The main legal point established in the judgment is the essentiality of the Banker's Certificate in the tender process to determine the financial ability of the tenderer.

B.P. DHARMDHIKARI, J.

1. Rule, made returnable forthwith and heard finally with consent of parties.

2. The petitioner Firm questions the communication dated 7.9.2015 issued to it by respondent no. 2 pointing out that it has not submitted the certificate of availability of credit from its banker towards the evidence of adequacy of working capital as per notice inviting tenders (NIT).

3. This Court issued notice in the matter on 21st September 2015 and at that time, passed the following order:-

“Heard Shri A.A. Naik, learned counsel for the petitioner.

It appears that in the earlier tender process dated 16.3.2015 and thereafter dated 18.5.2015, the petitioner has been permitted to participate on the basis of documents i.e. Certificate of Chartered Accountant showing his financial capacity. The Banker's certificate which is being insisted upon now, was then not asked for.

Notice, returnable on 29.9.2015.

Though the respondents may proceed further with consideration of other offers, it is open to them to simultaneously evaluate offer of the petitioner also without prejudice to their defence in the present petition.

Though tender process may continue, work order shall not be issued till next date.”

4. We have heard Mr Akshay Naik, learned counsel for the petitioner and Mr S.P. Dharmadhikari, Senior Advocate with Mr C.S. Samudra, learned counsel for respondents.

5. Mr Naik points out that in response to NIT dated 13th June 2015 and as per terms & conditions, particularly clause 6B. Petitioner submitted certificate issued by a qualified Chartered Accountant dated 13th April 2015. He points out that as such, condition which required Banker's Certificate regarding availability of access to credit is not an essential condition. On earlier occasion also, certificate issued by the Chartered Accountant was accepted as sufficient evidence of adequacy of working capital and price bids submitted by the petitioner along with others were opened. He invited our attention to two such previous occasions where certificate issued by the Chartered Accountant was accepted as valid.

6. He contends that only explanation for deviating from this course as offered by the respondents in their reply-affidavit is that the present NIT is online tender process while earlier, it was manual one. He submits that whether process being followed is manual or online is not relevant and nature of procedure has no bearing on the nature of condition. Once the condition is accepted to be colateral one, merely because the process being followed at this juncture is online, that condition cannot be elevated and read as an essential condition. He submits that earlier the contract of transportation of coal had been awarded to the petitioner in view of the price bids which were opened on the strength of Certificate of Chartered Accountant.

7. Mr S.P. Dharmadhikari, learned Senior Advocate relies upon reply-affidavit. He submits that merely because on earlier occasions certificates of Chartered Accountant were accepted, that by itself does not make the condition mentioned supra colateral one. He points out that the tender process itself consumes lot of time and looking to the same, it is essential to determine the financial ability of the tenderer. Clause 6B, therefore, stipulates that a certificate issued by a Scheduled Bank regarding availability of access to credit and it is an essential condition. As earlier certificates issued by the Chartered Accountant were accepted by the respondents, not only the petitioner, but other four bidders were also given opportunity to submit the Banker's Certificate of scheduled Bank and time of days was given to them with understanding that no further extension would be allowed in that respect.

8. Petitioner has on 17.9.2015 submitted an affidavit to the respondent seeking time to submit the said certificate of banker and agreed to furnish it before award of contract/issue of Letter of Acceptance, as early as possible. Ultimately, on