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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
DEEPAK MAHESHWARI, J.
Emkay Medicare Services through its Proprietor Ayub Ali S/o Noor Mohammed - Appellant
Versus
The President, Rajasthan Medicare Relief Society & Ors. - Respondents
S.B. Civil Second Appeal No. 221, 222 of 2014
Decided on : 02-06-2017
TENDER - PUBLIC PRIVATE PARTICIPATION - MEDICAL INVESTIGATION - MRI AND CT SCAN - CONDITIONS - VALIDITY - MALAFIDE - JURISDICTION - COMMITTEE - AUTHORITY - MALICE - EVIDENCE - ADMISSIBILITY - PREMATURE SUIT - SECTION 80(2) CPC - LEAVE - DEEMED PERMISSION - ESTOPPEL - APPEAL - INTERIM ORDER - CHALLENGE.
Fact of the Case:
Appellant filed a suit for permanent and mandatory injunction against respondents, which was decreed vide judgment dated 19.10.2010 by learned Civil Judge (JD), Bikaner. Two appeals were preferred against the said judgment; one was filed by defendant No.4 M/s. Ganpati Diagnostic Centre (Civil First Appeal No.11/2011) and another was preferred by Chairman, Rajasthan Medicare Relief Society, PBM Hospital, Bikaner (in short, “RMRS”) & others (Civil First appeal No.12/2011). Learned lower appellate Court allowed both the appeals and quashed and set aside the judgment and decree dated 19.10.2010 passed by learned trial Court vide judgment dated 11.09.2014. Plaintiff-appellant Emkey Medicare Services has preferred both these appeals against this judgment dated 11.09.2014.
Finding of the Court:
The tender submitted by defendant No.4 was not in the prescribed tender form issued by the hospital. The committee headed by District Collector, Bikaner was not authorized to finalize the tender process. The suit filed by the appellant cannot be termed as premature. The plaintiff was granted leave under Section 80 (2) CPC.
Issues: 1. Whether the tender submitted by defendant No.4 was valid? 2. Whether the first appellate court was justified in coming to the conclusion that the plaintiff was not granted leave under Section 80 (2) CPC? 3. Whether in the facts and circumstances of the case, the suit filed by the appellant can be termed as premature? 4. Whether in the facts and circumstances of the case, the first appellate court was justified in coming to the conclusion that plaintiff was not granted leave under Section 80 (2) CPC?
Ratio Decidendi: 1. The tender submitted by defendant No.4 was not in the prescribed tender form issued by the hospital, hence, it was not valid. 2. The committee headed by District Collector, Bikaner was not authorized to finalize the tender process, hence, its decision was not valid. 3. The suit filed by the appellant cannot be termed as premature as the whole process of finalization of the tender was completed by the committee constituted by Government of Rajasthan. 4. The plaintiff was granted leave under Section 80 (2) CPC as taking into consideration the urgency in the matter, learned trial Court allowed the case to be listed during summer vacation and this is a deemed permission on the application filed under Section 80 (2) CPC.
Final Decision: Both the appeals succeed. In the result, the judgment dated 11.09.2014 passed by learned lower appellate Court in Civil Appeals No.11/2011 and 12/2011 is quashed and set aside, while upholding the judgment and decree dated 19.10.2010 passed by learned trial Court. Accordingly, both the appeals preferred by appellant/plaintiff are allowed.
1. Both these appeals arise out of the common judgment dated 11.09.2014, therefore, they are being decided by this common judgment. Learned lower appellate Court has also decided the first Appeal No.11/2011 and 12/2011 by common judgment dated 11.09.2014 arising out of the judgment and decree dated 19.10.2010 passed by Civil Judge (JD), Bikaner.
2. For convenience, facts of SB Civil Second Appeal No.221/2014 are taken into consideration.
3. Appellant M/s Emkay Medicare Service filed a suit for permanent and mandatory injunction against defendants, which was decreed vide judgment dated 19.10.2010 by learned Civil Judge (JD), Bikaner. Two appeals were preferred against the said judgment; one was filed by defendant No.4 M/s. Ganpati Diagnostic Centre (Civil First Appeal No.11/2011) and another was preferred by Chairman, Rajasthan Medicare Relief Society, PBM Hospital, Bikaner (in short, “RMRS”) & others (Civil First appeal No.12/2011). Learned lower appellate Court allowed both the appeals and quashed and set aside the judgment and decree dated 19.10.2010 passed by learned trial Court vide judgment dated 11.09.2014. Plaintiff-appellant Emkey Medicare Services has preferred both these appeals against this judgment dated 11.09.2014.
4. Brief facts giving rise to these appeals are that a suit for mandatory and permanent injunction was filed by the appellant/plaintiff before the Court of Civil Judge (Junior Division), Bikaner contending interalia that the respondent/defendant No.3 had invited tenders vide Notice Inviting Tender (NIT) dated 29.02.2008 for installing machines to conduct MRI and CT Scan Tests. Thereafter, amended tender notice was issued on 20.04.2008. As per the tender notice dated 29.02.2008, the interested firms were required to submit the rates of investigations in sealed envelopes as per the terms and conditions given in the prescribed tender forms issued by the Hospital. By amended tender notice dated 24.04.2008, dates for submissions of tenders were extended and some changes were also made in the terms and conditions/ specifications. In the tender proceedings, one M/s. Indiana Nuclear Med Center also submitted its tender which was conditional and, therefore, the same could not have been considered. The respondent no.1/defendant no.4 M/s. Ganpati Diagnostic Center also submitted its tender which was not in the form issued by Member Secretary, RMRS, PBM Hospital, Bikaner and it was simply on a paper typed from computer and the same could not have been considered. M/s. Ganpati Diagnostic Center was called for negotiation and counter offer was given to it which was accepted. It was submitted that the tender of appellant/ plaintiff was lowest on account of non acceptability of tenders of M/s. Indiana Nuclear Med Center and M/s. Ganpati Diagnostic Center and therefore, the appellant/plaintiff was entitled for permanent and mandatory injunction directing the respondents to accept the bid submitted by plaintiff and to issue him the work order and also restraining them from issuing the work order to any other firm.
5. Written statement was filed on behalf of the respondent/defendants No. 1 to 3 mentioning therein that the suit was premature. Objections with regard to Court fees was also taken and in additional submissions, the details with regard to tender process were mentioned. It was submitted that tenders were invited for installing MRI and CT Scan Machines in Govt. PBM Hospital, Bikaner on the basis of Public Private Participation. The tenders were invited for a period of 10 years. Five applicants namely Emkay Medicare, Indiana Nuclear Med Center, Ganpati Diagnostic Center, Shubham Diagnostic Center, Sanya Hospital & Diagnostic Center submitted tenders. The tenderer were required to submit technical and financial bids and details of rates was to be given in financial bids only. The tenders of all the five applicants were found valid in the technical bid and, therefore, financial bids were opened by the committe
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