Kit And Consultancy Services vs The State Of Assam And 3 Ors.

Court
Gauhati High Court

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GAHC010131472018

2026:GAU-AS:16209
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4005/2018
KIT AND CONSULTANCY SERVICES
REP. BY ITS PROPRIETOR SMTI. PREMLAKSHMI DEVI GAYAN
W/O SRI DIGANTA VIKRAM GAYAN HAVING ITS OFFICE AT ALOKPUR,
MANIK NAGAR, R.G.B. ROAD, GUWAHATI- 781005, KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF
LABOUR AND EMPLOYMENT, GOVT. OF ASSAM,
ASSAM SECRETARIAT, DISPUR, GUWAHATI - 781005.
2:DIRECTORATE OF EMPLOYMENT AND CRAFTSMEN TRAINING
ASSAM
DEPARTMENT OF LABOUR AD EMPLOYMENT

GOVT. OF ASSAM

REP. BY ITS DIRECTOR HAVING ITS OFFICE AT REHABARI
GUWAHATI- 781008
KAMRUP (M)
ASSAM.
3:THE SR.PRINCIPAL
INDUSTRIAL TRAINING INSTITUTE
JORHAT MARIANI ROAD
SHANKARPUR
JORHAT
DIST. JOHRAT
ASSAM

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PIN - 785001.
4:THE SR. PRINCIPAL
INDUSTRIAL TRAINING INSTITUTE
SRIKONA
P.O. SRIKONA
CACHAR
ASSAM- 788026
BEFORE
HON’BLE MR. JUSTICE DEVASHIS BARUAH

For the Petitioner(s) : Mr. A. Goyal, Advocate
: Mr. A. Choudhury, Advocate

For the Respondent(s) : Mr. G. Bokolial, Government Advocate
: Mr. S. P. Das, Advocate

· Date on which Judgment was reserved : NA
· Date of Pronouncement of Judgment : 04.11.2026
· Whether the pronouncement is of
the Operative Part of the Judgment : Yes

· Whether the full Judgment has been
Pronounced : NA
JUDGMENT AND ORDER (ORAL)
Heard Mr. A. Goyal, the learned counsel appearing on behalf of
the Petitioner and Mr. G. Bokolial, the learned Government
Advocate appearing on behalf of the Respondent No.1. I have also
heard Mr. S. P. Das, the learned counsel appearing on behalf of the
Respondent Nos. 2, 3 and 4.

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2. The Petitioner herein is aggrieved by the non-release of the
Earnest Money Deposit in the form of National Savings Certificates
{Annexures II(A) to II(J)} upon successful completion of the
supply work and as such has approached this Court by filing the
present writ petition.
3. The records reveal that a Quotation Paper was issued by the
Respondent No.2 inviting quotations from reputed manufacturers,
dealers or registered firms having experience for supply of tools
and equipments. The said Quotation Paper stipulated terms and
conditions at Clause B under the heading “Terms & Conditions” and
detailing out in Sub-Clauses 1 to 15.
4. From a perusal of the terms and conditions, it is apparently
clear that the items were only required to be supplied. There is no
whisper in the Quotation Paper that post the supply made of the
items, any further commissioning of those items were required.
Sub-Clause 9 of Clause B of the said Quotation Paper specifically
deals with Earnest Money and the same being relevant for the
purpose of the present dispute, is reproduced herein under:
“ 9. EARNEST MONEY
(i) Earnest Money of Rs.1,00,000.00 (Rupees one lakh only) shall have to be

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enclosed with the quotation in the form of Bank Draft/Call Deposit/Fixed
Deposit/Bank Guarantee issued by the Scheduled Banks only and or NSC,
duly pledge in favour of the Director of Employment & Craftsmen Training,
Assam, Rehabari, Guwahati.
(ii) In case of failure on the part of the supplier to supply wholly or partly the
items ordered by the purchaser as per the terms & conditions of the supply
order, the earnest money deposited may be forfeited wholly or
proportionately at the discretion of the undersigned.”
5. From a perusal of the above quoted Sub-Clause, it would
show that the Earnest Money has to be enclosed with the
quotation in the form of Bank Draft/Call Deposit/Fixed
Deposit/Bank Guarantee issued by the Scheduled Banks only and
or NSC duly pledged in favour of the Respondent No.2. It is further
mentioned that it is only in the case of failure on the part of the
supplier to supply wholly or partly the items ordered by the
purchaser as per the terms and conditions of the supply order, the
earnest money deposited would be forfeited wholly or
proportionately at the discretion of the Respondent No.2.
6. Subsequent thereto, the Petitioner along with various bidders
participated. While participating, the Petitioner submitted the
Earnest Money Deposit in the form of National Savings Certificates
to the tune of Rs.1,00,000/- copies of which have been enclosed as

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Annexures II(A) to II(J). The records reveal that the Petitioner's
bid was duly accepted and a supply order was issued on
18.09.2012.
7. From a perusal of the supply order, it would show that various
terms and conditions have been incorporated. It would include the
terms of delivery, inspection, despatch instruction, terms of
payment, paying authority, date of delivery, etc.
8. It is of relevance to take note of that there were special
instructions which included that the supplier would remain
responsible until the entire goods or equipments reach in good
condition and after successful commissioning of the goods at the
destination.
9. From the materials on record, there is no dispute that the
Petitioner duly made the supply and that the Respondent Nos. 2, 3
and 4 made payment for the same. The dispute however, arises
between the Petitioner and the Respondent Nos. 2 to 4 is on the
question of not refunding the Earnest Money Deposit and it is
under such circumstances, the present writ petition has been filed.
10. The Respondents have filed their affidavit-in-opposition
contending, inter alia, that the supply order also included the

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commissioning of the goods. It was further contended that as no
commissioning was carried out, the Petitioner had failed to comply
with the terms of the supply order, and accordingly, the Earnest
Money Deposit has not been refunded.
11. On the other hand, the Petitioner has contended that the
scope of commissioning of the goods is outside the purview of the
tender conditions. It is further mentioned that the special
instructions which are contained in the supply order, and more
particularly at Clause 11(b), in the context of the tender has to be
understood that the supplier would be responsible until the entire
goods or equipments reach in good condition and after successful
commissioning of the goods at the destination. The commissioning
of the goods is absolutely within the purview of the respondents.
12. This Court has given anxious consideration to the respective
submissions of the learned counsels for the parties. From a perusal
of the materials on record, it is apparent that the scope of the
tender is only for supply of the goods. The tender conditions which
are in the Quotation Paper do not envisage the requirement of
commissioning by the tenderer/the bidder. The supply orders and
the manner in which the payments are to be made also makes it
clear that commissioning is not a part of the supply order. Rather,

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the commissioning would be at the instance of the Respondent
Nos. 2 to 4 and if at the time of commissioning by the
Respondents, any defect is found, the same would be the
responsibility of the supplier. The failure on the part of the
Respondent Nos. 2 to 4 to commission the goods supplied cannot
be a reason to deprive the Petitioner the refund of the Earnest
Money inasmuch as depriving so would render the actions of the
Respondents arbitrary and unreasonable.
13. Considering the above, it is therefore the opinion of this Court
that this is a fit case for passing appropriate directions upon the
Respondents to forthwith return the NSCs, copies of which have
been enclosed as Annexures II(A) to II(J) to the writ petition.
14. Accordingly, the writ petition therefore stands disposed of
with the following observations and directions:
(i) The Respondent Authorities more particularly the Respondent
No.2 shall forthwith and not later than 30 days from the date of
submission of a certified copy of the present judgment return the
NSCs, which were submitted by the Petitioner as Earnest Money.
(ii) This Court is not inclined to impose any interest. However, it
is observed that in the circumstance, within the period as directed

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above, if the NSCs are not returned, the Respondent No.2 shall be
liable to pay interest from the date of passing of the instant
judgment at the rate of 9% per annum on the Earnest Money
Deposit.
(iii) No costs.

Bijoy
Saha
Digitally signed
by Bijoy Saha
Date: 2026.11.05
19:32:46 +05'30'
JUDGE
Comparing Assistant