Kerala High Court
M/S.Tdi International India (P) Ltd vs The Airports Authority Of India on 22 October, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940
WP(C).No. 26353 of 2017
PETITIONER:
M/S.TDI INTERNATIONAL INDIA (P) LTD.,
REPRESENTED BY PHILIP K.JOSEPH,
BRANCH HEAD,HAVING OFFICE AT KADAVANTHARA,
ERNAKULAM, KERALA STATE AND REGD. OFFICE AT NO.42,
RANI JHANSI ROAD, NEW DELHI-110 055.
BY SRI.P.RAVINDRAN,SENIOR ADVOCATE
ADV.SRI.N.S.DAYA SINDHU SHREE HARI
RESPONDENT(S):
1. THE AIRPORTS AUTHORITY OF INDIA,
REP. BY ITS REGIONAL EXECUTIVE DIRECTOR,
SOUTHERN REGION, ADMINISTRATIVE BLDG.,
CHENNAI INTERNATIONAL AIRPORT,
CHENNAI-600 027.
2. THE AIRPORT DIRECTOR,
TRIVANDRUM INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM-695 008.
3. M/S.SHRISHTI COMMUNICATIONS,
1218/18, 34TH CROSS ROAD, 28TH MAIN JAYANAGAR,
4TH T BLOCK, BANGALORE-560 041.
R1 & R2 BY SMT.O.M.SHALINA, CGC
R3 BY ADVS.SRI. S.VIJAYAKUMAR
SRI.DINESH THANKAPPAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31-05-2018, ALONG WITH WP(C) NO.14098/2018 AND
WP(C).NO.15706/2018,THE COURT ON 14-06-2018 DELIVERED
THE FOLLOWING:
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14/6/2018
WP(C).No. 26353 of 2017 (T)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE LICENCE AGREEMENT
DATED 22/10/2008.
EXHIBIT P2 TRUE PHOTOCOPY OF LATEST EXTENSION OF THE
AGREEMENT DATED 03.11.2008 BEARING
NO.AAT/COM/4(6)/2017/86 DATED 08.03.2017
EXHIBIT P3 TRUE PHOTOCOPY OF INTERIM ORDERS DATED 04.08.2014
IN RESPECT OF CHENNAI AND KOLKATA.
EXHIBIT P4 TRUE PHOTOCOPY OF LETTER DATED 08.10.2014
ADDRESSED TO ALL REGIONAL EXECUTIVE DIRECTORS
AND AIRPORT DIRECTORS.
EXHIBIT P5 TRUE PHOTOCOPY OF NO DUES CERTIFICATE DATED 13.04.2017
ISSUED BY TRIVANDRUM AIRPORT
EXHIBIT P6 TRUE PHOTOCOPY OF COMMON ORDER DATED 07.10.2015
ISSUED BY THE ARBITRAL TRIBUNAL.
EXHIBIT P7 TRUE PHOTOCOPY OF COMMUNICATION DATED 20.05.2016
EXHIBIT P8 TRUE PHOTOCOPY OF RFP FLOATED BY THE
RESPONDENT WITH RESPECT TO TRIVANDRUM AIRPORT
EXHIBIT P9 TRUE PHOTOCOPY OF ORDER DATED 25.08.2016 PASSED
BY HON'BLE MR JUSTICE S S NIJJAR IN RESPECT OF
SOUTHERN REGION AIRPORTS AND CHENNAI AND
KOLKATA AIRPORTS.
EXHIBIT P10 TRUE PHOTOCOPY OF ORDER DATED 25.08.2016 PASSED
BY HON'BLE MR JUSTICE S S NIJJAR IN RESPECT OF
SOUTHERN REGION AIRPORTS AND CHENNAI AND
KOLKATA AIRPORTS
EXHIBIT P11 TRUE PHOTOCOPY OF ORDER DATED 27.01.2017 PASSED
BY HON'BLE JUSTICE S S NIJJAR IN RESPECT OF
SOUTHERN REGION AIRPORTS AND CHENNAI AND
KOLKATA AIRPORTS.
EXHIBIT P12 TRUE PHOTOCOPY OF ORDER DATED 27.01.2017 PASSED
BY HON'BLE JUSTICE S S NIJJAR IN RESPECT OF
SOUTHERN REGION AIRPORTS AND CHENNAI AND
KOLKATA AIRPORTS.
EXHIBIT P13 TRUE PHOTOCOPY OF ORDER IN I.A.867 OF 2017 IN
O.P.(ARB)NO.135 OF 2017 DATED 31.03.2017 OF THE
DISTRICT COURT,THIRUVANANTHAPURAM.
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WP(C).No. 26353 of 2017 (T)
EXHIBIT P14 TRUE PHOTOCOPY OF ORDER IN O.A.NO.197 OF 2017
DATED 29.02.2017 FORM THE HON'BLE HIGH COURT OF MADRAS
AT CHENNAI
EXHIBIT P15 TRUE PHOTOCOPY OF REJECTION COMMUNICATION
DATED 03.08.2017 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P16 TRUE PHOTOCOPY OF ORDER PASSED BY THE HON'BLE
HIGH COURT OF ANDHRA PRADESH IN RESPECT OF
THIRUPATHI AIRPORT AND VIJAYAWADA AIRPORT
DATED 26.07.2017
EXHIBIT P17 TRUE PHOTOCOPY OF ORDER PASSED BY THE HON'BLE
HIGH COURT OF MADRAS IN RESPECT OF MADURAI AIRPORT
EXHIBIT P18 TRUE PHOTOCOPY OF ORDER DATED 31.05.2017 OF THE
HON'BLE HIGH COURT OF BOMBAY
EXHIBIT P19 TRUE PHOTOCOPY OF ORDER DATED 31/05/2017 OF THE
HON'BLE HIGH COURT OF GOA.
EXHIBIT P20 TRUE PHOTOCOPY OF UNDERTAKING IN THE FORM OF
LETTER DATED 24.05.2017 FILED ALONG WITH OTHER
SUBMISSIONS OF RFP.
EXHIBIT P21 TRUE PHOTOCOPY OF EXPRESSION OF INTEREST DATED 11.12.2014.
EXHIBIT P22 TRUE COPY OF THE TECHNICAL PROPOSAL CONTAINED ALL THE
DOCUMENTS AS SPECIFIED IN CLAUSE 2.13.5 OF RFP AS COULD BE
SEEN FROM THE INDEX OF SUBMISSION DATED 24/05/2017
EXHIBIT P23 TRUE COPY OF THE SAID CERTIFICATE OF CHARTERED ACCOUNTS'S
REPORT ON THE STATEMENT OF ANNUAL TURNOVER FOR THE
PRECEDING 5 FINANCIAL YEARS DATED 23/05/2017.
RESPONDENT'S EXHIBITS AND ANNEXURES:
EXHIBIT R2(a) TRUE COPY OF THE AUTO EMAIL WAS SENT TO M/S SRISHTI
COMMUNICATIONS, BANGALORE ON 03/08/2017 FROM THE E-
TENDER PORTAL OF AAI
ANNEXURE R2(a) TRUE COPY OF THE EMAIL DATED 03/08/2017 SENT BY THE
PETITIONER TO THE RESPONDENTS
ANNEXURE R2(b) TRUE COPY OF THE EMAIL DATED 09/08/2017 SENT BY
RESPONDENTS TO THE PETITIONER GIVING REASONS FOR
TECHNICAL REJECTION.
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WP(C).No. 26353 of 2017 (T)
ANNEXURE R2(c) TRUE COPY OF THE PAGES FROM 21-99 &
99A,99B,99C,99D,99E,99F,99G,99H,100 & 100A OF THE RPF
SUBMITTED BY THE PETITIONER.
/TRUE COPY/
P.S.TO JUDGE
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14/6/2018
SHAJI P. CHALY, J.
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W.P.(C) Nos.26353 of 2017 &
14098 & 15706 of 2018
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Dated this the 14th day of June, 2018
JUDGMENT
The captioned writ petitions are filed by one and the same petitioner. Since the writ petitions are intrinsically connected, they are heard together and I propose to deliver a common judgment.
2. W.P.(C) No.26353 of 2017 is filed by the petitioner seeking to quash Ext.P15 communication dated 03.08.2017, whereby the technical bid submitted by the petitioner was rejected, and the other two writ petitions are filed, seeking other consequential reliefs pursuant to the illegality alleged against Ext.P15 impugned communication. Material facts for the disposal of the writ petition are as follows:
3. Petitioner is a company incorporated under the Companies Act, 1956, and is primarily carrying on business of advertising. Since 1987, petitioner has been a licensee with the respondents 1 and 2 and has been awarded licences for exclusive/sole advertising rights by respondents 1 and 2 at its eleven Airports, including the Airport at Trivandrum, Kerala State. The licence for advertising at any airport is awarded W.P.(C) No.26353/17 & con. cases 2 through participation in an open competitive bidding process. Being the successful bidder for exclusive advertising rights at the Trivandrum Airport, petitioner has been operating the Advertising Rights Licence at Trivandrum Airport since 22.10.2007 without any break, evident from Ext.P1 agreement dated 03.11.2008. The said rights were being extended and Ext.P2 is the latest extension order extending the validity of the agreement. Over the years, disputes have arisen between the petitioner and the respondents, particularly with regard to non-fulfilment of its obligations under the various licence agreements by the respondents. Consequent to which, petitioner has invoked the arbitration clause in respect of its licences at 11 Airports, including Trivandrum. The disputes were referred to sole arbitration of Hon'ble Mr. Justice Deepak Verma, former Judge of the Supreme Court of India.
4. The learned arbitrator has passed Ext.P3 interim order on 04.08.2014, and by Ext.P4 letter dated 08.10.2014, respondents informed the Regional Executive Directors of Airport Authority of India, and the Airport Directors respectively. Based on Ext.P4 communication, the accounts between the petitioner and the respondents were reconciled. W.P.(C) No.26353/17 & con. cases 3 According to the petitioner, it has been mutually acknowledged that there are no undisputed dues as to satisfy the requirements of Request for Proposal (RFP) conditions up to 12.04.2017 and thereupon, Ext.P5 b