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2022 Supreme(Del) 716
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, JASMEET SINGH, JJ.
M/s MDC Pharmaceuticals Limited - Petitioner
Versus
Union of India & Ors. - Respondents
W.P.(C) No. 7620 of 2021 and CM Appl. Nos. 23847 of 2021 & 24944 of 2021
Decided On : 16-02-2022
For the Petitioner: Mr. Abhishek Sethi, Ms. Richa Sethi, Mr. Garvit Kalra and Mr. Jeevesh Mehta.
For the Respondent: Mr. Bhagvan Swarup Shukla and Mr. Sarvan Kumar, Mr. Shlok Chandra, ESIC with Mr. Shrey Chakraborty, Mr. Vibhor Garg and Mr. Sidhant Bhatia.
Point of Law : Minor infirmities, irregularities, or non-conformities during the preliminary examination of the tenders should not prejudice or effect the fate of the tenderers.
Headnote:
Companies Act, 1956 - Tender process - Disqualification - Pharma industry - MDC was conceived of in year, and was incorporated originally as a private limited company which was duly registered as M/s MDC Pharmaceuticals Private Limited under provisions of Companies Act, 1956 with office of Registrar of Companies - Petitioner was doing business in pharma industry, and was getting medicines manufactured from other pharma manufacturing units within state of Himachal Pradesh - Petitioner continued selling/marketing its products, which were manufactured by other units, till year - Petitioner company acquired a manufacturing facility on rent, and started manufacturing its own products obliterating its need to outsource - Subsequently, Petitioner company purchased land at village, Post Office and, District, H.P. to set up its manufacturing facility - Whether petitioner’s disqualification, even by Review TEC, is justified in terms of e-tender enquiry, and Respondents acted in an arbitrary and unreasonable manner while disqualifying Petitioner on a hyper-technical ground.
Finding of the Court :
Manual for Procurement of Goods, issued by Govt. of India, Ministry of Finance, Department of Expenditure, provides that minor infirmities, irregularities, or non-conformities during preliminary examination of tenders should not prejudice or effect fate of tenderers - Even if, one were to assume that there was any infirmity, irregularity, or non-conformity found by TEC of respondents, same was minor - If it had not been so, respondent ESIC would not have given an opportunity to petitioner to represent against disqualification communicated to petitioner vide email dated in first place - Financial bids of Petitioner have been opened and in respect of four items out of 15 for which petitioner had submitted its bid, petitioner was the lowest bidders - Difference between Petitioner’s bid and next lowest bid is more than double in respect of Tolperisone Hcl - Following chart provides comparison between Petitioner’s bid and L1 rates found by respondent.
Result : Petition is allowed.
JUDGMENT :
1. The present petition has been filed by the petitioner seeking substantially the following prayers:
“i. To issue a writ of in the nature of certiorari or any other writ or direction for declaring the e-mail dated 06.07.2021 issued by respondent No. 4, whereby the bid of the petitioner company has been summarily rejected with a malafide intention to award the tender to a company of their choosing as illegal, arbitrary, unconstitutional, null and void-ab-initio and is liable to be quashed and set aside;
ii. And a writ in the nature of mandamus or any other appropriate writ, order or direction thereby directing the respondents to consider the financial bid of the petitioner on merits to match the lowest bid as would be made by the successful bidder in the tender under consideration;
iii. Or in alternative pass any Writ Petition Under Article 226 Of Constitution Of India For The Issuance Of Writ Of Mandamus Or Any Other Appropriate Writ, Order Or Direction thereby directing the Respondent to desist from opening the financial bids of other contenders and/or to desist from awarding the tenders under consideration to any of the bidders, during the pendency of the instant writ petition;”
2. The case set up by the petitioner is that the petitioner M/s MDC Pharmaceutical Limited (hereinafter called either “MDC” or “petitioner”) is a company registered under the Companies Act, 1956 having its registered office at 213, First Floor, Industrial Area Phase I, Chandigarh – 160002.
3. MDC was conceived of in the year 1994, and was incorporated originally as a private limited company which was duly registered as M/s MDC Pharmaceuticals Private Limited under the provisions of Companies Act, 1956 with the office of the Registrar of Companies, Punjab, Himachal Pradesh and Chandigarh vide Registration No. 53-14820 of 1994 on 14.07.1994. The petitioner was doing business in pharma industry, and was getting medicines manufactured from other pharma manufacturing units within the state of Himachal Pradesh. The petitioner continued selling/marketing its products, which were manufactured by other units, till the year 1999.
4. In the year 1999, the petitioner company acquired a manufacturing facility on rent, and started manufacturing its own products w.e.f. 14.02.2000, obliterating its need to outsource. Subsequently, Petitioner company purchased land at village Gullarwala, Post Office and Tehsil Baddi, District Solan, H.P. to set up its manufacturing facility.
5. On 12.08.2005, the petitioner company acquired the adjoining land also, and obtained necessary permission under Section 118 of the Himachal Pradesh Tenancy & Land Reforms Act, 1972, and started a manufacturing facility for its pharma products on 02.04.2006.
6. On 13.03.2018, the petitioner company converted from a private limited company into a public limited company, and consequently, changed its name from MDC Pharmaceutical Private Limited to MDC Pharmaceuticals Limited with the approval of Registrar of Companies, Chandigarh. A certificate dated 13.03.2018 was issued by the ROC, Chandigarh to that effect, with the approval of the Central Government, accorded vide SRN G79087573 dated 13.03.2018.
7. Although, vide letter dated 27.01.2020, the petitioner company has been granted the necessary permission for change in the revenue record from MDC Pharmaceuticals Private Ltd. to MDC Pharmaceuticals Ltd., however, an unjustified condition of payment of stamp duty and registration fee was thrust on the petitioner company. Therefore, the petitioner company filed a writ petition, being CWP No. 2611/2021 before the Himachal Pradesh High Court at Shimla, to challenge the aforesaid condition of payment in stamp duty and registration fee. The said writ petition was allowed by the Shimla High Court 24.04.2021. However, since compliance was not effected in respect of the court’s order, the petitioner
