HIGH COURT OF DELHI
UNDERWATER SERVICES COMPANY LIMITED – Appellant
Versus
INDIAN OIL CORPORATION LIMITED – Respondent
W.P.(C)-9575/2021
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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W.P.(C.) No.9575/2021
Page 2 of 19
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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W.P.(C.) No.9575/2021
Page 3 of 19
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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W.P.(C.) No.9575/2021
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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