IMPORTANT POINT
The main legal point established in the judgment is the importance of jurisdiction, principles of natural justice, and procedural regularities in the tender process, as well as the consequences of arbitrary cancellation of a Letter of Award without affording an opportunity to the respondent.

JUDGMENT :

K. Vinod Chandran, J.

The appeal by the National Highways Authority of India, (for brevity “NHAI”) impugn the judgment of the learned Single Judge which not only asserted jurisdiction to decide the case, but also interfered with the action of the respondent NHAI in having cancelled the Letter of Award ( for brevity “LoA”) issued to the writ petitioner and set aside the fresh tender notification issued by the NHAI pursuant to the cancellation. The learned Single Judge also directed the bank guarantee invoked on alleged misdemeanor of producing false documents to be refunded to the writ petitioner.

2. Learned Counsel Dr. Maurya Vijay Chandra appearing for the NHAI seriously assailed the findings in the impugned judgment regarding jurisdiction insofar as the entire tender process having been carried out from Delhi, wherein the writ petitioner also had their office and so were the further transactions including the cancellation carried out from Delhi. There was also this specific clause excluding jurisdiction anywhere other than those of the Courts within Delhi, in the bid document the Request For Proposal (RFP); which term is deemed to have been agreed to by the petitioner who participated in the bid and came out successful. The mere fact that the subject of the tender was to be carried out inside the State of Bihar does not by itself confer jurisdiction by reason of the specific clause agreed to by both the parties. Though it could be argued that there was cause of action within the State of Bihar also, when by consensus, the parties had agreed to exclude all other jurisdiction, but for Delhi wherein also there was part of cause of action for reason of initiation of and finalization of the tender proceedings being carried out in that State; clearly excludes the jurisdiction of this Court. The respondent had taken up the contention of lack of jurisdiction at the very first instance of an affidavit being filed in the above proceedings and the finding of the learned Judge of the respondent having acquiesced to the jurisdiction of this court cannot at all be sustained.

3. A list of dates is proffered by the learned counsel to specifically contend that there were no mala fides in the cancellation of the tender and that it emanated from an inquiry conducted into the net worth of the tenderer, which ended in the finding that the certificate of net worth furnished by the writ petitioner was fraudulent. It is hence, by virtue of the specific clause of the agreement, the LoA was cancelled. There is no question of any mala fides being alleged on the respondents nor are the submissions regarding that sustainable for reason of none having been impleaded in the personal capacity.

4. As for the finding regarding the net worth, it is argued that the same cannot be gone into in judicial review, especially since the verification has been done by experts and there is insufficient material on record to find the said decision to be faulty or illegal. It was also pointed out that the fresh notification had come to its logical conclusion by appointment of the successful bidder who had also taken up the work and had been carrying on the same while the proceedings were pending before this Court. There is no question of cancellation of the work, especially since there is no interim order granted in the writ petition and even at the stage of filing of the appeal, it was noted by a Division Bench, while considering the interim prayer, in order dated 23.10.2019 that the matter primarily survives for the second relief relating to refund of the amount of bank guarantee. There was also a stay of refund of the bank guarantee granted as per the said order. It is contended that the appeal has to be dismissed not only on the question of jurisdiction, but also on the merits, even if it is examined by this Court.

5. Sri. Sanjay Singh, learned Senior Counsel, appearing for the writ petitioner, however, points out from the judgment itself that the appellant has a