2024:BHC-AUG:15296-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

WRIT PETITION NO.6707 OF 2024 EBIX Cash Pvt. Ltd A Private Limited company incorporated under the provisions of the Companies Act, 2013 through its authorised representative Shaikh Fayazuddin Tajuddin, having office at Plot No.122 & 123, NSEZ, Noida, Uttar Pradesh .. Petitioner Versus

1. State of Maharashtra, Through Chief Secretary, Govt of Maharashtra, Mantralaya, Mumbai

2. Aurangabad Smart City Development Corporation Limited Through Smart City Bus Division, Aurangabad Smart city Office, Near Aamkhas Maidan, Aurangabad

3. The Chief Executive Officer, Aurangabad Smart City Development Corporation Limited (ASCDCL) Aurangabad Smart City Office, Near Aamkhas Maidan, Aurangabad .. Respondents …..

Mr. Shrirang B. Varma a/w. Mr. Viraj Parekh & Mr. Gautam Swaroop, Advocate for the Petitioner Mr. A. R. Kale, Add. G. P. for the Respondent / State.

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CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.

Reserved on : July 12, 2024 Pronounced on : July 22, 2024 FINAL ORDER (Per NEERAJ P. DHOTE, J.) :-

. The Petitioner, a Private Limited Company, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, taking exception to the termination notice dated 13.06.2024 by which the Contract for E-ticketing system for the city buses plied in Aurangabad city allotted to the Petitioner Company is terminated.

2. It is submitted by learned Advocate for the Petitioner that the Petitioner was awarded the contract for the aforesaid purpose on 18.02.2020, pursuant to tender process of 2019. The Petitioner implemented the contract as per the tender document and ‘Go Live Certificate’ was issued by the Respondent No.2 – Aurangabad Smart City Development Corporation Limited (ASCDCL) on 01.11.2021. The Petitioner was implementing the contract successfully for over a period of four (4) years. ASCDCL issued a new tender on 05.02.2024 for procurement of Electronic Ticket Issuing Machines (ETIM). On 08.02.2024 the Petitioner Company objected for allotment of the scope of the work relating to ETIM, as the same was colliding with the scope of work covered by the Petitioner’s contract.

3. It is further submitted that the scope of work in the tender process initiated in February, 2024 was overlapping the work which was being carried out by the Petitioner Company. The tender issued in February, 2024 was not a substitute tender for the Petitioner Company’s contract. The Petitioner Company would be put to loss due to the said new tender process. The act of ASCDCL was mala fide and covered by the principles of ‘doctrine of malice in law’ as the act of ASCDCL was without any lawful excuse.

4. It is further submitted that on 23.02.2024 the ASCDCL issued a show cause notice to the Petitioner Company for terminating the contract on the following two grounds:

(a) That, there were penalties levied upon the Petitioner Company for software being down and other reasons.

(b) That, the ETIM provided by the Petitioner Company had a functionality of printing a ‘Zero Value Ticket’ which caused revenue losses to the ASCDCL.

5. It is further submitted that, the Petitioner Company responded to the show cause notice in detail on 26.02.2024. The Petitioner Company categorically stated that the delay in any software related things was resolved within 30 (thirty) minutes and as such, there was no violation of contract conditions and thus the penalties levied upon the Petitioner Company was illegal and clarified that the functionality of printing ‘Zero Value Ticket’ was as per the specification provided in the tender document. The ASCDCL without there being any consideration or providing any reasons, terminated the contract allotted to the Petitioner Company by the impugned termination notice.

6. It is further submitted that in November-2023 the Petitioner had strongly objected to levy of penalties as the same were inappropriately imposed and the Petitioner Company provided complete data as to