2017 Supreme(Ker) 899
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.N. RAVINDRAN, K. RAMAKRISHNAN, JJ.
M/s. Flemingo Duty Free Shop Pvt. Ltd. through its Senior General Manager R. Murali & Another – Appellants
Versus
Union of India New Delhi represented by its Secretary & Others – Respondents
WA. No. 354 of 2016 In WP(C) No. 861 of 2016
Decided On : 22-08-2017
For the Appellant :E.K. Nandakumar, P.S. Raman, Sr. Advocates, M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, Joson Manavalan, Kuryan Thomas, Advocates.
For the Respondent:R. Prasanth Kumar, CGC, V. Santharam, N.N. Sugunapalan, Sr. Advocate, G. Sreekumar (Chelur), Advocates.
Headnote:
Contract Act 1872 - Tender - Clauses - Applicability of - Held, court to consider the intention of the author of the clauses as to how this will have to be considered and no extrinsic help should be called for imputing or importing new construction by the court for that purpose .
K. Ramakrishnan, J.
1. The petitioners in W.P.(C).No.861 of 2016 are the appellants in the above appeal wherein they challenge the judgment delivered by the learned single judge dismissing the writ petition. The brief facts of the case are as follows:
2. The first appellant is a company incorporated under the Companies Act, 1956, engaged in the business of operation and management of Duty Free Shops which sell and/or deal in duty free goods at airports and seaports in India. They are operating Duty Free Shops in India at several places like Chennai, Calicut, Mangalore, Goa, Kolkata, Trichy and Ahemadabad international airports and also at Thiruvananthapuram, Jaipur, Amritsar and Lucknow through M/s. Flemingo DFS Pvt. Ltd., which is a hundred percent owned subsidiary of appellant company for which they have signed contracts to operate the Duty Free Shops at International Airports with the Airports Authority of India, the second respondent herein. They are operating at present 26 such Duty Free Shops at various airports and seaports in India. They are part of a multinational travel retail group operating more than 160 outlets over 30 countries spread across Asia, Europe, Africa and Latin America. At present, they are conducting Duty Free Shops at International Airport at Thiruvananthapuram as well, under temporary extension granted by the second respondent. They have executed license agreement with the second respondent through M/s. Flemingo (DFS) Pvt. Ltd and they have been issued license under Section 58 of the Customs Act, 1962 by the jurisdictional Commissioner of Customs for this purpose which is co terminus with the license agreement entered into with the Airports Authority for running a Duty Free Shop in that airport. The second appellant, who is a citizen of India, is a shareholder of the first appellant company.
3. The second respondent floated a Request For Proposal (hereinafter called RFP) for the subject airport, that is Thiruvananthapuram airport, inviting global tenders for conducting Duty Free Shops at Thiruvananthapuram airport terminal along with other international airports in India. Earlier, the first appellant had bid the tender for conducting duty free shop and executed a license agreement dated 4.3.2009 which is valid from 10.1.2007 to 9.1.2012 for space admeasuring 42.46 Sq.ms and also executed another license agreement dated 21.12.2009 valid from 10.6.2009 to 9.6.2014 for space admeasuring 44.83 Sq.ms with the second respondent and these agreements were valid for a period of five years. Thereafter the second respondent had granted extension to conduct the duty free retail outlet till 31st December 2014 which has been recently extended till 31.3.2016 or till the award of new tender.
4. In the month of March, 2015, the third respondent floated a tender to design, built, operate and maintain duty free outlets at Thiruvananthapuram airport (hereinafter called the first tender) and thereafter issued various corrigenda. It was widely advertised in local and national newspapers and e-tenders were invited and 11 companies including the first appellant company purchased the tender documents. It is also mentioned that the interval between the date of floating RFP and the Proposal Due Date (PDD) was more than 60 days and thereby the participating bidders had enough time to evaluate and take a decision on submission of their proposals. The first appellant being an incumbent duty free operator had to obtain no due certificates from all the international airports in India. They had to put in a lot of efforts and expense in comparing and preparing the bid documents for submission of its proposal. They uploaded the technical proposal documents and also submitted its financial proposal in the e-tender portal of the respondents.
5. In pursuance to the first tender on 2nd July, 2015, the technical proposals of the rival bidders were opened at New Delhi. Thereafter on 8th July 2015, the first appellant received an e-mai