Bombay High Court
Sankalp Recreation Private Limited ... vs Indian Railways Catering And Tourism ... on 8 July, 2021
Equivalent citations: AIRONLINE 2021 BOM 2012
Author: Prithviraj K. Chavan
Bench: K.K. Tated, Prithviraj K. Chavan
8-2552-21-WP=.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2552 OF 2021
Sankalp Recreation Pvt. Ltd.
Through its Authorized Officer
Shri. Aakash G. Makwana .. Petitioners
Vs.
Indian Railways Catering and Tourism
Corporation Ltd. & Ors. .. Respondents
.....
Mr. Tajesh Dande a/w Bharat Gadhavi, Vishal Navale, Aniket Aghade i/b Tejesh Dande and Associates for the petitioners Mr. Amit Sale i/b Consulta Juris for respondent no.1 CORAM : K.K. TATED & PRITHVIRAJ K. CHAVAN, J.J. DATED : 8th JULY, 2021 (VIDEO CONFERENCING) P.C.
1. Heard learned Counsel for the parties.
2. By this petition under Article 226 of the Constitution of India, the petitioners challenges its dis-qualification in the tender process initiated by respondent no.1-IRCTC. The dis- qualification is on the ground that in the packet A - Technical Bid Tender Document, the document mentioned in the list at Annexure-B, Sr. No.12 was not fulfilled namely; balance-sheet and profit and loss account for the Financial Years 2017-18, 2018-19 and 2019-20 were not submitted along with the bid tendered by the present petitioners.
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3. The learned Counsel for the petitioners submits that respondent no.1 - IRCTC invited bids for its e-tender for setting up operation and management of food plaza at Kevadiya Railway Station. As per the eligibility criteria for food plaza at Railway Station, a bidder has to place on record the average annual sale turnover for the last three completed financial years from catering business. Clause 12 of the eligibility criteria for food plaza at Railway Station, reads thus :-
No. Mandatory Criteria Submitted / not submitted
12) Average annual Sales Turn Over in last 2017-18 three completed Financial Years from Rs.________ Catering business in India involving production / sale/service of food items should not be less than the limit indicated below. Trader / stockist / Distributors are not eligible.
2018-2019 Category of Average Annual Sales Rs. _______ stations Turnover per annum B 50 Lakh C 25 Lakh D, E & F 15 Lakh Please enclose -
(i) Certificate of breakup of sales 2019-2020 turnover clearly indicating the sales Rs._______ from Catering business as per "Annexure-B2" for last completed five financial years, duly certified by the Chartered Accountant.
(ii) Also enclose Balance Sheet and Profit & Loss Account of the last three completed financial years duly audited 2 of 6 8-2552-21-WP=.doc by the Chartered Accountant.
Note :- Turnover for the year 2017- 18, 2018-19 and 2019-20 will be considered for calculation of average turnover as desired above. Turnover of 2015-16 and 2016-17 will only be considered to establish that firm is having minimum five years experience in the field of catering / hospitality in India.
4. The learned Counsel for the petitioners submits that inadvertently it remained on their part to comply with clause 12 of the eligibility criteria of food plaza at Railway Station. He submits that as per clause 12, the petitioners had to submit last three completed financial years turnover. He submits that instead of that petitioners have placed on record a Certificate dated 23rd January, 2021 issued by their Chartered Accountants
- Nahta Jain & Associate. He submits that the said Certificate also shows all the information which was required by the respondent no.1 - IRCTC as per clause 12 of the terms and conditions of the tender notice. He submits that inspite of that, the respondent no.1 - IRCTC by their e-mail dated 24 th June, 2021 informed the petitioners that the petitioners' bid has been dis-qualified for the tender invited by the respondent no.1 - IRCTC.
5. The learned Counsel for the petitioners also relies on paragraph 14 of the petition, which reads thus :-
"The petitioner further submits that if 3 of 6 8-2552-21-WP=.doc the above referred two certificates could be uploaded by the present petitioner while submitted its bid on 18.03.2021, then in that event there was absolutely no difficulty on the part of present petitioner to upload the required document i.e. Balance Sheet and Profit and Loss Account for the last 3 completed Financial Years duly audited by the Chartered Accountant. However, the said document could not be uploaded only because of the technical and digital difficulty on the part of the petitioner. The petitioner submits that probably it was inadvertence of the present petitioner, because of which the said mandatory document were not submitted / uploaded on 18.03.2021. The petitioner submits that the said inadvertent mistake or the digital technical difficulty was not even noticed by the present petitioner till the disqualification intimation was received by the present petitioner. As such the said default on the part of the present petitioner is absolutely unintentional and caused because of the inadvertence."
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6. The learned Counsel for the petitioners submits that he received the information that the petitioners are ready and willing to tender atlest 25% more than that of the highest bidder. He submits that in the interest of justice, this Hon'ble Court be pleased to set aside the order dated 24th January, 2021 issued by respondent no.1 - IRCTC thereby dis-qualifying the petitioners from the said tender process. He submits that in any case, the respondent no.1 - IRCTC is going to be benefited if the said order is set aside.
7. On the other hand, Mr. Sale, learned Counsel for respondent no.1 submits that as per the terms and conditions of the tender notice, the petitioners have failed to comply with clause 12 of the said eligibility criteria. Hence, respondent no.1 - IRCTC informed the petitioners that their bid has been dis-qualified for the tender invited by them. There is no question of considering the Certificate dated 23 rd January, 2021 issued by the Chartered Accountant in lieu of documents required as per clause 12. Hence, there is no substance in the present writ petition and the petition is required to be dismissed with costs.
8. In our view, admittedly the petitioners have failed to comply with clause 12 of the terms and conditions of the tender notice. Hence, there is no question of substituting the documents as required under clause 12 by Chartered Accountant's Certificate dated 23rd January, 2021. Hence, we do not find any substance in the present petition.
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9. The petition is dismissed. No order as to costs.
(PRITHVIRAJ K. CHAVAN, J.) (K.K. TATED, J.) 6 of 6