Madhya Pradesh High Court
M/S Ranu Enterprises A Partenrship Firm ... vs The State Of Madhya Pradesh on 20 November, 2019
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court Of Madhya Pradesh
WP-14434-2019
(M/S RANU ENTERPRISES A PARTNERSHIP FIRM THR. SHRI A.L. YADAV Vs STATE OF M.P. & ORS.)
Gwalior, Dated: 20.11.2019
Shri Prashant Sharma, learned counsel for the petitioner.
Shri Ankur Mody, learned Additional Advocate General for the
respondents/State.
Writ jurisdiction of this court under Article 226 of the Constitution of India is invoked seeking following reliefs :
"i- Respondents may kindly be directed to execute the agreement with the petitioner firm.
ii- The respondents may kindly be further directed to supply the copy of single line diagram and a copy of sanctioned estimate of MPMKV Co. Ltd. prior to entering into agreement. iii- The respondents may kindly be directed not to issue fresh tenders and may kindly be further directed that encahsed FDR may kindly be treated as EMD.
Alternatively prayed that respondents may kindly be directed to refund the amount of EMD with interest.
Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may kindly be granted to the petitioner."
The grievance of petitioner as projected in the present case is that after his bid for the work of 'providing street lights on ROB from Yadav Dharmkanta to Shatabdipuram, Gwalior' was found to be lowest and suitable, Letter of Acceptance vide Annexure P-3, dated 31.01.2019, was issued granting 15 days time from the date of issue of the letter for ensuring the following :
"You are requested to submit within 15 (fifteen) days from the date of issue of this letter :
a. The performance Security of Rs. 127751/- only (i.e. Rs. One 2 The High Court Of Madhya Pradesh WP-14434-2019 (M/S RANU ENTERPRISES A PARTNERSHIP FIRM THR. SHRI A.L. YADAV Vs STATE OF M.P. & ORS.) Lac Twenty seven Thousand Seven Hundred Fifty One Only) and Add. Performance guarantee of Rs. 351316/- (Rs. Three Lacs Fifty One Thousand Three Hundred Sixteen Only) in the shape of deposit receipt/bank guarantee of any nationalized/schedule commercial bank valid up to 12 Month.
b. Sing the contract agreement."
When the aforesaid two conditions were not complied with, a letter of extension vide Annexure P-4 dated 18.02.2019 granting further 7 days time to complete the formalities as contained in Annexure P-3 was issued.
Petitioner, thereafter, vide Annexure P-5 filed reply that SLD of site plan, SLD/Estimate of MPMKVV Co Ltd., name of person who will supervise the work from PWD Department or from MPMKVV Co. Ltd. be furnished to the petitioner to enable him to take further steps. Thereafter, vide Annexure P-6 dated 02.03.2019, another three days was granted to the petitioner to complete the formalities contained in Annexure P-3.
Petitioner submitted detailed reply Annexure P-7 dated 05.3.2019, whereby petitioner has raised various issues including that of non-payment of certain dues arising out of earlier contracts undertaken by him with the respondents. It is submitted that thereafter like the bolt from the blue, order dated 12.03.2019 was issued by the Executive Engineer, Public Works Department (Electrical/Engineering), Division Gwalior, forfeiting the FDR qua EMD in terms of clause 17.6 of the instructions to bidder (ITB) 3 The High Court Of Madhya Pradesh WP-14434-2019 (M/S RANU ENTERPRISES A PARTNERSHIP FIRM THR. SHRI A.L. YADAV Vs STATE OF M.P. & ORS.) attached to NIT.
Learned counsel for the petitioner submits that in absence of SLD (Single Line Diagram) provided by the company, petitioner cannot start his work, and thus, the order of forfeiture of the earnest money deposited is unlawful.
It is seen from the record that vide the Letter of Acceptance dated 31.01.2019, the petitioner had to submit, within 15 days starting from 31.01.2019, performance security of Rs. 127751/- and additional performance guarantee of Rs. 351316/-, by way of deposit receipt/bank guarantee of nationalized/schedule commercial bank valid for 12 months and to sign contract agreement.
The Letter of Acceptance (Annexure P-3) also contains following stipulations :
"Signing the contract agreement shall be reckoned as intimation to commencement of work and no separate letter for commencement of work is required. Therefore, after signing of the agreement, you are directed to contact the Engineer-in-charge for taking the possession of site and necessary instructions to start the work."
Meaning thereby that after completion of the aforesaid two pre- requisites within 15 days, the petitioner was directed to get in touch with Engineer-in-charge for taking possession of site and necessary instructions.
Petitioner neither made the deposits nor signed the agreement within 15 days starting from 31.01.2019. The respondent granted 7 4 The High Court Of Madhya Pradesh WP-14434-2019 (M/S RANU ENTERPRISES A PARTNERSHIP FIRM THR. SHRI A.L. YADAV Vs STATE OF M.P. & ORS.) further days to the petitioner starting from 18.02.2019 vide Annexure P-4. The petitioner continued to make representation seeking certain site plans and estimate but did not make the necessary deposit and sign the agreement. The respondents, despite expiry of aforesaid original time period, granted further period of three days vide Annexure P-6 dated 02.03.2019, which expired on 05.03.2019. It seems that petitioner has made no efforts to make the necessary deposit and to sign the contract by 05.03.2019 in terms of Letter of Acceptance (Annexure P-3), thereby compelling the respondents to forfeit the earnest money furnished along-with the tender in terms of clause 17.6 of the instructions to bidder appended to NIT :
"17.6 Failure to sign the contract by the selected bidder, within the specified period, for whatsoever reason, shall result in forfeiture of the earnest money deposit."
The aforesaid instructions appended to the NIT under clause 23.3 further empowers the respondents to forfeit EMD in the event of failure of successful bidder to submit performance security and additional performance security. Clause 23.3 of the said instructions is reproduced below :
"23.3 In the event of failure of the successful bidder to submit Performance Security and additional performance security, if any or sign the Contract Agreement, his EMD shall stand forfeited without prejudice to the right of the employer for taking action against the bidder."5
The High Court Of Madhya Pradesh WP-14434-2019 (M/S RANU ENTERPRISES A PARTNERSHIP FIRM THR. SHRI A.L. YADAV Vs STATE OF M.P. & ORS.) This Court while exercising the powers of judicial review cannot enter into the administrative domain of consideration and acceptance of tender and the steps taken thereafter, especially in the absence of malafides, arbitrariness, irrationality and unreasonableness. [Please see : Municipal Corporation, Ujjain and Another Vs. BVG India Limited And Others, (2018) 5 SCC 462]. None of these grounds are made out in the present petition.
In Municipal Corporation, Ujjain (Supra), it has also been held:
"42. That the authorities should be given latitude in making a decision on the offers was also observed in Sterling Computers Ltd. v. M & N Publications Ltd. (1993) 1 SCC 445. Therein, the Court observed that any judicial interference amounts to encroachment on the exclusive right of the executive to take a decision."
In absence of any ground made out for interference in the limited power of judicial review, this Court declines interference.
Consequently, petition stands dismissed.
The dismissal of this petition shall not come in the way of petitioner to agitate any of his civil rights, if available before the civil Court, in accordance with law.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
Judge Judge
Aman
Aman Tiwari
2019.11.27 18:00:50 +05'30'