Kerala High Court
Andrew Yule & Company Ltd vs State Of Kerala
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936
WP(C).No. 15435 of 2014 (D)
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PETITIONER :
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ANDREW YULE & COMPANY LTD,
AGOVT. OF INDIA ENTERPRISE
HAVING ITS' REGISTERED OFFICE AT ''YULE HOUSE 8,
DR.RAJENDRA PRASAD SARANI, KOLKATTA -700 001,
REPRESENTED BY ITS PERSONNEL OFFICER,
S.BALASUNDARAM.
BY DR.K.P.SATHEESAN,SENIOR ADVOCATE
ADVS. SRI.M.R.JAYAPRASAD
SRI.P.MOHANDAS (ERNAKULAM)
SRI.ANOOP.V.NAIR
SRI.S.VIBHEESHANAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
2. THE KERALA MINERALS AND METALS LTD,
TITANIUM PRODUCTS UNIT,
SANKARAMANGALAM, CHAVARA, KOLLAM -691 583,
REPRESENTED BY ITS MANAGING DIRECTOR.
3. THE JOINT GENERAL MANAGER (TECHNICAL),
KERALA MINERALS AND METALS LTD.,
TITANIUM PRODUCTS UNIT,
SANKARAMANGALAM, CHAVARA,KOLLAM -691 583.
R1 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE
R2 & R3 BY SMT.LATHA KRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 15435 of 2014 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. COPY OF THE TENDER NO.TP/PROJ/DMS/MPC/002 DATED 15.11.13
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2. COPY OF THE TENDER SUBMITTED BY THE PETITIONER DATED
12.03.14 UPLOADED ON 14.03.14.
EXHIBIT P3. COPY OF THE LETTER GIVEN BY THE AXIS BANK TO THE PETITIONER
DATED 18.03.13.
EXHIBIT P4. COPY OF THE LETTER WRITTEN BY THE SENIOR MANAGER OF THE
AXIS BANK TO THE 2ND RESPONDENT 18.03.14.
EXHIBIT P5. COPY OF THE LETTER WRITTEN BY THE PETITIONER TO THE 2ND
RESPONDENT DATED 18.03.14.
EXHIBIT P6. COPY OF THE LETTER GIVEN BY THE 2ND RESPONDENT TO THE
PETITIONER DATED 2.4.14.
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.S.TO.JUDGE
sts
A.M. Shaffique, J.
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W.P(C) No. 15435 of 2014
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Dated this, the 19th day of June, 2014.
J U D G M E N T
Petitioner has approached this Court inter alia seeking for a relief to participate in the tender process.
2. The facts involved in this writ petition would disclose that the petitioner submitted online tender pursuant to Ext. P1 notice inviting tenders (NIT). As per the conditions in Ext. P1, the requisite Earnest Money Deposit (EMD) has to be paid by way of NEFT cash transfer. Petitioner being a public sector organisation, made arrangements with Axis Bank to remit the said EMD within the specified time. They had credited the said amount, but by mistake through RTGS system of payment. The tender was therefore not accepted. The petitioner therefore immediately corrected the mistake by issuing Ext. P3 through their Bank by remitting the amount of Rs.2,26,520/- through NEFT. This was done on 18.3.2014 whereas the last date for receipt of tender was 15.3.2014. Apparently, 16th and 17th were holidays and therefore no such remittance could be made.
3. Since a mistake was committed, the petitioner submitted a representation to the Managing Director of the 2nd respondent on 19.3.2014 requesting them to receive the remittance through NEFT as a valid EMD and process the W.P(C) No. 15435 of 2014 -: 2 :- tender also. This was followed by another message Ext. P6 by the 2nd respondent intimating the petitioner that nothing can be done in the matter since EMD was not received within time and therefore that tender is not eligible for further evaluation.
4. Learned standing counsel for the 2nd respondent would submit that the tenders are received by the portal managed by the 1st respondent and therefore unless tenders are received through their portal, it may not be possible for the 2nd respondent to evaluate such tenders. As far as the present tender procedure is concerned, technical evaluation is being done and the price bid has not been opened so far.
5. The learned Government Pleader, on instructions, would submit that if the EMD is not remitted in terms with the conditions of NIT, the same will be automatically rejected by the operating system and therefore all tenders received without complying with NIT conditions are rejected. That apart, the terms of the tender clearly indicate that failure to comply with the terms of the NIT will result in rejection of the tender.
6. Having regard to these factual circumstances, it is clear that the petitioner has committed a mistake in remitting EMD. True that as W.P(C) No. 15435 of 2014 -: 3 :- per the terms of NIT, specific instructions had been given to transfer the amounts through NEFT. It is well known that there are different methods to transfer amounts and the Banks shall adopt either RTGS method or NEFT method. Once it is found that there is remittance in a particular form and it was only on account of a mistake that the tenderer had made a deposit opting for a different form, necessarily, some method has to be adopted by the person managing the portal to correct such technical errors/mistakes. Unless such a method is adopted, there is every chance of a tender being not evaluated and it will affect the tender process as well. It is for the State Government to consider such matters in consultation with the portal managing agency and appropriate measures are to be taken in that regard. I am referring to such a procedure on account of the fact that several such instances are coming before this Court by which valid tenders submitted are being rejected on account of some error or mistake in the system not receiving the tender. Such issues are to be corrected. No doubt, if tenderers submit their tenders in terms with the conditions of NIT, there may not be any problem. But, it is usual that some mistake may also occur, which has to be corrected immediately. W.P(C) No. 15435 of 2014 -: 4 :-
7. Under these circumstances, I am of the view that a further opportunity should be given to the petitioner to submit tender, despite the fact that the 2nd respondent contends that there is delay on part of the petitioner in approaching them. The rejection of the tender was communicated to the petitioner on 15.2.2014. But the fact remains that the petitioner has taken up the matter with the 2nd respondent, who ultimately, by Ext. P6, had informed that they are unable to do anything in the matter. Ext. P6 is issued only on 2nd April, 2014. Though there is delay in approaching this Court, the tender evaluation is only beginning. Hence granting an opportunity to the petitioner may not affect any person as such.
8. Under these circumstances, this writ petition is disposed of as under:
(1) The petitioner shall submit a demand draft for EMD before the 2nd respondent on or before 25.6.2014 at 5 p.m. (2) The 1st respondent shall direct National Information Centre, Thiruvananthapuram, who is dealing with the tender process to provide a copy of the tender documents to the 2nd respondent within a period of one week from today.
(3) In that event, the 2nd respondent shall consider the W.P(C) No. 15435 of 2014 -: 5 :- tender of the petitioner in accordance with the procedure.
Sd/- A.M. Shaffique, Judge.
Tds/