Punjab-Haryana High Court
M/S Power Tech Engineering Company vs Indira Gandhi Super Thermal Power ... on 17 December, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19544-2014 (O&M)
Date of decision:- 17.12.2014
M/s Power-Tech Engineering Company and another
...Petitioners
Versus
Indira Gandhi Super Thermal Power Project and others
...Respondents
CORAM: HON'BLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Harkesh Manuja, Advocate,
for the petitioners.
None for the respondents.
****
S.J. VAZIFDAR, A.C.J. (ORAL)
The petitioner No. 2, who is the proprietor of petitioner No. 1 - firm, has challenged the rejection of his tender. The petitioner's tender was rejected on the ground that the documents tendered by him indicated that he was not qualified as he could not use the credentials of a dissolved partnership firm. The petitioner No. 2 submitted his bids in answer to two tender notices. There was a condition in the NIT that bidder should have successfully executed/completed the work related to boiler maintenance jobs for pressure parts or annual O/H contract for boiler pressure parts in thermal power units of the specified capacity during the last seven years.
2. The petitioner No. 2 contended that he had the requisite qualification and experience himself. He was a partner of a firm which in fact availed his experience and expertise in the field. He further contended that merely because the firm has been dissolved and that he is no longer the partner in the firm it does not follow that he does not have the requisite experience and expertise.
3. The learned counsel appearing on behalf of the petitioners has relied upon the judgement of the Hon'ble Supreme Court in New Horizons Limited and another Vs Union of India and others, 1995(1) SCC 478 and in particular paragraph 23 thereof which reads as under:-
"23. Even if it be assumed that the requirement AMODH SHARMA regarding experience as set out in the 2014.12.19 17:42 I attest to the accuracy and authenticity of this document chandigarh CWP-19544-2014 (O&M) 2 advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself AMODH SHARMA 2014.12.19 17:42 I attest to the accuracy and authenticity of this document chandigarh CWP-19544-2014 (O&M) 3 about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery arid equipment is outdated. Conversely lack of experience may be made good by improved technology arid better equipment. The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4- 1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management AMODH SHARMA 2014.12.19 17:42 I attest to the accuracy and authenticity of this document chandigarh CWP-19544-2014 (O&M) 4 system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India."
He has also relied upon the judgements of the Hon'ble High Courts of Madhya Pradesh, Andhra Pradesh and Chhattisgarh in M/s C.K. Asati Vs Union of India and others, AIR 2005 Madhya Pradesh 96; M/s Avula Constructions Pvt. Ltd. Vs Sr. Division Electrical Engineer Traction Distribution & others, AIR 1999 Andhra Pradesh 318 and M/s Laxmi Construction Co. Vs. State of Chhattisgarh & others, 2012 AIR (Chhattisgarh) 6, respectively.
4. The work order pursuant to the above tenders has already been issued to a third party. In a project of this nature it is not possible to set the clock back as that would also be against the public interest. The petitioner No. 2, however, is at liberty to adopt appropriate proceedings for compensation for damages.
5. The petitioner No. 2 has another apprehension which is well founded. It is that on the basis of the impugned order his future bids will also be rejected.
6. It is ordered that the future bids of the petitioner No. 2 shall not be rejected on the basis that he does not have the requisite qualification without first taking into consideration all the material including that showing him as a partner of any firm produced by him in support of his case that he has the requisite qualification and also without taking into consideration the law including the above judgement of the Hon'ble Supreme Court and that of the Hon'ble High Courts of Madhya Pradesh, Andhra Pradesh and Chhattisgarh respectively.
7. The writ petition is accordingly disposed of.
(S.J. VAZIFDAR) ACTING CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE 17.12.2014 Amodh AMODH SHARMA 2014.12.19 17:42 I attest to the accuracy and authenticity of this document chandigarh