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2017 Supreme(Del) 2467
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, S.P. GARG, JJ.
ABC BEVERAGES PRIVATE LIMITED - Petitioner
Versus
INDIAN RAILWAY CATERING & TOURISM CORPORATION (IRCTC) LTD. & ANR. - Respondents
W.P. (C) 2785 of 2017, CM APPL.12049 of 2017
Decided on : 28-07-2017
Advocate Appeared:
For the Appellant :Mr. Subhiksh Vasudev, Advocate.
For the Respondent:Mr. Sunil Malhotra, Advocate.
Important Point – Procedure is a device of justice and is not to be used to thwart same purpose.
Headnote:Government Contract – Notice Inviting Tender – Where technical bid of Petitioner was rejected by IRCTC on technical grounds, rejection was meted out in an arbitrary and discriminatory manner – Distinction sought to be made between filings in petitioner’s documents and those of co – bidder is artificial – There is no tender condition which demarcates between basic or primary and secondary or ancillary documents – Likewise, there is no indication that all conditions would be deemed essential or that some are inessential – Option exercised by tender committee to treat petitioner’s documents as non – compliant and omission or failure of co – bidder to file documents deemed necessary in NIT, is exercise of arbitrary power – Procedure is a device of justice and is not to be used to thwart same purpose – Rejection of Petitioner’s technical bid based on evidently curable defect of a missing notarial stamp on some of their tender documents is thereby untenable and bad in law. (Paras 12, 13, 15, 16 and 17)
S.RAVINDRA BHAT, J.
1. The Petitioner is engaged in carrying out the business of manufacturing and trading of water, beverages, distilled water etc. It is aggrieved by the rejection of its technical bid by the first respondent (hereafter “IRCTC”) on 07.03.2017. The bid was submitted in response to a Notice Inviting Tender (“NIT”) dated 06.10.2016 for selection of developer for setting up &operation of “Rail Neer” Packaged Drinking Water Plants at Sankrail (Howrah) & Dist. Hapur (UP.).
2. IRCTC had originally floated the NIT on 06.10.2016, and thereafter revised it on 21.12.2016. The Petitioner submitted its technical and financial bids on 09.01.2017 in accordance with the procedure prescribed in the revised NIT. In accordance with Clause 3.4 of the revised NIT, the technical bids contained in Envelope No. 1 were opened on 11.01.2017 by IRCTC. No deficiency in the bids was pointed out to the petitioner at that time. On the contrary, minor deficiencies in the bids of some other bidders, for instance, non-submission of certain documents in the bid of Ion Exchange (India) Limited, were pointed out by IRCTC. Thereafter, on 07.03.2017, it came to the petitioner’s knowledge, from IRCTC that its technical bid was rejected on the ground that a notarial stamp was not affixed on certain Tender documents i.e. APPENDIX - II, III & IV, (though those documents were duly attested and notarized), as was required by sub-clauses (b) to (d) of Clause 2.12.1 (i) of the revised NIT.
3. The technical bid of the petitioner was rejected outright on the ground of absence of a notarial stamp on certain documents. Per contra, Letter of Award (LOA) of the tender for the Hapur project - site had already been issued by IRCTC to Surya Infrastructure Pvt. Ltd. (the second respondent, hereafter “Surya”), after permitting it to correct lacunae in its bid submission and allowing them to furnish the document mentioned at sub-clause (e) of Clause 2.12.1 (i) of the NIT i.e. the “Notarized true copy of Incorporation Certificate Memorandum and Articles of Association” which was not filed originally at all. It was to be notarized subsequently as late as in March, 2017, a date that was not prior to 11.01.2017, when the technical bids were opened.
4. The Petitioner filed writ petition W.P.(C) No.2439/2017 titled ABC Beverages Private Limited vs. Indian Railway Catering & Tourism Corporation (IRCTC) Ltd. before this Court seeking quashing of the impugned letter dated 07.03.2017 and seeking directions for the consideration of its financial bid; the matter came up for hearing before a Division Bench of this Court. Counsel for IRCTC produced a letter of award dated 10.03.2017 to suggest that tender had been awarded in favour of the second respondent. In the said circumstances, the Petitioner sought liberty to withdraw W.P.(C) No.2439/2017 and to seek other remedies in law in light of the said development. The writ petition was dismissed as withdrawn with the aforesaid liberty. The petitioner thereafter filed the present writ petition.
5. The Petitioner, contending that its bid was rejected on purely frivolous grounds cited the judgment of this court in Satish Chander Saxena v. Delhi Administration &Ors (2001) 92 DLT 2008, where it was held that absence of affixation of notarial stamp on a transfer document is not fatal to a person's claim for being accepted as a member of a co-operative society. The decision in Indian Oil Corporation Ltd. vs. Kapil Bagri [(2015) 222 DLT 461 (DB)], where it has been held that minor curable defects cannot be a ground to defeat the substantive rights of an applicant who cannot be knocked out on frivolous technical pleas was highlighted. In that case, absence of signatures of Notary Public on one of the affidavits was held to be a curable defect and the application of the respondent in that case could not be knocked out on the said technical grounds.
6. The IRCTC in its reply and in the submissions made on its behalf by Sh. Sunil Malhotra,
