Patna High Court - Orders
Larsen And Toubro Ltd. vs Sjvn Thermal (P) Ltd. And Ors on 2 April, 2019
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4681 of 2019
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Larsen and Toubro Ltd. having its registered office at L and T House, Ballard
Estate, Fort, Mumbai- 400001, through its Joint General Manager-Marketing,
Coal and Construction Projects, Arup Bhattacharya, authorised signatory on
behalf of the company, aged about 50 years (Male), son of Late Nirendra Nath
Bhattacharya, resident of Vadodara, Gujarat
... ... Petitioner/s
Versus
1. SJVN Thermal (P) Ltd. and Ors having registered office at 169 Patliputra
Colony, Patna-800013 (Bihar), India through its Chief Executive Officer,
Buxar Thermal Power Project
2. The Chief Executive Officer SJVN Thermal (P) Ltd., 169 Patliputra Colony,
Patna-800013 (Bihar), India, Buxar Thermal Power Project
3. Head Contracts SJVN Thermal (P) Ltd. Buxar Thermal Power Project, 2nd
floor, Navdurga Complex, Collectariate Road, Ambedkar Chowk, Buxar-
802103, Bihar
4. Bharat Havy Electrical Ltd, (BHEL) through the Chairman-cum-Managing
Director.
5. M/s E-Procurement Technologies Limited, B-704-705, Wall Street II,
Opp. Orient Club, Nr. Gujarat College, Ahmedabad-380006.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Amrendra Saran, Sr.Adv.
Mr. Y.V. Giri, Sr.Adv.
Mr.Ashish Giri, Adv.
Mr. Anshuman Srivastava, Adv.
For the Respondent Nos.1to3: Mr.S.B.Upadhyay, Sr.Adv.
Mr.Mrigank Mauli, Adv.
Mr. Sanket, Adv.
Mr.Prince Kumar Mishra, Adv.
Mr.Sanjay Kr. Adv.
For the Respondent No.4 : Mr.P.K. Shahi, Sr.Adv.
Mr. Vikash Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
4 02-04-2019This Court has benefit of hearing Mr.Amrendra Saran, learned Senior Advocate and Mr. S.B.Upadhayay the another learned Senior Advocate in this case. Mr. P.K.Shahi, the learned Senior Advocate has also addressed this Court and has Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 2/8 taken-up certain issues on behalf of respondent no.4.
The matter has been heard at length.
Apart from his contention that the employer in this case, i.e. respondent nos.1 to 3 would have no power to extend the time for submission of bid after expiry of the prescribed time by way of amendment, Mr.Amrendra Saran, learned Senior Advocate representing the petitioner has also submitted to this Court that what has been stated in amendment 24 and amendment 25 as contained in Annexure '5' and '6' respectively to the writ application that the extension is being granted because the bidders were facing some technical issues are not correct and it was only to favour the respondent no.4, this Court thinks it just and proper as also in tune with some of the judicial pronouncements cited at the Bar to find out the correct position with regard to the technical issues prevailing at the relevant time i.e., on 05.03.2019 before 01:00 P.M. which was the time prescribed for uploading the tender documents.
It is the contention of Mr. Shahi, learned Senior Advocate representing respondent no.4 that in fact the respondent no.4 had registered itself well within the time prescribed in the tender document but was facing certain technical glitches in uploading the documents since 04 th March Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 3/8 itself which were brought to the notice of the service provider.
This Court has also been informed by Mr. S.B.Upadhayay, learned Senior Advocate representing respondent nos.1 to 3 that in fact on 04th March, 2019 the petitioner had also requested respondent nos.1 to 3 to extend the time for submission of the bid for a period of two weeks because they were unable to upload the documents immediately after noticing the amendment effected on 1st March, 2019. It is also contended on behalf of respondent nos.1 to 3 that infact after extension of time the petitioner had visited at least 11 times on the portal and thereby the petitioner had utilized the opportunity granted to all the intending bidders including the petitioner by virtue of the extension of time for submission of bids. Mr. Upadhyay has also relied upon the Judgments of the Hon'ble Supreme Court reported in (2012) 8 SCC 216 (Paragraph 24), (2000) 2 SCC 617, (2016) 16 SCC 818 and (2014) 3 SCC 760 (Paragraph 8 to 12).
Mr. Sahi, learned Senior Counsel, has, at this stage, placed before this Court a Division Judgment of the Hon'ble Delhi High Court in the case of Larsen and Turbo Hydrocarbon Engineering Limited vs. Oil and Natural Gas Corporation Limited and Another to submit that the Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 4/8 Judgment would cover the issues raised in the present writ application.
Mr. Amrendra Saran, learned Senior Advocate has with all humility to the submissions made by his learned colleague submits that the petitioner does not admit the submission of Mr. Upadhyay, learned Senior Counsel for respondent nos. 1 to 3 regarding the 'visiting' of portal by the petitioner during extended time because the fact is that at no point of time any of its officer had altered any of the contents of the tendered document. Learned Senior Counsel submits that the word 'visiting' has to be understood in the context in which it has been provided and unless it is found that the petitioner has altered any of the terms and conditions of the tender document it cannot be allowed to be argued that the petitioner has utilized the extension of time for submission of the bid. It is submitted that on the very next day the petitioner had protested the extension of time granted by respondent nos.1 to 3.
In course of argument, various submissions have been made by the learned Senior Counsel for the parties. While, it is the submission of Mr. Saran, learned Senior Counsel that there are possibilities of interfering with the information furnished by the petitioner in its financial bid and the Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 5/8 respondents may come to know about the price disclosed in the financial bid, it is the submission of Mr.Upadhyay and Mr. Sahi, learned Senior Advocates at the Bar that the 'E-Portal' is security compliant. Reference has also been made to certain frequently asked questions to show that the documents uploaded on the web-site are in encrypted form and unless those are de- crypted and made in readable form after opening of the technical bid, nobody can read it and come to know about its contents thereof. It is also pointed out that the moment anybody would open the bid document of the petitioner, the system will automatically generate an information which will first go to the petitioner showing that his bid document has been seen by somebody. There is no such allegation in the writ petition according to learned Senior Advocate for the respondents.
Mr. Saran, learned Senior Advocate has in course of argument relied upon the Judgment of the Hon'ble Bombay High Court in case of G.K. Transport Company vs. Western Coalfield Limited to submit that there was an identical Clause in the bid document in the said case whereunder the employer could have modified the bid document by issuing addenda before the deadline of the submission of the bid but when the employer extended the time after the deadline for submission of Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 6/8 bids the Hon'ble Bombay High Court did not approve the same. The learned Senior Counsel has also relied upon the Judgment of the Hon'ble Supreme Court in the case of Maharashtra Housing Development Authority vs. Shapoorji Pallonji & Company Private Limited and Ors. reported in 2018 (3) SCC Page 13 to submit that in the said case the time for submission of bid was extended by the employer which was permitted by the Hon'ble High Court but when the Judgment of the Hon'ble High Court was challenged before the Hon'ble Supreme Court the Hon'ble Supreme Court after obtaining a report from the service provider i.e. NIC found that there was no technical glitch in the system and for that reason the Hon'ble Supreme Court took a view that in absence of any technical glitch in the system if the time was extended by the employer contrary to the terms and conditions of the tender then such extension cannot be approved and the Judgment of the Hon'ble High Court was set- aside.
After going through the Judgment of the Hon'ble Supreme Court in the case of Maharashtra Housing Development Authority (Supra), this Court is of the considered opinion that in order to take a view on the correctness of the reasons provided in the amendment as contained in Annexure Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 7/8 '5' and '6' to the writ application it would be appropriate to call upon the service provider in this case i.e. M/s E-Procurement Technologies Limited, B-704-705, Wall Street II, Opp. Orient Club, Nr. Gujarat College, Ahmedabad-380006 to be added as party respondent no.5 in course of the day.
Let the service provider submit a report to this Court within one week from today as to the prevailing technical conditions on 05.03.2019 before 01:00 P.M. The service provider must inform as to whether the reasons shown by respondent nos. 1 to 3 for extension of time by way of amendment 24 and amendment 25 are based on any such technical glitch found on the portal of the employer provided by the service provider. The report shall be submitted in a sealed cover.
Mr. Saran, learned Senior Advocate submits that any report submitted by the service provider be kept open to such submissions which may be made by the parties.
This Court leaves it open for the parties to take all such pleas which may be available to them in respect of the report submitted by the service provider. Mr. Saran has also submitted that even if the report supports the reasons shown in Annexure '5' and '6' the submission of the petitioner remains Patna High Court CWJC No.4681 of 2019(4) dt.02-04-2019 8/8 that in no case the employer could have extended the time for submission of the bid.
Further submission of the parties shall be heard on next date.
Let a certified copy of this order be served upon the service provider by respondent nos.1 to 3 by day after tomorrow.
The Registry shall issue "Dasti Notice" to respondent no.5 requisites for which shall be filed by the learned counsel for the respondent nos.1 to 3 by tomorrow and the "Dasti Notice" shall be made available to the learned Advocate representing the respondent nos. 1 to 3, his junior colleague or the registered clerk by tomorrow evening.
As prayed, list this case under the same heading on 15th April, 2019 at the top.
(Rajeev Ranjan Prasad, J) Arvind/R.R.Ojha-
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