Full Judgment Text
NON – REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2023
(Arising out of Special Leave Petition (Civil) No. 8755 of 2018)
M/S HORNBILL CONSULTANTS ..... APPELLANT
VERSUS
STATE OF PUNJAB AND OTHERS ..... RESPONDENTS
O R D E R
SANJIV KHANNA, J.
Leave granted.
2. The civil writ petition filed by the appellant – M/s. Hornbill
Consultants to enforce the right to carry on mining operations and,
in the alternative, refund the amount paid, has been dismissed vide
the impugned judgment, with liberty to the appellant to file a suit or
take any other appropriate action for recovery of the amounts, in
spite of the fact that the Division Bench of the Punjab and Haryana
High Court has recorded as under:
Signature Not Verified
Digitally signed by
BABITA PANDEY
Date: 2023.03.02
14:21:33 IST
Reason:
“ 4. ...The provisional acceptance was issued on
05.07.2017 and under the terms and conditions the
amounts were to be deposited by 5.00 P.M. on
Civil Appeal @ SLP (C) No. 8755 of 2018 Page 1 of 7
10.07.2017 (the weekend had intervened as a result
whereof the stipulated period of two days was extended
up to 10.07.2017). The amounts were to be deposited
in a designated account of the respondents at the Axis
Bank. This was notified by a corrigendum dated
15.06.2017. The details regarding the account were
also sent through the provisional acceptance dated
05.07.2017.
Two separate transactions of Rs.28.75 lakhs and
Rs.9.60 lakhs were to be executed by way of transfers
into the designated bank account of the petitioner from
his other account. However, due to server problems in
his bank, the transfers could not take place. The
transfers could not take place even on 08.07.2017 and
th
09.07.2017 as the banks were closed on account of 8
July, 2017 being a second Saturday of the month and
09.07.2017 being a Sunday. The last date for deposit
was 10.07.2017. On 10.07.2017, the said amounts of
Rs.28.75 lakhs and Rs.9.60 lakhs were credited into the
petitioner's account at 3.40 P.M. and 4.20 P.M.,
respectively. The cut off time for RTGS transfers was
3.30 P.M. and for NEFT was 4.30 P.M. Thus, the
amounts could not be transferred to the respondents'
designated account by 5.00 P.M. on 10.07.2017. The
petitioner took permission on the telephone from the
office of respondent No.2 for depositing the amounts by
a demand draft. Accordingly, a demand draft of
Rs.68,46,002/- was obtained by the petitioner in favour
of the respondent concerned. The petitioner's bank has
confirmed that the difficulty was on its part and not on
the petitioner's part. This was recorded by the
petitioner's e-mail dated 10.07.2017. The petitioner took
the demand draft to respondent No.2 on 10.07.2017 but
beyond the office hours. He, therefore, took it again to
the respondents on 11.07.2017. The respondents
retained the demand draft for three months.”
3. The appellant, pursuant to the E-auction Notice dated 13.06.2017,
had submitted the highest bid of Rs.1,85,12,512/- for a mining lease
of the Rurewal Mines, District Amritsar, Punjab, held on
05.07.2017. This bid was accepted by respondent no.2 –
Civil Appeal @ SLP (C) No. 8755 of 2018 Page 2 of 7
Directorate of Mining, Industries and Commerce Department,
1
Chandigarh, Punjab , vide letter dated 06.07.2017, written to
General Manager-cum-Mining Officer, District Industries Centre,
Amritsar, Punjab, with a copy to the appellant for information and
necessary action. The appellant had deposited Rs.31,40,634/- as
earnest money at the time of participating in the auction on
05.07.2017. As per condition nos. 24 and 25 of the E-auction Notice
dated 13.06.2017, the appellant was required to deposit security at
the rate of 25% of the annual contract amount within two days of
the acceptance of the bid, failing which the earnest money was to
be forfeited. There was also a stipulation that the appellant would
be barred from taking part in bids for three years. On account of
bank holidays, the last date of payment, which had to be made by
e-transfer to the bank account of the respondents, was 10.07.2017.
4. We have already reproduced the facts as found by the High Court
in the second paragraph of this order, which clearly show that on
10.07.2017 the appellant was successful in making two online
deposits of Rs. 28.75 lakhs and Rs. 9.60 lakhs by way of Real-Time
2 3
Gross Settlement and National Electronic Funds Transfer .
However, the amount could not be transferred to the designated
1
For short, ‘Directorate of Mining’.
2
For short, ‘RTGS’.
3
For Short, ‘NEFT’.
Civil Appeal @ SLP (C) No. 8755 of 2018 Page 3 of 7
bank account of the respondents on account of a technical glitch in
the bank servers. The appellant has placed on record the letter
written by HDFC Bank Ltd. dated 11.07.2017 stating that further
RTGS transaction for transfer of Rs. 68,46,002/- in favour of the
respondents could not be made before the closure of
banking/RTGS hours. The appellant had then spoken on telephone
to the office of respondent no.2 – Directorate of Mining, and had
got a demand draft of Rs. 68,46,002/- prepared on 10.07.2017
itself. This fact is undisputed and unchallenged. A photocopy of the
demand draft has been placed on record and is also proved from
the debit entries made in the bank account of the appellant. This
demand draft was taken to the office of respondent no.2 –
Directorate of Mining on 10.07.2017, but beyond office hours.
However, it was given to the office of respondent no.2 – Directorate
of Mining on 11.07.2017. The demand draft was retained by the
respondents for over three months before it was returned. A
speaking order dated 03.10.2017 was issued by respondent no.2 –
Directorate of Mining stating that the appellant had defaulted in
payment of its first instalment. Subsequently, a letter dated
10.10.2017 was sent by respondent no.2 – Directorate of Mining to
the appellant informing that the earnest amount of Rs. 31,40,634/-
had been forfeited as per condition no. 24 of the E-auction Notice
Civil Appeal @ SLP (C) No. 8755 of 2018 Page 4 of 7
dated 13.06.2017 and the provisional approval granted to the
appellant had been cancelled.
5. The impugned judgment records that upon termination of the
contract, the respondents had re-auctioned the mining lease but the
highest bid received was only Rs.45,00,000/- per annum. We may
note here that the fresh auction was not at the risk of the appellant,
there being no stipulation in this regard in the tender. The appellant
had filed a writ seeking issue of certiorari to quash the speaking
order dated 03.10.2017 and the letter dated 10.10.2017 cancelling
the provisional acceptance granted in favour of the appellant and
forfeiting the earnest money. Mandamus was also sought seeking
direction to the respondents to grant approval of mining of Rurewal
Mines, District Amritsar, Punjab, as per the bid given by the
appellant on 05.07.2017. The respondents had opposed the said
prayers and, therefore, are to be blamed for the loss. Had the
respondents taken a pragmatic and reasonable view and stand,
public exchequer would not have suffered any loss.
6. The last aspect which needs to be decided is whether the appellant
should be asked to file a civil suit or take any other appropriate
remedy for recovery of the amount forfeited.
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7. In the present case, the writ petition filed on or around 23.10.2017
was dismissed by the Division Bench of the High Court on
16.02.2018. Thereafter, the appellant had filed the present special
leave petition in which notice was issued on 16.04.2018. The matter
has remained pending in the writ court and this Court for
approximately the last six years.
8. It is, no doubt, correct that in contractual matters, the High Courts
do not like to exercise extraordinary jurisdiction under Article 226 of
the Constitution of India, even though this power is plenary in nature
and not limited by any provision of the Constitution of India; as
normally, when disputed questions of fact arise, adjudication in a
civil court is more appropriate, just and fair. Nevertheless, this is not
an absolute rule; more so in cases when the orders passed by the
government authorities are arbitrary, unfair or unreasonable and
4
where the facts are not in dispute and are easily ascertainable. We
are, in view of the lapse of time, inclined to allow the appeal in order
to prevent any further rounds of litigation between the parties when
the facts on record are crystal clear and do not require a detailed
4
This is a matter of prudence and the courts, while exercising writ jurisdiction, normally do not entertain
a dispute which would require adjudication of contesting questions and conflicting claims of parties
which require determination of correct facts for due application of law. However, in the realm of legal
theory and jurisprudence, a writ court exercising power under Article 226 of the Constitution of India
can, if required, take oral evidence.
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review. The aspect of arbitrary and erratic conduct on the part of
the respondents has been addressed and elucidated earlier.
9. Keeping in view the aforesaid principles, and in the facts of the
present case, we allow the present appeal, set aside the impugned
judgment, and direct the respondents to refund Rs. 31,40,634/-, the
earnest money deposited by the appellant. This payment should be
made within a period of eight weeks from the date a copy of this
order is received by respondent no.2 – Directorate of Mining. In
case the refund/payment is made within the said period, no interest
would be payable by the respondents to the appellant. However, in
case the payment is made beyond the stipulated period, the
respondents would be liable to pay interest at the rate of 8% per
annum to the appellant from the date of this order till the date of
payment. There shall be no order as to costs.
......................................J.
(SANJIV KHANNA)
......................................J.
(M.M. SUNDRESH)
NEW DELHI;
MARCH 02, 2023.
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