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Allengers Medical Systems Limited vs Union Of India & Anr on 10 April, 2023

Author: Satish Chandra Sharma

Bench: Chief Justice, Subramonium Prasad

                          $~73
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    W.P.(C) 14261/2022
                               ALLENGERS MEDICAL SYSTEMS LIMITED ..... Petitioner
                                                   Through:     Mr. Vineet Jhanji and Mr. Imran
                                                                Mouley, Advocates.
                                                   versus

                                UNION OF INDIA & ANR.                              ..... Respondents
                                                   Through:     Mr. Vikram Jetly, CGSC with Mr.
                                                                Rishesh Mani Tripathi, GP for
                                                                Respondent/UOI.
                                CORAM:
                                HON'BLE THE CHIEF JUSTICE
                                HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
                                                   ORDER

% 10.04.2023 REVIEW PET. 89/2023

1. The Petitioner seeks review of the Judgment dated 21.03.2023 passed by this Court in W.P.(C) 14261/2022. This Court by the Judgment, which is under review, had dismissed the writ petition.

2. Respondent No.1 had issued a Notice Inviting Tender under the aegis of the Ministry of Defence for procurement of 32 pieces of C-Arm Fluoroscope X-Ray Machines. The Petitioner was one of the bidders and its bid was rejected while the bid of the Respondent No.2 had been accepted. Challenging the rejection of the bid of the Petitioner and the acceptance of the bid of the Respondent No.2, the Petitioner filed the writ petition, i.e., W.P.(C) 14261/2022.

3. This Court by Judgment dated 21.03.2023, which is under review, held that the decision taken by Respondent No.1 in rejecting the bid of the Petitioner does not require any interference. This Court held that the Signature Not Verified Digitally Signed REVIEW PET. 89/2023 Page 1 of 6 By:RAHUL SINGH Signing Date:13.04.2023 18:05:02 Petitioner, despite being fully aware that a 16-bit camera was required as per the tender document, had offered a 14-bit camera, and this deviation had rightly been rejected by Respondent No.1. This Court also held that the startup time of the machine offered by the Petitioner was 46 seconds which was more than the prescribed time stipulated under the tender which was about 40 seconds.

4. In the present Review Petition i.e., Review Petition No.89/2023, the primary challenge is to the acceptance of the bid of the Respondent No.2. It is the contention of the Petitioner that the product which was offered finally by the Respondent No.2 was not the same as that product which had been offered along with the bid document.

5. It is the categorical opinion of this Court that once the Petitioner's product did not qualify for being considered and its bid had not been accepted then this Court did not pass any finding regarding the acceptability of the product offered by the Respondent No.2.

6. It is the further contention of the Petitioner that M/s Unique X-ray House, one of the disqualified bidders, had offered a KIRAN ELITE machine which was rejected while the same machine offered by Respondent No.2 which was also a KIRAN ELITE machine has been accepted. It has been emphatically stated by the Petitioner that this point was urged before this Court while arguing the matter but the same has not been considered by this Court. The submission made by the Petitioner is prima facie wrong. Paragraph No.4 of the Judgment, which is under review, notes the contention of the Petitioner which reads as under:

"4. The learned Counsel for the Petitioner argues that Rule 173 (iv) of the General Financial Rules, 2017 dictates for reasons to be disclosed for rejecting a tender or non-issuing a tender document. He states Signature Not Verified Digitally Signed REVIEW PET. 89/2023 Page 2 of 6 By:RAHUL SINGH Signing Date:13.04.2023 18:05:02 that this Rule has been violated by the Respondent No.1 by passing a non-speaking order to the Petitioner‟s query dated 31.03.2022. He further states that by having only two bidders in the Financial Bid round closes the scope for competition and that the Respondent No.1 should have opened Technical Bids against to give opportunities to other participants. Mr. Jhanji states before this Court that Respondent No.2 had bid the model KIRAN ELITE which was accepted. However, the same make and model was also bid by another bidder, namely M/s Unique X-ray House and the same was rejected. He states that this points towards discrepancy in the demonstration and selection process."

7. In any event, this argument holds no merit because the Petitioner was only concerned with the acceptance of its bid. Secondly, in any event, it is a categorical stand of the Respondent No.1 that the KIRAN ELITE machine which has been offered by M/s Unique X-ray House is operated manually whereas the KIRAN ELITE machine which has been offered by Respondent No.2 is motorized with an option of upgradability to digital subtraction of angiography and peripheral angiography.

8. The tender was floated for the purpose of defence services and the same has been scrutinized by the experts. It is well settled that Courts do not sit over the opinion of the experts. The court should be slow to interfere with the opinion expressed by the experts and it would normally be wise and safe for the courts to leave the decisions to experts who are more familiar with the problems which they face than the courts generally can be, which has been the consistent view taken by this Court [Refer to: University of Mysore vs. CD Gowinda, (1964) 4 SCR 575, G. Sundarranjan vs. Union of India, (2013) 6 SCC 620 and DDA vs Rajendra Singh, (2009) 8 SCC 582].

9. It is also well settled that the scope of review is extremely limited and must only be allowed if there is an error apparent on the face of the record, or if there is any new or important evidence that is discovered by the Applicant which was not in its knowledge and thus could not be provided when the decree was passed despite conducting due diligence. It must, under no circumstances, be an appeal in disguise. The Apex Court in Haridas Das v. Usha Rani Banik, (2006) 4 SCC 78 has observed as under:

13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.

This Court in Thungabhadra Industries Ltd. v. Govt.

of A.P. [(1964) 5 SCR 174 : AIR 1964 SC 1372] held as follows : (SCR p. 186) "[T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by „error apparent‟. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. ... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

10. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, the Apex Court has held as under:

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in AribamTuleshwar Sharma v. AribamPishak Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] speaking through Chinnappa Reddy, J. has made the following pertinent observations:

„It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and Signature Not Verified Digitally Signed REVIEW PET. 89/2023 Page 5 of 6 By:RAHUL SINGH Signing Date:13.04.2023 18:05:02 palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.‟ "

(SCC pp. 172-73, para 8)

11. In addition to the writ petition being an abuse of the process of law, the instant review petition is also an abuse of the process of law. In view of the fact that the Petitioner is already saddled with the costs of Rs.50,000/-, this Court is not inclined to impose further costs for filing the instant review petition which is a wastage of precious judicial time.

12. The review petition is dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J APRIL 10, 2023 S. Zakir Signature Not Verified Digitally Signed REVIEW PET. 89/2023 Page 6 of 6 By:RAHUL SINGH Signing Date:13.04.2023 18:05:02