W.P.(C.) No.9575/2021

Page 1 of 19

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on:

12.10.2021

%

Judgment delivered on:

09.12.2021

+

W.P.(C) 9575/2021 & CM APPL. 29637-29639/2021

UNDERWATER SERVICES COMPANY LIMITED ..... Petitioner

Through:

Mr.

Parag

P.

Tripathi,

Senior

Advocate with Mr. Mahesh Agarwal,

Mr. Rishi Agrawala, Mr. Ankit

Banati, Ms. S. Priya, Ms. Vishakha

Nagaraj and Mr. S. Srinivasan,

Advocates.

versus

INDIAN OIL CORPORATION LIMITED

..... Respondent

Through:

Mr. V.N. Koura and Mr. Sirish

Kumar, Advocates for respondent

No.1/IOCL.

Mr. Chetan Sharma, ASG with

Mr.Apoorv

Kurup

(CGSC)

and

Ms.Akshata Singh, Ms. Vinay Yadav,

Mr. Akshay Gadeock, Mr. Sahaj Garg

and Mr. Amit Gupta, Advocates for

respondent No.2.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

HON'BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

VIPIN SANGHI, J.

1.

The petitioner has preferred the present writ petition to seek quashing

of the communication dated 31.08.2021 issued by the respondent. The

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petitioner also seeks a direction to the respondent to restore the letter dated

17.08.2021 and allow the petitioner to use its option of Right of First

Refusal (RoFR).

2.

The case of the petitioner is that the petitioner was the first

commercial diving company in India. It has expanded into various ancillary

businesses, including SPM Maintenance, offshore diving including

saturation and mixed gas, plus salvage and wreck removal. The petitioner is

the incumbent contractor at the Paradip Port providing maintenance and

operation of offshore terminals and other facilities, and similar services at

other ports in India, including at IOCL Vadinar, Bharat Oman Refinery at

Singach, BPCL at Kochi, HMEL at Mundra, Reliance at Hazira and Sikka

Port and Terminal Limited – Reliance Group Company.

3.

The respondent No.1/ Indian Oil Corporation Limited (IOCL) invited

a tender for “Maintenance and Operation of Offshore Terminals & Facilities

at Paradip, Orissa” for a period of three years from eligible bidders. The

“Type of tender” was described as “Open (Global), Tender Cum Reverse

Auction”.

4.

The commencement date of the work under the tender, by the selected

contractor was fixed as 14.11.2021 or any other date as notified by the

Engineer-in-charge in that behalf.

5.

The petitioner participated in the tender. The terms & conditions laid

down in the tender provided for preferential treatment to the domestic

shipping industry by providing the domestic players (i.e. those offering

Indian Flag Vessel) the RoFR by matching the most competitive bid if the

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L-1 bidder was the one offering a Foreign Flag Vessel. Relevant clauses in

this regard were incorporated in Clause 23.9.0 and 23.10.0 of the tender

document which were premised on the Circular No.2/2002 issued by the

Director General of Shipping, Mumbai under Sections 406 & 407 of the

Merchant Shipping Act, 1958. Clause 23 of the tender document prescribed

the mechanism of Price Evaluation and Comparison of Bids”. Clause 23.9.0

and Clause 23.10.0 are relevant, and read as follows:

Due consideration will be given to Vessels / Boats

with Indian Flag as per the S.D. Circular-2/2002 dated

08.11.02 issued from the Office of the Director General of

Shipping, Mumbai and any amendments issued subsequently

Shipping, Mumbai. Some of the relevant clauses under

‘Chartering of Vessels done through Tender Process for all

types of Requirements’ are reproduced here:

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the M.S. Act, 1958. In the said tender process, the right of first

refusal will remain with the Indian vessel owner on his

showing readiness to take up the job at the lowest price

indicated by the foreign flag vessels.

• "Right of first refusal" is a right which accrues to a bidder

i