Madras High Court
M/S.Tdi International India (P) Ltd vs The Regional Executive Director on 10 December, 2018
Equivalent citations: AIRONLINE 2018 MAD 2085
Author: M.Venugopal
Bench: M.Venugopal, Abdul Quddhose
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.11.2018
Pronounced on : 10.12.2018
CORAM:
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
AND
THE HONOURABLE Mr. JUSTICE ABDUL QUDDHOSE
C.M.P.(MD)Nos.6247 & 6248 of 2018 in
Rev.Aplc.(MD).SR.Nos.13350 & 13352 of 2018 in
W.A.(MD).Nos.1315 & 1380 of 2017
***
M/s.TDI International India (P) Ltd.,
Represented by General Manager (Sales),
Sir Usman Court,
F-6, First Floor, 63, Eldams Road,
Alwarpet, Chennai – 600 018 &
Regd. Office at No.42, Rani Jhansi Road,
New Delhi – 100 055.
... Petitioner in both Petitions
Vs.
1.The Regional Executive Director,
Southern Region, Administrative Building,
Airport Authority of India,
Chennai International Airport,
Chennai – 600 027.
2.The Airport Director,
Airports Authority of India,
Madurai Airport, Perungudi,
Madurai – 625 022. ... Respondents in both Petitions
Prayer: Petitions filed under Section 5 of the Limitation Act praying
to condone the delay of 75 days in filing the Review Applications to
review the Common Judgment dated 13.12.2017 made in W.A.
(MD).Nos.1315 & 1380 of 2017.
For Petitioner : M/s.R.Maheswari
For Respondents : Mr.Isaac Mohanlal, Senior Counsel
For Mr.C.Godwin
http://www.judis.nic.in
2
COMMON ORDER
M.VENUGOPAL, J.
The Petitioner has preferred these C.M.P.(MD)Nos.6247 & 6248 of 2018 praying for passing of an order by this Court to condone the delay of 75 days in filing the Review Applications to review the Common Judgment dated 13.12.2017 passed in W.A. (MD).Nos.1315 & 1380 of 2017.
2.The Petitioner has filed the Review Application (MD)Sr.Nos. 13350 & 13352 of 2018 stating that the an error apparent on the face of record had crept in, in the Common Judgment dated 13.12.2017 in W.A.(MD)Nos.1315 & 1380 of 2017 and further that, the error runs to the following effect:
“b).The Airport Authority of India Limited have also made a counter claim against both the bidding company as well as the associate company running to thousands of crores before the respective arbitral tribunal.” and these had resulted in great hardship and an irreparable loss. http://www.judis.nic.in 3
3.The Learned Counsel for the Petitioner submits that in the Additional Counter Affidavit of the Respondents filed in W.P.No. 12472 of 2017 on the file of the Principal Seat at Madras at paragraph 2, it is, among other things, mentioned that '... It was submitted in para 5 of the counter affidavit that the outstanding overdues, payable by the petitioner in the above writ petitioner and its associate company is approximately estimated to the tune of Rs.
5000 to Rs.7000 Crores. It is an erroneous submission as verified by the Respondents herein. The said mistake of factual errors is purely due to the inadvertence of the Respondents. It is neither willful nor wanton. The outstanding overdue payable by the petitioner and its associate stands approximately more than Rs.200 Crores' and hence, the observation made in the Common Judgment in W.A.(MD).Nos.1315 & 1380 of 2017 to the effect that “b).The Airport Authority of India Limited have also made a counter claim against both the bidding company as well as the associate company running to thousands of crores before the respective arbitral tribunal”, is an error 'Apparent on the Face of Record' which requires to be modified.
4.Continuing further, the Learned Counsel for the Petitioner contends that the Petitioner could have filed the Review Applications only after the filing of the Additional Affidavit dated 27.02.2018 in http://www.judis.nic.in 4 W.P.No.12472 of 2017 by the Respondents (AAI) withdrawing their wrong statement of huge alleged dues of Rs.5000-7000 crores was allegedly due by the Bhadra and the Reply Affidavit dated 14.03.2018 filed by the Petitioner.
5.Moreover, it is represented on behalf of the Petitioner that the Review Applications were filed on 26.03.2018 with a delay of 75 days.
6.In this connection, the Learned Counsel for the Petitioner submits that the term 'Sufficient Cause' should be given a liberal interpretation to ensure that substantial justice is done when no negligence or inaction or want of bona fide is imputable to the party and to lend support to her contention, refers to the decision of the Hon'ble Supreme Court in Ramnath Sao V. Gobardhan Sao & others, (2002) 3 SCC 195.
7.The Learned Counsel for the Petitioner cites the decision in Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam, rep. By its General Secretary, P.Soundarrajan, Chennai and others V. M.R.Srinivasan and others, (2015) 7 MLJ 49 at special page 81 wherein at paragraph 154, it is observed as under:
http://www.judis.nic.in 5 “154.The ground on which the State of Tamil Nadu seeks a review of the order of the Division Bench in W.A.No.180 of 2013, is that some of the documents that would throw light upon the questions involved in the writ petition, were not available at the time when the writ appeal was argued and that those documents could be retrieved from the State Archives only later.”
8.Per contra, it is the submission of the Learned Senior Counsel for the Respondents that the Tender of the Petitioner was rejected for numerous reasons and one of the main reasons was that the Petitioner failed to submit the mandatory Annexure 4 in the prescribed Form No.I and also Annexure 5 in Form No.I in terms of Clause 2.2.1(d) of the RFP and this Court, while allowing the W.A. (MD).No.1315 of 2017 (filed by the Respondents) held that the Associate Company M/s.Bhadra International India (P) Limited was not given exemption from submitting those Annexure in the orders passed by the 'Arbitral Tribunal'.
9.The Learned Senior Counsel for the Respondents contends that the Petitioner, in his Affidavit in C.M.P.(MD).Nos.6247 & 6248 http://www.judis.nic.inof 2018 at paragraph 4, had averred that '... In W.P.No.12472 of 6 2017, in respect of Chennai Airport Tender, the Respondents had specifically pleaded that it's alleged Associate Company, Bhadra owed dues to the tune of Rs.5000 Crores to Rs.7000 Crores' etc., is without substance, since the said averments are in respect of an Additional Counter Affidavit of the Respondents to W.P.No.12472 of 2017 with an entirely different Tender, that too in respect of another Airport viz., Chennai Airport.
10.The Learned Senior Counsel for the Respondents comes out with a plea that the Outstanding Dues Certificates for Bhadra International India (P) Limited in respect of Calicut, Magalore, Kolkata, Trichy, Trivandrum, Chennai and Coimbatore Airports (dated 24.01.2018, 29.01.2018, 30.01.2018, 30.01.2018, 31.01.2018 & 31.01.2018 respectively) were given in January, 2018, pertains to undisputed amount(s), long after publication of Tender in dispute published in February, 2017 for advertising rights in the Madurai Airport.
11.Lastly, it is the submission of the Learned Senior Counsel for the Respondents that the Petitioner has not assigned any cause much less substantial cause for the occurrence of delay of 75 days in filing the two Review Petitions. As such, the Condonation of Delay Petitions are not maintainable. In any event, the second Review http://www.judis.nic.in 7 Petitions are not maintainable in Law, because of the fact that no fundamental error had crept in, in the Common Judgment passed by this Court on 13.12.2017 in W.A.(MD).Nos.1315 & 1380 of 2017.
12.The Learned Counsel for the Respondents cites the decision in TDI International India (P) Ltd. V. Airport Director, Airports Authority of India and another, 2018 (2) CTC 481 at special page 483, it is, among other things, observed that '.... The Petitioner, as a Intending Bidder, has no right to contend that the Terms and Conditions of the Contract should be in such a way which will suit them. If some of the conditions are not suitable for the Petitioner, they can very well keep away from the participation in the Tender Process as nobody is compelling them to take part'.
13.Also, on the side of the Respondents, it is brought to the notice of this Court that W.A.No.978 of 2018 [filed by the Petitioner] against the order in W.P.No.12472 of 2017 was dismissed by this Court on 28.04.2018. Further, it is represented that Re-tender was called for pursuant to the orders of the Learned Single Judge and the tender was awarded to the highest bidder and that the Petitioner filed W.P.No.1836 of 2018 before this Court challenging the same.
http://www.judis.nic.in 8
14.As far as the present C.M.P.(MD)Nos.6247 & 6248 of 2018 are concerned, the Petitioner has come out with a reason that the Respondents having filed an Affidavit in W.P.No.12472 of 2017 admitted only on 27.02.2018 for Rs.200 Crores is the only amount of disputed dues and that the 'Nil Undisputed Outstanding Dues Certificates' were issued only now, the present Review Applications have been filed with a delay of 75 days based on extraordinary change in circumstances.
15.It is to be pointed out that this Court, on 13.12.2017, in W.A.(MD).No.1380 of 2017 (filed by the Petitioner as Appellant) and W.A.(MD).No.1315 of 2017 (filed by the Respondents as Appellants), had held that '(i) The Associate Company Bhadra International (India) Private Limited is not exempted from submitting the forms and annexures required under the terms and conditions of the tender by virtue of the orders passed by the arbitral tribunal. (ii)The decision of the respondents by the impugned letter 15.06.2017 does not suffer from arbitrariness, irrationality, bias, mala fides and perversity' etc. and dismissed the W.A.(MD).No.1380 of 2017 (filed by the Petitioner) and allowed the W.A.(MD).No.1315 of 2017 (filed by the Respondents). http://www.judis.nic.in 9
16.The Petitioner viz., M/s.TDI International India (P) Limited filed Petition for Special Leave to Appeal (C) No(s).2637-2638/2018 as against the Common Judgment dated 13.12.2017 in W.A. (MD).No.1380 & 1315/2017 before the Hon'ble Supreme Court of India and the same was dismissed on 05.02.2018.
17.It transpires that the Petitioner filed Review Application(MD).Nos.1 & 2 of 2018 in W.A.(MD).Nos.1315 & 1380 of 2017 and the Review Applications were dismissed by this Court on 05.02.2018, since both parties had admitted that the aforesaid SLPs were dismissed by the Hon'ble Supreme Court.
18.In any event, the observations made by this Court in para 58 of the Common Judgment in W.A.(MD).Nos.1315 & 1380 of 2017 dated 13.12.2017 to the effect that '(b).The Airport Authority of India Limited have also made a counter claim against both the bidding company as well as the associate company running to thousands of crores before the respective arbitral tribunal', are not a cementing platform/lever so as to enable the Review Applicants to file the present Review Applications and in short, the said observations would not alter the resultant Judgment passed by this Court.
http://www.judis.nic.in 10
19.At this stage, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in K.G.Arumugham and others V. K.A.Chinnappan and others, (2005) 2 Supreme Court Cases 793 wherein it is held that 'The High Court could not virtually review its earlier order as second review was not permissible'. Moreover, in the said decision, it was observed that 'High Court cannot sit in appeal over an earlier order passed by it in the same matter which had already attained finality'.
20.Further, this Court aptly points out the decision of the Hon'ble Supreme Court in M.Satyanayana Murthy and others V. Mandal Revenue, Officer-cum-Land Acquisition Officer, (1998) 7 Supreme Court Cases 445 wherein it is observed as under:
“There is a delay of 2 years and 321 days in filing this review petition.
The explanation for the delay contained in the application seeking condonation of delay is wholly unsatisfactory and not at all reasonable. Besides, we also find that the petitioners had filed earlier also a Review Petition No.214 of 1995 against the same order which was dismissed by this Court on 22.2.1995.
Both in the Memorandum of the review petition and in the application seeking condonation of delay, though this fact is mentioned, but the number of the review petition has been left blank and http://www.judis.nic.in so also the date on which the same was 11 dismissed. This shows the casual manner in which this second review petition has been filed. Recourse to successive review petitions against the same order is not permissible more so because no error apparent on the record has been brought out. It appears to us that the petitioners are unnecessarily taking liberties. The filing of the second review petition is an abuse of the process of the Court.” and the Petition was dismissed with costs.
21.It must be borne in mind that the term 'Sufficient Cause' is a condition precedent for exercise of Judicial Discretion by a Court of Law for excusing the delay in question.
22.It is to be remembered that when the delay is not properly, convincingly and satisfactorily explained, then, the Court concerned is not to condone the delay purely on sympathetic ground. However, if the Court finds that the explanation offered by the concerned Party/Litigant is not a bona fide one or he is thoroughly negligent in prosecuting his case/cause, then, the delay cannot be condoned by exercising discretion.
23.As a matter of fact, if the explanation offered is a concocted/created/fanciful or whimsical, then, a Court of Law is to http://www.judis.nic.in 12 be very careful in not exposing the other side to face an unnecessary and futile ligation. One is to bear in mind the Maxim 'dura lex sed lex' meaning 'the Law is Hard but it is the Law' which is to be applied in a given case.
24.It is to be noted that the whole gamut of facts are to be scrutinised with utmost care and caution and the approach ought to be based on 'paradigm of judicial discretion' rested on objective reasoning and not on perception will squarely depend on the bona fide character of the explanation tendered by a party and in this regard, a 'Court of Law' can get into the factual details of a particular case.
25.The well settled legal principle is that 'Rehearing' of every matter under the guise of 'Review' power is not a matter of course and that a matter which had attained finality cannot be resurrected unless a clear and categorical case is made out. Review of an Order cannot be acceded to under the cover of 'Clarification'. A Review Petition has a restricted purpose and cannot be permitted to act as an 'Appeal' in disguise. That apart, 'Re-arguments' in a case are not permissible in 'Review'.
http://www.judis.nic.in 13
26.On a careful consideration of respective contentions and also this Court, considering the cumulative attending facts and circumstances of the subject matter in issue, comes to an inescapable and irresistible conclusion that the reasons offered by the Petitioner that the Respondents had filed an Additional Counter Affidavit in W.P.No.12472 of 2017 admitting only on 27.02.2018 that Rs.200 Crores only amount of disputed dues and that 'Nil Undisputed Outstanding Dues Certificates' were issued only now, for the delay of 75 days that has crept in filing the Review Petitions are not bona fide and further, they do not come within the ambit of the term 'Sufficient Cause' to satisfy the subjective conscience of this Court. Viewed in that perspective, this Court is not inclined to exercise its discretion to extend its arm of Judicial Generosity, in condoning the delay in question. Consequently, the Civil Miscellaneous Petitions fail.
27.In fine, the C.M.P.(MD).Nos.6247 & 6248 of 2018 are dismissed, leaving the parties to bear their own costs.
(M.V. J.) (A.Q., J.)
10.12.2018
Speaking Order
Index :Yes
Internet :Yes
Sgl
http://www.judis.nic.in
14
M.VENUGOPAL, J.
And
ABUDL QUDDHOSE, J.
Sgl
To
1.The Regional Executive Director,
Southern Region, Administrative Building, Airport Authority of India, Chennai International Airport, Chennai – 600 027.
2.The Airport Director, Airports Authority of India, Madurai Airport, Perungudi, Madurai – 625 022.
Order in C.M.P.(MD)Nos.6247 & 6248 of 2018 in Rev.Aplc.(MD).SR.Nos.13350 & 13352 of 2018 in W.A.(MD).Nos.1315 & 1380 of 2017 10.12.2018 http://www.judis.nic.in