Karnataka High Court
Fujifilm India Private Limited vs Additional Chief Secretary on 26 September, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.35992 OF 2018(GM-TEN)
BETWEEN:
FUJIFILM INDIA PRIVATE LIMITED.,
LEGACY FIRST FLOOR # 14,
S KARIYAPPA ROAD, SOUTH CROSS ROAD,
BASAVANAGUDI, BENGALURU-560 004.
REPRESENTED BY ITS AUTHORISED SIGNATORY,
MR RAHU KUMAR DEREBAIL,
TERRITORY MANAGER-
SOUTH INDIA-GOVERNMENT SALES.
...PETITIONER
(BY SMT. MEENA VENUGOPAL, ADVOCATE)
AND:
1. ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF MEDICAL EDUCATION,
GOVERNMENT OF KARNATAKA,
BENGALURU-560 001.
2. DIRECTORATE OF MEDICAL EDUCATION
ANAND RAO CIRCLE,
BENGALURU-560 009.
3. KARNATAKA INSTITUTE OF MEDICAL EDUCATION (KIMS)
VIDYANAGAR, HUBBALLI-580 022.
REPRESENTED BY ITS DIRECTOR.
4. CHIEF ADMINISTRATIVE OFFICER
KARNATAKA INSTITUTE OF MEDICAL EDUCATION (KIMS)
VIDYANAGAR, HUBBALLI-580 022.
5. MEDDIFF TECHNOLOGIES PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
SALARPURIA PALLADIUM, 3RD FLOOR, NP 2021,
100 FT ROAD, HAL 2ND STAGE,
2
INDRANAGAR, BENGALURU-560 008.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI.VINOD KUMAR M, AGA FOR R1 & R2;
SRI. RAGHAVENDRA G GAYATHRI, ADV., FOR R3 & R4;
SRI. C K NANDAKUMAR, SENIOR COUNSEL A/W
SMT.VARSHA HITTINHALLI, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 22.05.2018 PASSED BY
APPELLATE AUTHORITY AND ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT OF KARNATAKA, MEDICAL EDUCATION
DEPARTMENT IN APPEAL NO.407/2018 PRODUCED AS
ANNEXURE-A PASSED BY RESPONDENT NO.1.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner-Company, a Class I contractor who had won the bid at the hands of the tendering authority, having been disappointed by its annulment in 5th respondent's Appeal No.407/2018 allowed by the 1st respondent-Government vide order dated 22.05.2018 at Annexure-A, is grieving before the Writ Court. After service of notice, the respondents having entered appearance through their advocates, are resisting the petition making submission in justification of the impugned order.
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2. FACTS IN BRIEF:
(i) The 3rd respondent-KIMS being a Govt.
Medical College and hospital, had called for tender vide Notification dated 14.7.2016 for the supply of PACS System, its accessories and networking items. Both the petitioner & the 5th respondent were the participants in the tender process. Petitioner's bid having been accepted, that of the 5th respondent came to be rejected on the ground that the said respondent had not inter alia furnished Manufacturer's Authorization/Guarantee Form, as prescribed. The acceptance of bid of the petitioner came to be set at naught by the 1st respondent- Government in the subject appeal of the 5th respondent reversing the decision of the Tender Floating Authority. Hence, this petition. Respondent-KIMS and the 5th respondent-Company have filed their separate Statements of Objections, opposing the petition.
(ii) Learned counsel for the petitioner in support of the petition urged that: the opinion of the Tender Awarding Authority could not have been faltered by the Appellate Authority in the fact matrix of the case; appeal 4 of the 5th respondent was incompetent since it was filed after the expiry of limitation period and beyond the condonable limits of delay for filing the same; almost 90% of the tender work having already been accomplished, snatching of the award of tender would cause enormous injustice & a huge loss to her client. Learned Sr. Advocate appearing for the 5th respondent- Company controverts the submission of the petitioners' side; learned Panel Counsel for the KIMS contended in support of his client's decision in appreciable fairness.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter for the following reasons:
(a) The decision to award tender to the petitioner-
company in preference to 5th respondent was taken by the Technical Evaluation Committee comprising of Medical Superintendent Dr.Shivappa, Arunshetru, a Professor & HOD of Radiodiagnosis Dr.G.C.Patil and an Associate Professor of Radiodiagnosis Dr.J.G.Sutagatti of KIMS. The proceedings of the Committee were 5 supervised by the Director of KIMS himself. This decision was taken on 21.06.2017 and web hosted on 18.8.2017. The 5th respondent at paragraph 17 of his appeal memo, admits that this came to its knowledge on 21.8.2017. However, the appeal was filed on 28.11.2017 absolutely with no explanation whatsoever for the delay brooked. Nothing is stated in the appeal memo either, as to how the period of limitation has been reckoned & computed, as rightly argued by learned counsel for the petitioner. Admittedly, the period of limitation is thirty days and the condonable limits of delay was thirty days. The appeal having been filed on 28.11.2017, was hopelessly time barred and even if an application was filed for condonation it would have been beyond the condonable limits of delay as prescribed under the Proviso to section 16 of the Karnataka Transparency in Public Procurements Act, 1999, as it then existed. An appeal instituted after the expiry of condonable limits of delay, is virtually no appeal, subject to all just exceptions into which argued case of the 5th respondent does not fit. The observations of Lord Millet in CAVE vs. ROBINSON JARVIS & ROLF [2002] UKHL 18 are apt in this regard:
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"...The limitation of actions is entirely statutory. The first statute was The Limitations Act 1623. For almost four centuries, therefore, it has been the policy of the legislature that legal proceedings should be brought, if at all, within a prescribed period from the accrual of the cause of action. The statutes of limitation have been described as "statutes of peace".
They are regarded as beneficial enactments and are construed liberally.
6. The underlying policy to which they give effect is that a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal: see Donovan v Gwentoys Ltd [1990] 1 WLR 472. As Best C.J. observed nearly 200 years ago, long dormant claims have often more of cruelty than of justice in them. With the passage of time cases become more difficult to try and the evidence which might have enabled the defendant to rebut the claim may no longer be available. It is in the public interest that a person with a good cause of action should pursue it within a reasonable period..."
Though statues of limitation must be liberally construed is true, such a construction could be undertaken had the appeal been filed within the condonable limits of delay. Since apparently the appeal is filed beyond such condonable limits, the question of liberal construction would not arise.
(b) The vehement contention of learned Sr. Advocate appearing for the 5th respondent that a finding 7 as to appeal being within the limitation period having already been recorded by the Appellate Authority during the pendency of appeal and there being no challenge thereto, cannot be now gone into, is bit difficult to countenance. Ordinarily, all orders made pendente lite can be subject matter of challenge when the main proceedings are terminated and such termination itself is put in challenge in line with what is enacted in the provisions of Order XLIII Rule 1A of Code of Civil Procedure, 1908. The second related contention that the reasons for the rejection of the tender having not been furnished, the appeal could not have been filed, again is bit difficult to agree with, inasmuch as that itself could have been one of the grounds of appeal. The policy of the State as enacted in the provisions of section 16 of the Act have to be borne in mind. The object of prescribing a short limitation period and equally short condonable limits of delay, does not admit contention of the kind at all. An argument to the contrary would defeat the statutory policy that abhors any delay being brooked in matters like this and that is in the public interest. 8
(c) There is force in the submission of learned counsel for the petitioner that rightly or wrongly, the Technical Evaluation Committee comprising of experts and working under the supervision of Director of KIMS have formed an opinion as to Manufacturer's Authorization/Guarantee Form, not being in the prescribed format. Our system has moved from form to substance, is true; even then, in technical matters like this, forms have their own value & sanctity and such form is prescribed keeping the same in mind. Aristotle discusses this aspect of the matter in his Metaphysics, where he argues that form is what unifies some matter into a single object, the compound of the two; he appeals to it in his De Anima, by treating soul and body as a special case of form and matter. If the subject matter of the contract was non-technical and the tenderers were farmers or peasants, perhaps, an argument to the contrary could have been favourably considered. However, that is not the case here. In technical matters like this, the Appellate Authority itself not possessing technical expertise, should yield to the views of institutional decision of the Committee, in the 9 absence of allegations of mala fide or incompetence of the constituent members thereof.
(d) What the Apex Court observed in MONTECARLO LTD. vs. NTPC LTD, (2016) 15 SCC 272 at paragraph 26 as under supports the above view:
"...In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule..."
(e) There is also a lot of force in the passionate submission of learned counsel appearing for the 10 petitioner-Company: the earlier tender notification for the supply of very same commodities/service was issued on 14.7.2016 and petitioner, respondent No.5 & one more tenderer were declared qualified bidders; the petitioner was found to be the lowest bidder who was entitled to award of tender work. However, the said tender was given up whatever be the reasons. The tender was reissued on 13.1.2017, and that too was dropped. The present tender was called vide notification dated 21.06.2017; the technical bids were opened on 15.7.2017 in the presence of authorized representatives of the tenderers; the Tender Evaluation Committee had formally rejected bid of the respondent No.5 on 9.8.2017; the financial bid of the petitioner was opened, price negotiations were conducted on 18.8.2017 and the purchase order was issued to the petitioner on 17.10.2017; petitioner has completed 90% of the work after investing more than a crore rupees, is not disputed by the respondent-KIMS; what remains is a short part of the work and it is so remaining since last about eight years, because of the appeal before the government and later, pendency of this Writ Petition; the tender works of 11 the kind cannot be kept in a limbo causing tremendous hardship to the consumers of medical services i.e., the patients. Added, the technology itself is undergoing a lot of change and prolongation of litigations medical tenders would not augur well to the system. Whatever little more cost required for the accomplishment of the remainder of the work has to be borne by the petitioner himself. Thus, justice of the case warrants invalidation of the impugned order facilitating the accomplishment of such remainder, before long.
In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; the 4th respondent is directed to coordinate with the petitioner in the speediest accomplishment of remainder of the tender work, with the same terms & conditions, as were agreed with no extra cost payable.
Costs made easy.
Sd/-
JUDGE Snb/