business with such tenderers who revise their offer after opening of the tenders within the validity of their offers.'

As stated hereinabove, even as per the original rates, the hi-hest offer was that of respondent 5. In the facts and circumstances of the case, at the worst it may be said that even though the offer of respondent 5 was the highest, it has, subsequently during the validity period, raised its quotation and offered something more to the respondent-Board. The earlier offer of respondent 5 was Rs. 2304 per mt. and by subsequent letter dated Sept. 28, 1984, respondent 5 raised the same to Rs. 2365/- per mt. Strictly speaking, respondent 5 could have insisted that its offer of Rs. 2304/- per mt., on proper calculation being the highest and there being no valid offer by the petitioner, the offer made by respondent 5 must be accepted by the Board. The Board, if acting legally and without ulterior motives, would have no other choice but to accept the offer of Rs. 2304/per mt. made by respondent 5. In the instant case, respondent 5 either on account of the prevailing market situation or on account of some fear either well-founded or apprehended for whatsoever reason, made the offer of Rs. 2365/-per mt. which was higher than its earlier offer of Rs. 2304/- per mt.

13. When the Board has entertained the subsequent offer made by respondent 5 and has allowed it to raise its offer from Rs. 2304/- per mt. to Rs. 2365/- per mt. it has got to be looked into from the point of view of the tests laid down by this Court in Abhayraj's case ((1979)-20(2) Guj LR 306) (supra) regarding the functioning of the public sector undertakings. Clause 19 of the terms and conditions referred to hereinabove has got to be construed, interpreted and understood in the background of the tests laid down by this Court in the aforesaid decision. Can it be said that respondent 5 had misconducted itself and therefore disqualified itself from being considered for the sale of the goods in question. The underlying idea behind Clause 19 appears to be that, once the tenders are opened and the parties knew about the rate filled in by the rival businessmen, there should not be any unhealthy competition and there should not be any scramble for influencing the authorities of the Board. If a person whose bid is lower, does any such thing, he will be guilty of such misconduct. But if a person who is otherwise entitled to get the contract, on his own voluntarily offers higher rate, how can it be said that it would amount to misconduct? Would it not be proper for the public sector undertaking to enter into negotiation with the highest bidder so that the interests of the public at large is not affected. Clause 19 cannot be interpreted in such a manner that it may work against the interests of public at large and it may truncate the freedom of the managers of the public sector undertakings from acting in pragmatic and businesslike manner. By acting in the manner as they have done in this case, the authorities of the respondent-Board have done something good in favour of the Board. Therefore, interpreting C1. 19 in the background of the principles laid down in Abhayraj's case (supra) what has been done by respondent 5 and the Board would not disentitle respondent 5 from being considered for the sale of the goods in question. Hence the contention raised oil the basis of Clause 19 also fails.

14. The last contention that since the Board authorities considered the further offer made by respondent 5, they should have given an opportunity to the petitioner-plaintiff also may be examined. Assuming for a moment that the Board authorities should have given such opportunity to all the tenderers, even so, this contention cannot be accepted at the instance of the petitioner for the simple reason that there was no valid offer made by the petitioner. When the petitioner stipulated conditions regarding payment and delivery of goods, the petitioner dragged itself out of the arena of consideration. Such a grievance, if at all can be made, that can be made by any other person who had made valid offer. In the instant case, as the offer made by the petitioner was not valid one, it was not at all necessary for the Board to have called the petitioner, either at the initial stage or at the subsequent stages.

15. The aforesaid argument that the opportunity to negotiate should have been given to all including the petitioner plaintiff cannot be accepted for another reason also. As stated hereinabove, the public sector undertakings must have freedom to act so long as they act in good faith and not for any oblique reasons. In the instant case, what the authorities have done is to see that the sale proceeds of the goods in question are augmented and the interests of the Board are not jeopardised. Once the persons who get out of the arena of consideration and when there is only one person who legally can insist upon his right and say that 'I am not prepared to pay a pie more and the Board must sell the goods in question to me at the price quoted by me' and with that person if the Board negotiates and if the Board is in a position to get something more, then, it cannot be said that the Board has acted without good faith and for oblique reasons. Therefore, also this contention also has got to be rejected.

16. Normally this should have brought this matter to an end and the judgment must have ended here. But in the peculiar facts and circumstances of the case and on account of the failure of the lower Courts to take into consideration the financial and administrative consequences of their orders, this Court was required to give ad interim direction dt. April 15, 1985, as a result of which the Board entered into negotiations with the tenderers on April 30, 1985 and at the end of the negotiations the price of the iron scrap to be sold was raised to Rs. 2641/- per mt. meaning thereby, there would be difference of Rs. 1,93,200 /- if the iron scrap is permitted to be sold at this rate.

17. It is good, and it must be said to the credit of the Gujarat Electricity Board that like a good businessman, it has stuck to the principle and it has stuck to its word. Simply because the court gave ad interim direction and by carrying out the same even though it would get about Rs. 2 lakhs more, the respondent-Board was not inclined to deviate from its business principles. The Board has made it clear that what is more important for it is the principle in the world of business. .Similarly, respondent 5 has also acted as an honest businessman and it also does not want to take an undue advantage which could have been secured by it on account of the mistake committed by the lower Courts. Counsel for respondent 5 stated that he is prepared to pay anything more than Rs. 2641/- per mt. as may be suggested by the Court.

18. In some other case I might have ventured to make some suggestions but in the facts and circumstances of the case, and particularly in view of the fact that both the parties i.e. respondent 5 as well as the respondent-Board, have shown the fairness and the keenness to adhere to the correct business principles, I leave it to their good senses and it will be open to the respondent Board to make further negotiations with respondent 5 and I hope that respondent No. 5 would not back out from the assurance given to this Court. The Board and respondent 5 will be at liberty to enter into negotiation and enter into contract of sale of iron scrap in question. I hope that they will do so latest before May 8, 1985.

19. Counsel for the petitioner states that the offer made by him also should be considered. As stated hereinabove, as found by me, the offer made by the petitioner could have been rejected at the outset and it could have been kept out of the arena of consideration right from the beginning. Therefore, he cannot be given any chance at this stage. Therefore, the proposal made by him before this Court is rejected.

20. Subject to the aforesaid observations and directions, the revision application is rejected. Rule discharged with no order as to costs. Interim relief stands vacated.

21. Before I signed this judgment I am told by the counsel for the respondent-Board that the respondent 5 has agreed to purchase the iron scrap at the rate of Rs. 2649/- per mt. Thus the Board has realised Rs. 1,98,800/- more than what it would have otherwise received. It must be said that the mistake committed by the lower Courts could be corrected because the respondent Board and the respondent 5, both adopted an eminently fair and reasonable attitude.

22. Counsel for the petitioner requests that the operation of the order be stayed for a period of four weeks. In the facts and circumstances of the case and particularly in view of the fact that the transaction in question is susceptible to market fluctuations and several complications are likely to arise, as have arisen even on account of the temporary orders passed by the lower Courts, the request made by the counsel for the petitioner to stay this order cannot be granted. Furthermore, if the petitioner succeeds, it can be compensated in terms of money. Therefore, the sale by the respondent-Board in favour of respondent 5 cannot be restrained. Hence the request is rejected.

23. Order accordingly.


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