Delhi District Court
Manohar Lal Sharma vs The Commissioner ,Govt. Of N.C.T. on 4 May, 2010
Civil Suit No.24/09
Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T.
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.24/09
Manohar Lal Sharma ........Plaintiff
Vs
The Commissioner ,Govt.
of N.C.T. ........ Defendant
ORDER
1 By way of present order I shall conscientiously decide the application u/o XXXIX Rule 1 and 2 read with section 151 CPC of the plaintiff/applicant thereby seeking a restraint on the defendant its agents, officers etc. from transferring/allotting/handing over the possession of Shop No61, Maharana Partap Interstate Bus Terminus, Kashmere Gate, Delhi to any other person except the plaintiff.
2. Eschewing prolix details to the pleadings, crystallizing the same the grievance of the plaintiff against the defendant is in respect 1 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. of an open tender for one shop bearing No.61 situated at Maharana Pratap Interstate Bus Terminus ,Kashmere Gate Delhi for which the plaintiff is stated to have filed a tender sometime in the month of August 2008. The plaintiff is also stated to have deposited Rs.50,000/ as earnest money alongwith the tender document. It is the case of the plaintiff that after opening of tender he was found to be the second highest bidder in respect of shop in question and the first highest bidder has failed to comply with the tender conditions and as per Clause1 of the tender documents the offer should have come to him and he as such being entitled to allotment of the aforesaid shop No.61 at Maharana Partap Interstate Bus terminus, Kashmere Gate, Delhi which the defendant has failed to allot to him despite his repeated oral requests and letter dated 22.10.08, 11.11.08 and 25.11.08 . As per plaintiff the act of defendant not giving a shop to him amounts to discrimination and defendant deliberately and for the reasons best known to is avoiding to give the aforesaid shop to the plaintiff and as per plaintiff the aforesaid act is not legal and justified but are against the principle of law and procedure which the defendant as a governmental instrumentality are bound to function. The plaintiff has filed the instant suit for permanent 2 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. and mandatory injunction thereby seeking a restraint restraining the defendant its agents, officers etc from transferring, allotting, handing over the possession of the shop No.61 situated at Maharana Pratap Interstate Bus Terminus, Kashmere Gate Delhi to any other person other than the plaintiff. Alongwith the suit the plaintiff has filed the instant application u/o XXXIX Rule 1& 2 CPC .
3. Defendant contested the suit by filing a detailed written statement in which the preliminary objections regarding very maintainability of suit have been taken. Defendant has vehemently stated that the terms and conditions of the tender as mentioned in para 18 of Tender Documents confers the discretion on the Government of NCT of Delhi (Transport Department) to accept or reject any or all the tender without assigning any reasons thereof or without being answerable to tenderer in any manner whatsoever. Defendant has further stated that in any case a tender in question has already been cancelled since the shop in question were not in a good condition and whole building of Interstate Bus Terminus, Kashmere Gate Delhi is under renovation. In its reply on merit defendant has stated that the defendant 3 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. has a right to reject any or all the tenders without assigning any reason and the right of the Government of N.C.T. of Delhi (Transport Department) to renotify the tender notice is reserved in the conditions of a tender document itself. Defendant has stated that even otherwise no cause of action has arisen in favour of the plaintiff and against the defendant at any point of time , hence the suit is liable to be dismissed.
4. Plaintiff on its part has filed replication to the aforesaid written statement denying the contention raised by the defendant in written statement and reiterated the contents of plaint on oath .
5. I have heard the ld counsel for the parties Ms Dimri and Sh Yadav for quite sometime and perused the entire record including the pleadings and documents as also the original record of the department. First and foremost in order to obtain an adinterim injunction u/o XXXIX Rule 1 and 2 CPC the plaintiff has to satisfy the court on the trinity principle of strong prima facie case, balance of convenience and irrepairable loss and injury which cannot be monetarily 4 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. compensated. Besides injunction is a discretionary relief for which the plaintiff has to approach the court with clean hands and without concealing material facts. The pronouncement of law of superior courts are many on the aforesaid preposition of law and need no repetition. In the instant case the grievance of the plaintiff is that being the second highest bidder in the bid for shop No. 61, Maharana Partap Interstate Bus Terminus, Kashmere Gate, Delhi he is entitled to the allotment of shop in question in view of failure of highest bidder accepting the tender offer from the defendant and in view of the mandatory condition No1 of the tender document whereby which the second highest bidder shall become automatically entitled to be given an offer in case of failure of the highest bidder accepting the same. In this regard the court has to first see whether any right has been created in favour of the plaintiff which he can legally enforce before the court of law. It is settled preposition of law that the notice inviting the tender is merely an invitation to offer whereafter which the tendering department has to raise an offer which is to be accepted by the tenderer resulting into a Tender Agreement. In this case though there was stipulation that in case of failure of highest bidder completing the formalities or tender conditions the second highest bidder 5 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. shall be given an offer. However it is to be borne in mind that in this case the offer was never given to the plaintiff even after first bidder Sh Sanjeev Saijwal has failed to complete the necessary formalities. Merely the fact that the plaintiff was second highest bidder and was ready and willing to complete the necessary tender formalities does not ipso facto create a right in his favour or obligation on the defendant to necessarily issue an offer letter . More so when the condition No1 itself lays down that the Commissioner of Transport shall have all the right to reinvite the tenders in the matter. Even otherwise the tender proceedings have been cancelled on 13.10.08 and as per the notices made in original file each and every time proposal has been made either to accept the bid by plaintiff or to reinvite a fresh tender. Right of the government/transport department to accept or not to accept any or all the tenders or cancel the same as per Clause18 of Tender Agreement has not been disputed. It is further a settled preposition of law that the court should be sluggish in interfering with policy matters of the Government unless the same results into arbitrariness, illegality or are blatantly unjustified. Plaintiff as such has not been able to show a strong prima facie case in its favour. Balance of convenience also not tilted in favour of the plaintiff and there exist no 6 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. irrepairable loss or injury shown on record which cannot be monetarily compensated. In any case the tender has been cancelled on 13.10.08. Though the same ought to have not been duly communicated or notified to the public on which count the defendant has failed . Be that as it may the plaintiff has failed on all the three counts to be shown necessarily in order to entitle him to relief of adinterim injunction u/o XXXIX Rule 1 and 2 CPC .
Before parting with the order it is pertinent to point out that prayer in the interim application and the prayer in the main suit are same and grant of injunction in such case would amount to decreeing the suit itself without trial. Reliance placed on 1980 RLR 646 titled Phelps India Vs Shalimar Paints, AIR 2004 Delhi 107 (DB) titled Ashok Kumar Vs Vandana Bajpai and recent judgement of our own Hon'ble High Court reported in 157 (2009) DLT 674 titled Idea Estate Pvt. Ltd. Vs Trans Asian Industries Exposition Pvt Ltd.
6. In view of the aforesaid discussion and findings of the court the court is of the considered opinion that plaintiff has not been able to show any entitlement in his favour. The application of the 7 Civil Suit No.24/09 Manohar Lal Sharma Vs The Commissioner ,Govt. of N.C.T. plaintiff merits to be dismissed at this stage and the same is accordingly dismissed. With the aforesaid observation application u/o XXXIX Rule 1 and 2 CPC stands disposed of . Nothing expressed herein shall tantamount to an expression of opinion on the merits of the case .
Ordered accordingly ,
(MUKESH KUMAR GUPTA)
DATED 04.05.2010 SCJ/RC/(NORTH/DELHI.
ANNOUNCED IN OPEN COURT.
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