Back
2005(8) Supreme 17
Supreme Court of India
(From Calcutta High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
M/s. Subhash Projects & Marketing Ltd. —Appellant
versus
West Bengal Power Development Corporation Ltd. and Ors. —Respondents
Civil Appeal No. 5030 of 1999
With
C.A.No. 5031/1999 and C.A. No. 5032/1999
All Decided on 21-10-2005
Counsel for the Parties :
For the Appearing Parties : Salman Khurshid, A.K. Ganguli, T.S. Doabia, Sr. Advocates, Sushil Kumar Jain, A.P. Dhamija, Punit Jain, Ram Niwas, H.D. Thanvi, V. Krishna Murthy, Pradeep R. Tiwary, Manish Sharma, V.K. Verma, Shail Kumar Dwivedi, Advocate (NP), H.K. Puri, Ujjwal Banerjee, S.K. Puri, Ms. Priya Puri, V.M. Chauhan, Advocates.
Held : We were taken elaborately through a large number of documents including the valuation process undertaken by the evaluation committee and the opinions expressed by the other responsible bodies and a reappraisal of those materials, only supports the conclusion of the Division Bench on the matters in controversy. It may be noticed that the learned single Judge had also rejected the contentions of Subhash Projects, and had held that it was difficult to understand as to how the Power Corporation overlooked the original defect in the tender of Subhash Projects which included a price variation clause and not a firm price as stipulated and how it held negotiations only with it at the price bid stage when Subhash Projects admittedly lowered its bid so as to make its offer nearer to the offer of L & T, despite the restriction in that regard as contained in OECF letter dated 1.7.1996 made much of to support the contract given to it and how Subhash Projects was permitted to enter into sub-contracts with other contractors, and that too, even prior to the entering into an agreement by Subhash Projects itself. The learned single Judge had also found that in any event, price variation became necessary in view of the alterations, amendments and clarifications to the tender schedule. The Division Bench had, by and large, agreed with that finding. These findings are seen to be justified on the materials available on record and there is no justification in this Court interfering with those findings in these appeals. Thus, it was a case where different yardsticks were being used at different stages and the persistence of the Ministry of State for Power in raising objections until Subhash Projects was chosen as the lowest tenderer does look strange. Thus, on a reappraisal of the relevant materials in the light of the submissions before us, we are not satisfied that any interference is called for with the judgment of the Division Bench in these appeals. Since we are inclined to agree with the conclusion of the Division Bench that the award of the contract to Subhash Projects was not legal, we see no reason to interfere with the course adopted by the Division Bench in the matter of awarding compensation to L & T payable by Subhash Projects. We also find the sum fixed reasonable and to the advantage of Subhash Projects. We are not inclined to entertain the plea of L & T in its appeal that the award of the contract to Subhash Projects itself must be set aside and the contract directed to be awarded to L & T or to order a fresh tender to be invited for the work. The adopting of such a course would be counter productive in the circumstances, considering the nature of the project and the steps that had already been taken and the completion of the project itself during the pendency of these appeals. One aspect remains to be considered. The Division Bench had directed the Power Corporation to pay out the sum of rupees one crore to L & T out of the payments to be made to Subhash Projects. This Court while issuing notice on 31.8.1998 on the petition for special leave to appeal filed by the Subhash Projects. (Paras 11, 12 and 13)
We feel that interest at the rate of five per cent per annum would be reasonable under the circumstances. We, therefore, direct Subhash Projects to deposit in this Court within four weeks from today the sum of rupees one crore with interest thereon at five per cent per annum from 8.8.2003 till the date of its deposit. The amount will then be disbursed to L & T. It will be open to Subhash Projects to pay the sum of rupees one crore with interest as aforesaid by way of a bank draft to L & T within four weeks and to file an affidavit in this Court testifying to that fact. (Para 13)
Judgment
P.K. Balasubramanyan, J.—These appeals arise from Writ Petition No. 886 of 1997 filed by M/s. Larson & Toubro (‘L & T’ for short), in the High Court of Calcutta. Respondent No. 11 in the Writ Petition M/s Subhash Projects and Marketing Limited (‘Subhash Projects’ for short) was the contesting respondent. By judgment dated 3.10.1997, a learned single Judge of the High Court dismissed the Writ Petition. The Writ Petitioner thereupon filed appeal No. 559 of 1997 before the Division Bench. By judgment dated 14.7.1998, the Division Bench came to the conclusion that the appeal was liable to be allowed and the Writ Petitioner granted relief. Still, it did not grant the full relief to the Writ Petitioner, the appellant before it, but directed the contesting respondent, Subhash Projects, to pay a compensation of Rs. 1 crore to the Writ Petitioner. This was on the finding that the contract based on the tender floated by respondent No.1, the West Bengal Power Development Corporation Limited (hereinafter referred to as ‘the Power Corporation’) ought to have been awarded to the writ petitioner-L & T and the award of the same to respondent No.11 Subhash Projects was illegal, but it was inexpedient at that stage to set aside the award of the contract and the least that should be done was to direct Subhash Projects to disgorge at least some portion of the profit it would have earned out of the illegally awarded contract and make over the same as compensation to the writ petitioner-L & T, who ought to have been awarded the contract. Feeling aggrieved, respondent No.11 in the Writ Petition, Subhash Projects, has filed Civil Appeal No. 5030 of 1999. M/s Larson & Toubro, the writ petitioner and the appellant before the High Court has filed C.A.No. 5031 of 1999 submitting that the High Court having found that the award of the contract to Subhash Projects was illegal, and it should have been awarded to L & T, ought to have gone ahead and struck down the award of the contract to Subhash Projects and ought to have directed it to be awarded to L & T. The Union of India, the Director (Thermal), Ministry of Power and the Central Electricity Authority, who were respondents 8, 9 and 10 in the Writ Petition have filed Civil Appeal No. 5032 of 1999 challenging the judgment of the Division Bench, but essentially complaining, as was disclosed at the hearing, about the remarks made by the Division Bench of the High Court about the interference of the Ministry of Power and that of the Minister of State for Power and about its impropriety. Since all the appeals arise from the same judgment, they have been heard together.
2. With the aid of the Overseas Economic Corporation Fund, Japan (hereinafter referred to as ‘OECF’), the Power Corporation, decided to take up the construction of Bakereshwar Thermal Power Project. Pursuant to that decision, the Power Corporation issued a notice dated 19.7.1995 inviting tenders for the work of water intake and plant water system package for 3 x 20 m.w. units of Bakereshwar Thermal Power Project. The bid was required to be submitted in three separate covers, the first containing the earnest money deposit, the second, the techno-commercial evaluation and the third, the price bid. Pursuant to the tender notice, five bidders including Subhash Projects and L & T submitted tenders. As per the instructions issued to the bidders, bidders were not to be allowed to deviate from the principal requirements of the tender specifications. It was provided that the price quoted should remain firm throughout the period of the contract. In other words, no price variation was permissible. The procedure for opening of the tenders was also set out. Pursuant thereto, Cover-I containing the earnest money deposit and Cover-II containing the techno-commercial evaluation, were opened and the tenderers were found technically qualified. It was found that some vagueness had crept into the notice inviting tenders and that the scope of certain works re
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
