$~59 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 342/2025 NATIONAL HIGHWAYS AUTHORITY OF INDIA...Appellant Through: Ms. Tanu Priya Gupta, Advocate with Ms. Khushi Sharma, Advocate.

versus ATLANTA LIMITED ...Respondent Through: Mr. Chirag M. Shroff, AOR with Ms. Mahima Shroff, Advocate.

Date of Decision: 21st May, 2025 CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE TUSHAR RAO GEDELA

JUDGEMENT

TUSHAR RAO GEDELA, J : (ORAL)

CM APPL. 31183/2025 (Condonation of delay in filing the appeal)

1. Cause shown is sufficient. Accordingly, the application is allowed. Delay of 3 days in filing the appeal is condoned.

2. The application stands disposed of.

CAV 199/2025

3. Since the caveators have entered appearance, the caveat stands discharged.

LPA 342/2025 & CM APPL. 31181-82/2025

4. Present Letters Patent Appeal has been filed assailing the judgment dated 24.03.2025 passed in the underlying writ petition Signature Not Verified Digitally Signed LPA 342/2025 Page 1 of 9 bearing W.P.(C) 6646/2010 filed by the respondent, whereby the learned Single Judge set aside the appellant/NHAI’s decision to reject the respondent’s bid as non-responsive and also directed the appellant/NHAI to refund Rs.48.50 lakhs (on account of forfeiture of

5% bid security) to the respondent alongwith 6% simple interest.

5. On 29.10.2009, NHAI had invited Request for Qualification (hereafter referred to as ‘RFQ’) for the two-laning with paved shoulder of Dindigul-Theni section km. 2.750 to km. 73.400 of NH-45 (Extn.) and Theni-Kumili section from km. 215.500 to km 273.600 of NH-220 in the state of Tamil Nadu under NHDP Phase III Project. In terms of Clause 1.2.1 (Brief Description of the Bidding Process) of the RFQ, the NHAI adopted a two-stage bidding process. The first stage involved the interested parties submitting request applications for qualification whereafter the appellant would announce list of pre-qualified applicants. The second stage involved bidding process comprising of Request for Proposal (hereafter referred to as ‘RFP’).

6. The respondent was declared a pre-qualified applicant on 05.03.2010, and accordingly, the respondent submitted its RFP on 23.04.2010. The respondent’s bid was opened on 23.04.2010 and examined by the Independent Financial Consultants appointed by the NHAI, who identified the following deficiencies, (i) The Power of Attorney submitted in Appendix-III was executed by Mr. Rajhoo Barot, but no Board Resolution authorizing him to execute the Power of Attorney was submitted; and (ii) Notes to Appendix-III required submission of supporting documents such as charter documents or board/shareholder resolutions verifying the authority of the signatory.

Signature Not Verified Digitally Signed LPA 342/2025 Page 2 of 9

7. It is the case of the appellant/NHAI that despite being fully aware of the mandatory nature of this requirement under Clause 2.2.6 of the RFP, the respondent failed to submit any Board Resolution authorizing Mr. Rajhoo Barot, Managing Director (MD) to execute the Power of Attorney in favour of Mr. Ulhas N. Bhole, who in turn signed and submitted the bid on behalf of the respondent. It is stated that this omission was not a mere procedural lapse but a substantive legal deficiency, rendering the bid incomplete, unauthorized and non- responsive, not only in terms of the express stipulations of the RFP but also under the Company Law. It is further stated that as per Clause 2.20.7 of the RFP, submission of a non-responsive bid is one of the grounds for forfeiture and appropriation of 5% of the bid security as pre-estimated damages. Accordingly, by letter dated 13.05.2010, the appellant requested the respondent to deposit Rs. 48.50 lakhs (5% of the Bid Security amount) within 7 days, failing which partial encashment of the Bank Guarantee was indicated.

8. Thereafter, the respondent, vide its letter dated 19.05.2010, categorically contended that its bid was not non-responsive, however, the appellant, through its letter dated 03.06.2010, reject