Karnataka High Court
Schenck Process India Limited vs Bangalore Metro Rail Corporation on 30 July, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY 2012
BEFORE :
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
WRIT PETITION NO. 26105 OF 2012 (GM-TEN)
BETWEEN:
Schenck Process India Limited
Having its Registered Office at
EM 26, Amit Towers
6th Floor, Salt Lake City
Sector-V
Kolkata - 700 091
By its Business Head Amit Parimoo
Aged about 34 years
... PETITIONER
(BY SRI. A. MURALI,ADV.)
AND:
Bangalore Metro Rail Corporation Limited
A Joint Venture between the Government
Of India and the Government of Karnataka
Having its registered office at
III Floor, BMTC Complex
K.H. Road, Shanthinagar
Bangalore - 560 027
Represented by its Managing Director
... RESPONDENT
(BY M/S. AAREN ASSOCIATES, ADVS)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE RESPONDENT'S LETTER NO.BMRCL/BYP &
PNY/MP-L9/2314 DATED 17.07.2012 (ANNEXURE-F)
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, COURT MADE THE
FOLLOWING:
ORDER
Petitioner has sought for quashing the respondent's letter Annexure-F dated 17.07.2012 by which petitioner is intimated that its offer is rejected and consequently tender documents and bank guarantee are returned to the petitioner by the respondents.
2. The records reveal that the respondents issued Global Tender Notification dated 16.03.2012 inviting suitably qualified Indian and International manufacturers for the Design, Supply, Installation, Testing and Commissioning of two Nos. of Bogi Test Stands subsequently, a corrigendum was issued by the 3 respondent dated 24.05.2012 bringing about certain changes in the earlier tender documents. It interalia provided that the bank guarantee shall be submitted by the intending tenderers with the tender forms and such bank guarantee shall be drawn and payable at Bangalore only.
3. The petitioner submitted its tender documents on 16.07.2012 including the bank guarantee for an amount of Rs.9,00,000/- from the State Bank of Tupudana Branch, Ranchi to the respondent. The bank guarantee submitted by the petitioner was opened along with other bank guarantees submitted by similarly placed firms and found that the bank guarantee submitted by the petitioner's firm was not payable at Bangalore but was payable at Ranchi. Since the bank guarantee submitted by the petitioner did not fulfill the conditions imposed in the tender, the offer of the petitioner was rejected. It is relevant to note that Mr. K.K. Mukherjee, representing another firm, M/S LAN Railtech Private Limited, objected 4 for considering the offer of the petitioner, as tender guarantee was not meeting the requirement of the tender. The endorsement came to be issued as per Annexure-F by the respondent to the petitioner on 17.07.2012 intimating the petitioner that its offer is rejected. The said endorsement has been called in question in this writ petition.
4. Sri. Murali, learned advocate appearing for the petitioner submits that the petitioner submitted the clarification on the evening of 16.07.2012 itself to the respondent as per Annexure-E to the effect that the bank guarantee in question is payable at any branch at Bangalore. According to the petitioner the rejection of the offer of the petitioner is erroneous and the respondent has acted in highly technical manner while rejecting the offer of the petitioner.
5. The writ petition is opposed by Aaren Associates appearing for the respondent by submitting 5 that the bank guarantee submitted by the petitioner was not meeting the requirement of the tender and therefore, it is mandatory on the behalf of the respondent to reject such an offer made by the petitioner.
6. In Clause C 8.1 of the instructions to the tenderers at page No.13 of 30 under the head "Tender Guarantee" of the tender documents, it is clearly mentioned that the bank guarantee accompanying to documents shall be drawn on and payable at "Branch at Bangalore Only." To this effect, an amendment is issued and is reflected at Serial No.15 of the "Item (a)" in corrigendum-01, notification dated 21.05.2012. It is also relevant to note that Clause E.1 specifies :
"Tenders which are not accompanied by a valid Tender Guarantee, or are accompanied by an unacceptable or fraudulent Tender Guarantee shall be considered as non-compliant and rejected. The Tenderer is advised that the Purchaser's policy in respect of comparison of Tenders is that the Technical Package and the envelope of Tender Document and Addenda will be opened and evaluated of only those Tenders, who accompany 6 a valid Tender guarantee. The Tenders of those Tenderers not accompanied by a valid Tender guarantee will be rejected and the corresponding Technical Package, Financial Package and Tender Document and Addenda envelope will be returned unopened."
Thus, it is made clear in the tender documents itself that the tenders which are not accompanied by the valid Tender guarantee or accompanied by unacceptable fraudulent tender guarantee shall be considered non- compliant and are to be rejected. Said procedure is followed in this matter. The copy of the bank guarantee in question is found at Annexure-D to the writ petition. The said bank guarantee nowhere reveals that the bank guarantee in question is drawn on and payable at Bangalore only. On the other hand, the last portion of the bank guarantee discloses that "the bank which has issued bank guarantee is liable to pay the guaranteed amount or any part thereof under the said bank guarantee only and only if the respondent serves upon, the bank, ( i.e.,The State Bank of India, Tupudana Branch, Ranchi) a Written Claim 7 or demand on or before 27.06.2013.", which means the bank guarantee is payable at Ranchi and not at Bangalore. In view of the same, as per Clause E1.1 attached to the Instructions to the Tenderers, the tender of the petitioner was to be rejected as the same was not accompanied by a valid tender guarantee. Accordingly the same is rejected.
7. However, learned advocate for the petitioner submits that clarification is subsequently issued by the Branch at Tupudana Branch, Ranchi at about 5.30 pm on 16.07.2012 to the effect that the bank guarantee in question is payable at any branch at Bangalore in this view of the matter, it is submitted by the petitioner's advocate that the offer made by the petitioner ought to have been accepted atleast after getting the aforementioned clarification as per Annexure-E. Such a submission also cannot be accepted in view of the fact that the entire process of examining the bank guarantee was over within about half an hour from 3.30 pm 8 (Scheduled time) on 16.07.2012 as per the records maintained by the respondent. Since the entire process was over, prior to issuance of clarification by the petitioner to the respondent, it is not open/proper for the petitioner to contend that the respondent ought to have accepted its explanation.
More over, as aforementioned in Clause E1.1, it is specifically stated that the tenders which are not accompanied by a valid bank guarantee shall be considered as non-compliant and shall be rejected. Since the tender in question was not accompanied by a valid tender guarantee submitted by the petitioner, the same is rightly rejected by the respondent. Hence no interference is called for. Petition fails and stands dismissed.
Sd/-
JUDGE Bsv