Delhi High Court - Orders
Texmaco Rail And Engineering Ltd. & Anr vs Ircon International & Ors on 18 July, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~78
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10806/2022 & CM APPL. 31396/2022 (Stay)
TEXMACO RAIL AND ENGINEERING LTD. & ANR.
..... Petitioners
Through: Mr.Dyan Krishnan, Sr. Adv. with
Ms.Kanika Singh, Adv.
versus
IRCON INTERNATIONAL & ORS. ..... Respondents
Through: Mr.Chandan Kumar, Adv. for R-1.
Mr.Arnav Kumar, CGSC with
Mr.Jitendra Kumar Tripathi, GP for
R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 18.07.2022 CM APPL. 31397/2022 (for exemption) Allowed, subject to all just exceptions.
The application shall stand disposed of.
W.P.(C) 10806/2022 & CM APPL. 31396/2022 (for Stay)
1. Notice shall issue to respondent No.1. Since no effective relief is sought against the Railways as well as the Union, they shall stand deleted from the array of parties. Let an amended memo of parties consequently be placed on the record.
2. The Court notes that the petitioner had assailed a communication dated 12 April 2022 issued by the Northern Railways before a Division Bench of the Court in W.P.(C) 6937/2022, in terms of which the petitioner Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 14:51:39 was called upon to show cause why action be not initiated for submitting a false declaration. The aforesaid communication was addressed in the backdrop of the Railways coming to know of a purported blacklisting of the petitioner by Ircon International. That notice was based on a communication of Ircon International dated 15 October 2020, the relevant part of which reads thus: -
"......Your participation as well as participation of every member / partner in any manner as an individual or a partnership firm / JV is hereby debarred from participation in the tender for executing the balance work and your security deposit shall be forfeited and Performance Guarantee shall also be encased,.
Kindly acknowledge the receipt."
3. As is manifest from a reading of the aforesaid passage as appearing in that communication, prima facie, the petitioner stood blacklisted and debarred for the balance works that were connected with the contract with which that communication was concerned. The Court also takes into consideration the following observations as entered by the Division Bench in its decision rendered on the aforenoted writ petition:-
"11. However, this Court considers some prima facie observations necessary in the context of this adjudication. A bare perusal of this letter dated 15th October, 2020 makes it incontrovertibly clear that firstly, the contract being executed by the petitioner for respondent No.3 stood rescinded; and secondly visited a debarment on the petitioner which is specific and particular in its phraseology. It is the scope of the latter which in contention. For convenience, the exact phraseology used in the said letter dated 15th October, 2020 regarding the debarment is reproduced again as under:
"Your participation as well as participation of every member/partner in any manner as an individual or a partnership firm/JV is hereby debarred from participation in the tender for executing the balance work...,"
(emphasis supplied)
12. It seems, at least, from the phraseology used by respondent No.3 in this letter dated 15th October, 2020, that debarment was only for Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 14:51:39 participation in the tender for executing the balance work and not for all other tenders of respondent No.3. This has to be necessarily read in consonance with earlier part of this letter which rescinds the contract and directs the balance work to be carried out independently without the petitioner's participation. The emphasis was on "balance work". Despite what may seem to be ex facie clear, respondent No.3 in its communication dated 9th March, 2022 and 4th April, 2022 (sent to respondent No.2) informed, clarified and verified that this letter dated 15th October, 2020 issued by respondent No.3 debarred petitioner No.1 from participating in all tenders invited by respondent No.3 for a period of two years w.e.f. 15th October, 2020. The petitioner No.1 has objections to this interpretation by respondent No.3 and for having not been put to notice or having had the chance to clarify (since these letters of 9th March, 2022 and 4th April, 2022 have not been shared with the petitioner No.1 prior to these proceedings).
13. However, since this letter has not been challenged before this Court it may not be appropriate for the court to give any conclusive determination on its scope and interpretation. It would be open to the petitioner to assail the communication dated 15th October, 2020 and the recent communication of 9th March, 2022 and 4th April, 2022 in appropriate proceedings and seek appropriate relief as the petitioner may be advised. In other words, notwithstanding how respondent No.3 interprets its own letter, it would be open for the petitioner to assert in appropriate proceedings as to the interpretation, scope, consequence and impact of this letter."
4. Mr. Dyan Krishnan, learned Senior Counsel appearing in support of the petition, submits that there is essentially no need to assail the communication of 15 October 2020 since it is ex facie evident that it stood restricted to the contract with which it was concerned. The grievance essentially is of Ircon International interpreting that communication as amounting to an order of blacklisting and thus debarring the petitioner from participating in further contracts also. The Court, prima facie, finds merit in the contentions raised. Matter requires consideration.
5. Let the respondents file replies within six weeks.
6. In view of the prima facie opinion recorded hereinabove, it is hereby Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 14:51:39 clarified that the order of 15 October 2020 shall not be liable to be construed as blacklisting the petitioner from all contracts and shall stand restricted to the contracts in respect of which balance work was assigned to a third party and the petitioner debarred from that particular tender.
7. List on 6.12.2022.
YASHWANT VARMA, J.
JULY 18, 2022/bh Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 14:51:39