Patna High Court
M/S Balaji Enterprises (A S.S.I. Unit ... vs North Bihar Power Distribution Company ... on 13 July, 2022
Author: Rajan Gupta
Bench: Rajan Gupta, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14888 of 2021
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M/s Balaji Enterprises (A S.S.I. Unit registeted in the State of Bihar),
aproprietorship firm, having its Office at Babu Bazar, Ara (Bhojpur), P.O. and
P.S. Ara, District-Ara, State of Bihar, through its Authorized Signatory,
namely, Pawan Kumar Singh, aged about 35 Years, Son of Ajit Kumar Singh,
Resident of Bindaul, Patna, P.O. Bindaul, P.S. Bihta, District Patna, BIhar-
801112.
... ... Petitioner/s
Versus
1. North Bihar Power Distribution Company Limited (A Company of Bihar
Undertaking), through its Managing Director, Having its registered Officer
at Vidyut Bhawan, Bailey Road, P.O. and P.S. Bailey Road, District Patna,
State of Bihar.
2. Chief Engineer Store and Purchase, North Bihar Power Distribution
Company Limited, having its registered Office at Vidyut Bhawan, Bailey
Road, P.O. and P.S. Bailey Road, P.O. and P.S. Bailey Road, District Patna,
State of Bihar.
3. Senior Manager (Finance), North Bihar Power Distribution Company
Limited, having its registered Office at Vidyut Bhawan, Bailey Road, P.O.
and P.S. Bailey Road, District-Patna, State of Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Apurva Kumar, Senior Advocate
For the Respondent/s : Mr.Vinay Kirti Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJAN GUPTA
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJAN GUPTA)
Date : 13-07-2022
1. The present writ petition has been filed for
quashing the Office Order dated 05.08.2021 to the extent
that the petitioner has been suspended for 03 years from
participating in future tenders of North Bihar Power
Distribution Company Limited (hereafter referred to as the
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"NBPDCL").
2. The short facts of the case are the North Bihar
Power Distribution Company Limited issued a notice
inviting tender bearing N.I.T. no. 14/PR/ NBPDCL/2021,
inviting tender from eligible and experienced original
manufacturers for procurement of DPC Aluminum Winding
Wire of various sizes. The estimated cost of materials to be
supplied was specified at a sum of Rs. 10,75,45,200/-. The
petitioner had also participated in the said tender along with
06 other Bidders.
3. The learned Senior Counsel for the petitioner
has submitted that inadvertently, in the price bid format, unit
for submission of the price, which though was prescribed as
Metric Ton but the petitioner had quoted price in terms of
Kg. on account of confusion and there being ambiguity in
the Tender Document itself, inasmuch as on one hand, the
quantity to supplied was specified in the Tender Document
in the unit of Kg., however in the Price Bid Format, the unit
for submission of the price was prescribed as Metric Ton.
4. It is on account of the aforesaid mistake made by
the petitioner in the Price Bid i.e. quoting its price per Kg.
Patna High Court CWJC No.14888 of 2021 dt.13-07-2022
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instead of per Metric Ton, the petitioner has been suspended
from participating in future tenders of NBPDCL for 03 years
as also its Bid has been disqualified.
5. The learned Senior Counsel for the petitioner
has submitted that one Metric Ton is equivalent to 1000 Kg.
and on bare perusal of the Price Bid of the petitioner, it is
apparent that the price quoted by the petitioner was in the
Unit of Kg. and not in the unit of Metric Ton since the price
offered by the petitioner of Rs. 300.31 can, by no stretch of
imagination, be the price of supply of one Metric Ton
quantity of DPC Aluminum Winding Wire. It is also
submitted that if the price quoted by the petitioner is taken to
be the price in Metric Ton, then the total price quoted by the
petitioner for supply of 434 Metric Ton of DPC Aluminum
Winding Wire would add upto a meagre sum of Rs.
1,30,334/- instead of a sum of Rs. 10,75,45,200/-, thus the
afore-said facts cumulatively demonstrates that the price
which was quoted by the petitioner, on the face of it, was in
the unit of "Kg." and not in the unit of "Metric Ton".
6. The learned Senior Counsel for the petitioner
has also submitted that the Price Bids were opened by the
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respondents on 22.07.2021 and the petitioner, realizing the
aforesaid mistake committed on account of inadvertence to
the effect that it had quoted the price in the unit of "Kg."
instead of "Metric Ton", immediately apprised the
respondent no. 2 vide letter dated 23.07.2021 and had sought
correction of the said clerical error, however, no heed was
paid to the same and instead, by the impugned order dated
05.08.2021, not only the petitioner has been suspended for 03 years from participation in future tenders of NBPDCL, for gross violation of Clause 1.10(d) of the N.I.T. but its Bid has also been disqualified. In this regard, it is also submitted by the learned Senior Counsel for the petitioner that Clause 1.10(d) of the N.I.T. is not applicable in the present case, inasmuch as the same pertains to withdrawal or modification of Bid after Bid submission date and time, during Bid validity period, which shall result in suspension of the Bidder for 3-5 years, whereas, in the present case, neither the petitioner had sought to withdraw its bid nor had sought any modification of its Bid but had only clarified that the price quoted by the petitioner should be treated to be in the unit of "Kg." and not in the unit of "Metric Ton". It is also Patna High Court CWJC No.14888 of 2021 dt.13-07-2022 5/7 submitted that such action on the part of the NBPDCL in suspending the petitioner for 03 years is not only violative of Articles 14 and 19(1)(g) of the Constitution of India but also contrary to the terms and conditions of the N.I.T. as also entails civil consequences and severe financial loss qua the petitioner herein.
7. Per contra, the learned counsel for the respondent NBPDCL has though supported the impugned order dated 05.08.2021 and has opposed the present writ petition tooth and nail, however, it is submitted that the respondent- NBPDCL is not averse to the idea of re- considering the case of the petitioner, as far as its suspension is concerned, in case this Court directs the NBPDCL to do so.
8. At this juncture, the learned Senior Counsel for the petitioner has fairly submitted that by efflux of time, the grievance of the petitioner regarding disqualification of its Bid has become redundant.
9. We have heard the learned counsel for the parties and from the pleadings as also from the impugned order dated 05.08.2021, we find that the respondent- Patna High Court CWJC No.14888 of 2021 dt.13-07-2022 6/7 NBPDCL has failed to consider the aforesaid aspect of the matter, as has been raised by the learned Senior Counsel for the petitioner to the effect that Clause 1.10 (d) of the N.I.T. is not applicable in the present case, inasmuch as neither the petitioner had sought to withdraw its Bid nor had sought to modify the same but had merely clarified that the price quoted by it should be treated in the unit of "Kg." instead of "Metric Ton", however the respondent authority of NBPDCL has, on the contrary, considered the request of the petitioner made vide letter dated 23.07.2021 to be a request for change in price of the bid tentamounting to modification of the Price Bid. We also find that since such order of blacklisting/ suspending the petitioner from participating in future tender of NBPDCL entails grave civil consequences, it would be apt that the respondent authorities once again reconsider the aforesaid defense put forth by the petitioner especially in view of the fact that the respondents have taken a very hypertechnical view of the matter and it may be possible than an inadvertent error has been made by the petitioner while submitting its Bid, thus we deem it fit and proper to quash the impugned order dated 05.08.2021, issued by the Patna High Court CWJC No.14888 of 2021 dt.13-07-2022 7/7 Chief Engineer (Store & Purchase), North Bihar Power Distribution Company Limited, Patna, to the extent decision has been taken to suspend the petitioner for 03 years from participating in future tenders of NBPDCL and remit the matter back to the same authority for a decision afresh, which shall be taken after grant of an opportunity of hearing to the petitioner/ its representative.
10. The writ petition stands allowed to the aforesaid extent.
(Rajan Gupta, J) ( Mohit Kumar Shah, J) rinkee/-
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