Judgment :-

R.V. Raveendran, J.

Leave granted.

2. The appellant, by 'Notice Inviting Tenders' dated 27.3.2001, invited bids for supply of 441 LCKM of different sizes of Polythene Insulated jelly Filled cables ('PIJF cables' for short). The tender procedure (vide clause 13 of Special Conditions of Contract) required an evaluation of the bids, so as to limit the number of bidders selected for placing orders against the tender, to two-third of the participating and eligible bidders in each group; and the bidders for placement of orders were to be selected from the list of technically and commercially responsive bidders in each group arranged in decreasing order of 'Vendor Rating' starting from the highest. The bidder with the highest Vendor Rating (V1) was to be considered for placing the order for about 30% of the tendered quantity and the balance quantity was to be distributed among the remaining selected bidders in each group in direct ratio of their Vendor Rating. Thus the quantity for which a purchase order was to be placed by BSNL on a bidder depend upon the 'Vendor Rating' of such a bidder.

3. There were several bidders including the respondent and NICCO Corporation Ltd. BSNL awarded the highest vendor rating (V-1), to NICCO. The respondent claimed that on a proper evaluation of bidders, it should have been given the highest Vendor Rating (V-1) in regard to 10P x 0.5 (UA) size cable instead of NICCO; that if it had been adjudged as V-1, it would have secured a Purchase Order for a quantity of 5.842 LCKM from BSNL; that as NICCO was adjudged as V-1, the appellant treated the respondent as one of the 'other bidders' and consequently placed an order only for a quantity of 0.536 LCKM; and that resulted in a shortfall of 5.306 LCKM in the order placed on it. The respondent therefore filed Writ Petition [C] No. 5808/2001 in the Delhi High Court on 18.9.2001 alleging that BSNL had arbitrarily adjudged NICCO as the person with the highest Vendor Rating thereby pushing it down to the category of 'other bidders' which adversely affected the size of its order. It prayed for the following reliefs :

The first round of litigation

(a) to quash the Advance Purchase Orders dated 11.9.2001 issued by BSNL to NICCO.

(b) to issue a direction to BSNL to issue fresh Advance Purchase Orders in terms of the Vendor Rating as on 22nd May, 2001 (date of the opening of the Tender) to it (respondent herein); and

(c) to quash the Revised Delivery Rating of NICCO as set out in the Internal Office memo dated 27.7.2001.

4. A Division Bench of the Delhi High Court allowed the said writ petition by order dated 29.4.2004 (reported in (2004) Delhi Law Times 112). It held that assessment of Vendor Rating done by BSNL in regard to NICCO was not proper. It therefore directed BSNL to redo the Vendor Rating by following the formulae laid down in the tender document, as indicated in the judgment. As the High Court was aware that by then contracts had already been awarded in respect of most of the tendered quantity and only a negligible quantity remained, it issued the following consequential direction :

"In this court's order dated 9.10.2002, it is recorded that there are some supplies which are to be made for which no orders have been placed. ... If the petitioner is rated as V-1, then it shall be given the benefit in the balance supplies that are yet to be made."

The High Court then proceeded to make the following observation, even though there was no claim for compensation/damages in the writ petition :

"It after adjusting the balance amount the petitioner is still entitled to further supplies then it will be open to the petitioner to pursue its remedies against the respondents for compensation/damages that may be available to it in law."

The special leave petition filed by BSNL against the said judgment was dismissed by this court on 1.4.2005. The decision of the High Court thus attained finality.

The second round of litigation

5. By the time the said decision wa