Rajasthan High Court - Jodhpur
Emkay Medicare Services Th. Prop vs The President R.M.R.S. Society & Ors on 2 June, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Second Appeal No. 221 / 2014.
APPELLANT (PLANTIFF):
Emkay Medicare Services through its Proprietor Ayub Ali S/o Noor
Mohammed, R/o H.V.J. 44(3233) Arvind Marg, S-Scheme, Jaipur
through it's Power of Attorney Holder Shri Shiv Shankar Bohra S/o
Jagdish Bohra age about 46 years, R/o D-740, Murlidhar Vyas
Colony, Bikaner.
Versus
RESPONDENTS (DEFENDANTS):
1. The President, Rajasthan Medicare Relief Society, P.B.M.
Hospital, Bikaner through officer incharge.
2. The Superintendent & Chamber Secretary, Rajasthan
Medicare Relief Society, P.B.M. Hospital, Bikaner through
officer incharge.
3. The State of Rajasthan through District Collector, Bikaner
through officer incharge.
....Defendant No. 1 to 3 in Original Suit
4. M/s Ganpati Diagnostic Center through Dr. Sunder Lal
Surana S/o Bhanwar Lal Surana, by caste Surana, R/o C/o
Surana Nursing Home, Nokha, District Bikaner.
----Defendant No.4 in Original Suit
(2 of 39)
[ CSA-221/2014]
Connected With
S.B. Civil Second Appeal No. 222 / 2014.
APPELLANT (PLAINTIFF):
1. Emkay Medicare Services through its Proprietor Ayub Ali S/o
Noor Mohammed, R/o H.V.J. 44(3233) Arvind Marg, S-
Scheme, Jaipur through it's Power of Attorney Holder Shri
Shiv Shankar Bohra S/o Jagdish Bohra age about 46 years,
R/o D-740, Murlidhar Vyas Colony, Bikaner.
2. Emkay Medicare Services through its Proprietor Ayub Ali S/o
Noor Mohammed, C.T. & M.R.I. Center, P.B.M. Hospital,
Bikaner through it's Power of Attorney Holder Shri Shiv
Shankar S/o Jagdish Bohra aged about 46 years, R/o D-740,
Murlidhar Vyas Colony, Bikaner.
Versus
RESPONDENTS (DEFENDANTS):
1. M/s. Ganpati Diagnostic Center through Dr. Sunder Lal
Surana S/o Bhanwar Lal Surana, by caste Surana, R/o C/o
Surana Nursing Home, Nokha, District Bikaner.
----Defendant No.4 in Original Suit
2. The State of Rajasthan through District Collector, Bikaner.
(3 of 39)
[ CSA-221/2014]
3. The President, Rajasthan Medicare Relief Society, P.B.M.
Hospital, Bikaner.
4. The Superintendent & Chamber Secretary, Rajasthan
Medicare Relief Society, P.B.M. Hospital, Bikaner.
_____________________________________________________
For Appellant(s) : Mr. M.S. Singhvi, Sr. Advocate with
Mr. Rajat Dave & Mr. Vivek Aggarwal.
For Respondent(s) : Mr. Ravi Bhansali, Sr. Advocate with
Mr. Dhanesh Saraswat & Mohit Singhvi.
Ms. Suman Porwal, Govt. Counsel.
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
REPORTABLE
02/06/2017
BY THE COURT:
1. Both these appeals arise out of the common judgment dated 11.09.2014, therefore, they are being decided by this common judgment. Learned lower appellate Court has also decided the first Appeal No.11/2011 and 12/2011 by common judgment dated 11.09.2014 arising out of the judgment and decree dated 19.10.2010 passed by Civil Judge (JD), Bikaner.
2. For convenience, facts of SB Civil Second Appeal No.221/2014 are taken into consideration.
(4 of 39) [ CSA-221/2014]
3. Appellant M/s Emkay Medicare Service filed a suit for permanent and mandatory injunction against defendants, which was decreed vide judgment dated 19.10.2010 by learned Civil Judge (JD), Bikaner. Two appeals were preferred against the said judgment; one was filed by defendant No.4 M/s. Ganpati Diagnostic Centre (Civil First Appeal No.11/2011) and another was preferred by Chairman, Rajasthan Medicare Relief Society, PBM Hospital, Bikaner (in short, "RMRS") & others (Civil First appeal No.12/2011). Learned lower appellate Court allowed both the appeals and quashed and set aside the judgment and decree dated 19.10.2010 passed by learned trial Court vide judgment dated 11.09.2014. Plaintiff-appellant Emkey Medicare Services has preferred both these appeals against this judgment dated 11.09.2014.
4. Brief facts giving rise to these appeals are that a suit for mandatory and permanent injunction was filed by the appellant/plaintiff before the Court of Civil Judge (Junior Division), Bikaner contending interalia that the respondent/defendant No.3 had invited tenders vide Notice Inviting Tender (NIT) dated 29.02.2008 for installing machines to conduct MRI and CT Scan Tests. Thereafter, amended tender notice was issued on 20.04.2008. As per the tender notice dated 29.02.2008, the interested firms were required to submit the rates of investigations in sealed envelopes as per the terms and conditions given in the prescribed tender forms issued by the Hospital. By (5 of 39) [ CSA-221/2014] amended tender notice dated 24.04.2008, dates for submissions of tenders were extended and some changes were also made in the terms and conditions/ specifications. In the tender proceedings, one M/s. Indiana Nuclear Med Center also submitted its tender which was conditional and, therefore, the same could not have been considered. The respondent no.1/defendant no.4 M/s. Ganpati Diagnostic Center also submitted its tender which was not in the form issued by Member Secretary, RMRS, PBM Hospital, Bikaner and it was simply on a paper typed from computer and the same could not have been considered. M/s. Ganpati Diagnostic Center was called for negotiation and counter offer was given to it which was accepted. It was submitted that the tender of appellant/ plaintiff was lowest on account of non acceptability of tenders of M/s. Indiana Nuclear Med Center and M/s. Ganpati Diagnostic Center and therefore, the appellant/plaintiff was entitled for permanent and mandatory injunction directing the respondents to accept the bid submitted by plaintiff and to issue him the work order and also restraining them from issuing the work order to any other firm.
5. Written statement was filed on behalf of the respondent/defendants No. 1 to 3 mentioning therein that the suit was premature. Objections with regard to Court fees was also taken and in additional submissions, the details with regard to tender process were mentioned. It was submitted that tenders were invited for installing MRI and CT Scan Machines in Govt. PBM (6 of 39) [ CSA-221/2014] Hospital, Bikaner on the basis of Public Private Participation. The tenders were invited for a period of 10 years. Five applicants namely Emkay Medicare, Indiana Nuclear Med Center, Ganpati Diagnostic Center, Shubham Diagnostic Center, Sanya Hospital & Diagnostic Center submitted tenders. The tenderer were required to submit technical and financial bids and details of rates was to be given in financial bids only. The tenders of all the five applicants were found valid in the technical bid and, therefore, financial bids were opened by the committee of the Rajasthan Medicare Relief Society (RMRS). However, by order of State Government dated 20.06.2008, a new Committee was constituted under Chairmanship of District Collector, Bikaner which was authorised to take final decision. On 22.06.2008, it was decided by the said Committee that except M/s. Ganpati Diagnostic Center, other tenders were having higher rates. It was further mentioned that on 24th June, 2008, M/s. Ganpati Diagnostic Center was called for negotiation and thereafter a counter offer was given to it which was accepted by M/s. Ganpati Diagnostic Center. Thereafter, M/s. Ganpati Diagnostic Center was declared successful bidder and the decision was communicated to the Secretariat, Jaipur on 27.08.2008.
6. M/s. Ganpati Diagnostic Center submitted an application under Order 1 Rule 10 for impleading itself as party defendant in the suit proceedings. The said application was allowed.
(7 of 39) [ CSA-221/2014]
7. Written statement was also filed by M/s. Ganpati Diagnostic Center denying the facts mentioned in the plaint. It was further contended therein that the tender was submitted by it on 10.04.2008 and it was on authorized tender form and as per terms and conditions prescribed by defendant no. 1 to 3, the defendant no. 4 was not required to submit the bid again in prescribed format by depositing fees in reference to the amended notice. He submitted the tender bid again on 16.05.2008 in the exact computerized copy of the tender forms issued by RMRS, within the prescribed time. Therefore, the revised bid submitted by defendant no. 4 on 16.05.2008 cannot be said to be unauthorized.
8. Learned trial Court framed as many as nine issues on 06.03.2010 including relief clause. Plaintiff filed an application on 12.3.2010 stating that he does not want to produce any evidence while reserving right of rebuttal. Trial Court passed an order directing the defendants to produce the original documents for the purpose of admission and denial. Original documents were produced, which were admitted by learned counsel appearing for defendant No.4 on 6.7.2010. DW-1 Dr. Parmendra Sirohi and DW- 2 Dr. Sunder Lal Surana were examined on behalf of defendants. No witness was examined by the plaintiff in his rebuttal evidence. After affording an opportunity of hearing to both the sides, learned trial Court proceeded to decide the suit as mentioned above. Two (8 of 39) [ CSA-221/2014] separate appeals preferred against the judgment and decree were allowed while reversing it.
9. These two civil second appeals have been preferred on behalf of the appellant, which were admitted by this Court on 11.11.2014 and following substantial question of law were framed :-
"(i) Whether in the facts and circumstances of the present case, the first appellate court was justified in coming to the conclusion that as the plaintiff did not lead oral evidence, it has failed to discharge its burden on various issues, despite availability of admitted documents on record "
(ii) Whether the first appellate court was justified in coming to the conclusion that the tender submitted by defendant No.4 was valid ?
(iii) Whether in the facts and circumstances of the case, the suit filed by the appellant can be termed as premature ?
(iv) Whether in the facts and circumstances of the case, the first appellate court was justified in coming to the conclusion that plaintiff was not granted leave under Section 80 (2) CPC ?"
10. During arguments advanced by learned counsel for the appellant, submission has been made that the tender forms submitted by defendant No.4 - M/s Ganpati Diagnostic Center were not on the formats prescribed and issued by the President, RMRS. Tender forms were not signed by the proprietor of (9 of 39) [ CSA-221/2014] defendant No.4 but only initials were affixed thereon. It has also been submitted that the notice inviting tender was issued by RMRS, which is a registered society and there was no role of the Government of Rajasthan in the tender process but with the intention to extend undue advantage to defendant No.4, a committee under the Chairmanship of District Collector, Bikaner was constituted to finalize the tender process on the basis of political intervention and malice. After holding an unauthorized and unwarranted meeting of the committee, recommendation was made to the State Government for approval of the defendant No.4 as lowest bidder and to finalize the tender in his favor. All the proceedings undertaken by the said committee in regard to the tender process were without any authority and to extend undue benefit to the defendant No.4. While duly appreciating the evidence, learned trial Court passed the judgment and decree in favor of plaintiff, which was quashed and set aside by learned lower appellate Court without any basis and without taking the relevant facts and evidence into consideration. In support of the contentions raised, learned counsel for the appellant has placed reliance on number of judicial authorities.
11. Per contra, learned counsel appearing for respondents No.1 to 3 has stated that all the proceedings in regard to the finalization of the tender was done with the object to extend the benefit to general masses of the medical investigation like MRI and CT Scan test on the cheapest rates. There was no malafide or (10 of 39) [ CSA-221/2014] intention to give any undue advantage to any of the bidders. It has been stated that office bearers including President of RMRS are the State Government officers and ex-officio members of the Rajasthan Medicare Relief Society. Thus, it was well within domain of the State Government to supervise and exercise its control over the whole tender process. No fault can be found with the constitution of the committee headed by District Collector, Bikaner. The allegations made in this regard are baseless. Thus, the appeals are liable to be dismissed.
12. Learned counsel appearing for the respondent No.4 has contended inter alia, that the suit was filed by power of attorney holder Shri Shiv Shankar Bohra on behalf of plaintiff without making any mention of this fact in the suit. The power of attorney executed in his favour by the plaintiff was also not proved. There is no signature of the power of attorney holder on the said power of attorney. In such circumstances, the suit filed without any authority was liable to be dismissed on this count alone. Observation in this regard has been rightly made by lower appellate Court in its judgment. It has also been contended that the tender forms initially submitted by defendant No.4 were on the prescribed forms issued by RMRS, which were deposited on 10.4.2008. Butt when an amended NIT was issued on 24.4.2008 by RMRS extending the time and calling upon the bidders to submit their revised bids, the tender forms were again submitted by defendant No.4 which were on the computerized copy of the (11 of 39) [ CSA-221/2014] tender forms printed in exactly the same manner in which the tender forms were issued. The said tender forms were initialed by the proprietor of the defendant No.4, hence, the objections raised in this regard on behalf of appellant are baseless. It has further been contended that only the financial bid was submitted in the exactly same copy of the tender forms printed by computer and the technical bid was on the forms issued by RMRS. Column No.6 of the financial bid (Annex.VI) was not having sufficient space to mention the rates of six different tests that is why addition was made in the format which cannot be held objectionable. It has also been argued that plaintiff himself and other tenderers also mentioned these rates by making addition in the prescribed format for which also no objection was raised by the committee. Equal treatment was meted out to all the bidders in this regard, hence, it cannot be said that any favourble treatment was extended to defendant No.4 only. Supporting the arguments advanced on behalf of respondent No.1 to 3, it has also been contended by learned counsel for respondent No.4 that there was nothing objectionable to form a committee headed by District Collector, Bikaner and comprising of some medical experts and Treasury Officer, Bikaner to evaluate the rates given by the tenderers and supervise the tender process. President of RMRS is also Superintendent of PBM Hospital, Bikaner, which is a Government officer and other members of the society (RMRS) are also the Government officers. Thus, the Government had every authority to supervise the tender process. Further, it was (12 of 39) [ CSA-221/2014] contended that as per the evaluation made by the Committee, defendant No.4 was the lowest bidder having score of 1771.60 whereas plaintiff appellant was having the score of 2036.42. Thus, defendant No.4 was recommended by the Committee being the lowest bidder (L-1) to ensure that facilities for certain diagnostic tests are made available to the public at large at lowest rates. Thus, he submitted that the appeals do not deserve to be allowed and may be dismissed.
13. I have given my thoughtful consideration to the arguments advanced on behalf of the respective parties.
14. I may mention here that learned counsel for the appellant has referred to various judgments (48 in numbers) on various aspects of this case. Learned counsel for the respondent No.4 has also placed reliance on 22 judicial pronouncements in the submissions made in reply. Pains taking efforts put in by both learned Senior Advocates are worth appreciation. When there is an ambiguity in the legal proposition about any aspect, the judicial pronouncements are always required to be taken into consideration and prove helpful to form the view. But if the factual aspect is explicitly clear as per the ocular and documentary evidence, the provisions of law are directly applicable in the facts and circumstances of the case and the legal proposition is well settled and crystallized, then, to my view making extra efforts in referring multiple authorities on such aspects can only be an (13 of 39) [ CSA-221/2014] extravagance. It consumes the time and energy of the Courts and members of the Bar as well. When courts at all levels, more particularly the trial Courts, are clogged with arrears of cases and huge pendency, the time and energy can be invested more usefully in taking up more number of cases for hearing and disposing them. This may give more relief to the litigants waiting for their turn to come for disposal of pending cases. With this view, I feel inclined not to encumber this judgment with multiple reference of judicial pronouncement on the same point. But of course, it will be enlightening for me to take help of the relevant and most suitably applicable citations, wherever need arises to do so.
15. Since, these are civil second appeals, their hearing is required to be governed as per the provisions contained in Section 100 and Order 42 CPC. Sub-section (5) of Section 100 CPC is reproduced below :-
"The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not inolve such question.
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
(14 of 39) [ CSA-221/2014]
16. Similarly Rule 2 of Order 42 CPC is also required to be taken into consideration, which is as follows :-
"Power of Court to direct that the appeal be heard on the question formulated by it. - At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100."
17. Both the provisions reiterated above restrict the scope of the hearing of second appeal on the substantial question of law formulated by the Court while admitting the appeal. As per Section 100 (5) CPC, it is however left at the discretion of the Court, for the reasons to be recorded, to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. Rule 2 of Order 42 CPC also speaks that it shall not be open to the appellant to urge any other grounds without leave of the Court. In light of these provisions, I find myself under legal obligation to restrict the scope of discussion in regard to these appeals, to the substantial questions of law mentioned hereinabove.
(15 of 39) [ CSA-221/2014]
18. On perusal of the record, it appears that the objection raised by learned counsel for respondent No.4 regarding suit having been filed by power of attorney of the plaintiff without any mention of this fact in the plaint as also the objection that the power of attorney has not been signed by its holder was never raised earlier before learned trial Court or first appellate Court. It has been laid down by Hon'ble Supreme Court in Santosh Hazari Vs. Purshottam Tiwari (Deceased) by LRs, reported in 2001 (3) SCC 179 that entirely new point raised for the first time before the High Court is not a substantial question involved in the case unless it goes to the root of the matter. It has also been observed by Hon'ble Supreme Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors., reported in 1999 (3) SCC 722 that where a point of law has not been pleaded or is found to be arisen between the parties in the absence of any factual format, litigants should not be allowed to raise that question as substantial question of law in second appeal.
19. Learned counsel for the respondent No.4 has placed reliance on judgments in Chittoori Subanna Vs. Kudappa Subanna & Ors., reported in AIR 1965 SC 1325, Ram Kristo Mandal & Ors. Vs. Dhankisto Mandal, reported in AIR 1969 SC 204 and Shehla Burney (Dr.) Vs. Syed Ali Mossa Raza (D) by LRs., reported in (2011) 6 SCC 529 to support his prayer that this new plea can be raised at this stage also. In light of the judgment in Santosh Hazari (supra) and Konidiba Dagadu Kadam (16 of 39) [ CSA-221/2014] (supra), I am not convinced with the arguments advanced by learned counsel for the respondent No.4. In my considered opinion as this point was never raised right from the trial Court till first appellate Court, it cannot be allowed to be argued in second appeal. As this issue does not go to the root of the matter, I do not feel inclined to frame any additional substantial question of law on this point as per proviso to sub-section (5) of Section 100 CPC
20. Now adverting to substantial question No.1 framed in this appeal, this Court is required to analyze whether the first appellate Court was justified in coming to the conclusion that the plaintiff has failed to discharge his burden on various issues as he did not lead oral evidence despite the fact that the documents ere admitted by defendant No.4 and such documents are available on record.
21. To appreciate the intricacy of this substantial question more explicitly, it will be appropriate to reproduce issues No.1, 2 and 3 framed by learned trial Court, the burden for which was laid on plaintiff. These issues are as follows :-
"(i) Whether the tender bid submitted by defendant No.4 was not liable to be considered having been submitted on unauthorized tender form since it was typed with the aid of computer ?
(17 of 39) [ CSA-221/2014]
(ii) Whether defendant No.4 was called for negotiation by District Collector on 25.6.2008 in an illegal manner ?
(iii) Whether the tender bid submitted by plaintiff was lowest (L-1) on not taking into consideration the bids submitted by M/s Ganpati Diagnostic Center and Indiana Nuclear Med Center ?"
22. All these above issues were found proved in favor of plaintiff by learned trial court whereas the learned first appellate Court concluded to find them proved against the plaintiff. Thus, there is no concurrent finding recorded on these issues by the Courts below. Learned first appellate Court has drawn its conclusion mainly on the ground that the committee headed by District Collector, Bikaner has uniformly ignored some infirmities found in the tender bids submitted by all the tenderers. But learned trial Court has ignored this defect in respect of the tender of plaintiff only and not in respect of defendant No.4. Thus, the finding given by learned trial Court is not proper and convincing. It has also been observed that the format of the tender bid submitted by defendant No.4 is exactly the same as the formats prescribed and issued by RMRS. So, the finding of trial Court to the effect that it is on unauthorised form is not correct.
23. As per the submissions made by learned counsel for both the sides, it is clear that the controversy is mainly based on the (18 of 39) [ CSA-221/2014] documents in respect of the notice inviting tender and the tender forms submitted by various bidders.
24. To appreciate the findings given by both the Courts below, it deems appropriate to look into the documents available on record which are admitted ones on behalf of defendant No.4. Ex.A/2 is the first Notice Inviting Tender issued on 29.02.2008 whereby tenders were invited directing the interested firms "to submit the rates of investigation in sealed envelopes on terms and conditions given in the prescribed tender formats issued by the Hospital." It was also mentioned in the note that "the undersigned has right to accept or reject any tender fully or in part of it, without assigning any reason". This notice was issued by the Principal Secretary, RMRS, PBM Hospital, Bikaner. On perusal of this notice, it is clear that the rates for investigation were required to be submitted in the prescribed tender formats issued by the Hospital. A corrigendum NIT was issued on 24.4.2008 (Ex.A/1) extending the dates of submission of the tender bids in view of the amended tender terms/ specifications informed by letter No.4496 dated 09.04.2008. On the note appended to the corrigendum, it was directed that the tenderers who have already submitted the bid can file additional information, formats under the sealed cover without any additional fees. Respondent/defendant No.4 while relying upon this condition has contended that as he had already submitted his tender bid in the format issued by RMRS after purchasing the same for Rs.1000/-, so it was not incumbent upon (19 of 39) [ CSA-221/2014] him to again purchase it and to submit his bid in that format. It has been argued on his behalf that there was nothing wrong in submitting the tender forms in the exactly same format, which was issued by the hospital after getting it typed by the computer. It has also been averred that even the plaintiff submitted his bid, though on the format issued by the hospital, but has added information regarding some tests in respect of the column No.6.
25. It is also important to note that DW-2 Dr. Sunder Lal Surana, who claims to be owner of M/s Ganpati Diagnostic Center has admitted in cross examination that the financial bid submitted by him after 10.04.2008 was in the computer sheet, which was the exact copy of the format issued by hospital. It essentially means that it was not in the format issued by hospital.
26. In this regard, the forwarding letter submitting the revised technical and financial bid on behalf of M/s Ganpati Diagnostic Center Ex.A/7 is important. It has been mentioned therein that "so, we are submitting out revised technical and financial bid and to cancel previous bid offered on 10.04.2008." By this letter Ex.A/7, it is clear that the bid earlier submitted on 10.4.2008 on behalf of M/s Ganpati Diagnostic Center was no more worth consideration which had been cancelled. Now the only tender bid on behalf of defendant No.4 available for consideration was the revised technical and financial bid forwarded by him through letter Ex.A/7. In my view, defendant No.4 cannot take any advantage of (20 of 39) [ CSA-221/2014] the bid submitted by him on 10.04.2008. It is to be noted further that in the corrigendum NIT, the liberty was given only to deposit any additional bids while submitting the new technical information and formats. Condition No.5 of the amended corrigendum also needs attention wherein it was mentioned that all the remaining terms and conditions of NIT would remain as it is. So, the condition of submitting the tender bids, "in the prescribed tender formats issued by the Hospital" mentioned in the NIT dated 29.2.2008 remains unchanged even under the corrigendum NIT. In view of this, the tender bids submitted by defendant No.4 through forwarding letter Ex.A/7 not being in the prescribed tender form issued by the hospital cannot be considered to be in accordance with the terms and conditions of NIT. It appears that learned first appellate Court has not taken this fact into consideration while deciding issue No.1. In view of above, the conclusion arrived at by learned lower appellate Court in regard to issue No.1 does not appear to be correct.
27. So far as issue No.2 framed by learned trial Court is concerned, lower appellate Court has inferred that the plaintiff has not produced any evidence to the effect that defendant No.4 was called for negotiation only because of some political reason. The finding given by learned trial Court has been set aside on this ground only.
28. It appears that learned lower appellate Court has failed to (21 of 39) [ CSA-221/2014] take into consideration this fact that after the revised tender notice submitted by defendant No.4 through Ex.A/7, his earlier tender was cancelled by himself, so, that could have not been taken into consideration and the revised tender bid was not submitted as per the terms and conditions of the NIT. In view of this, it was not justified to call defendant No.4 for negotiation.
29. Further, learned counsel for the appellant has raised this plea that NIT was issued by President, RMRS. The formats issued for the tender were also signed by him. The tenders were required to be submitted to him. All the proceedings right from initiation till completion was thus required to be supervised and completed by office bearers of RMRS. On perusal of the statement of DW-1 Dr. Parmendra Sirohi, it comes out that he has admitted in his cross examination that ordinarily, there is no role of the Collector and the State Government in the tender invited by RMRS, which has got its own Rules and Constitution. Though he has admitted during cross-examination done on behalf of defendant No.4 that Principal, Medical College happens to be the Chairman of RMRS and all other office bearers of RMRS are also Government officers, who are ex-officio members of the society. But simply because the Government officers are ex-officio members of RMRS, to my view, this does not denude the society from its independent existence as the Society, which is registered under the Rajasthan Societies Act. The admitted fact remains that ordinarily, there is no role of the Collector and the State Government in the tender (22 of 39) [ CSA-221/2014] process initiated by RMRS.
30. In this regard, affidavits sworn in by DW-2 Dr. Sunder Lal Surana also requires attention wherein it has been mentioned that on the complaint made by him, the tender process was postponed. He has also stated in the affidavit that when the Member Secretary did not give any heed to the objections raised by him regarding the tender documents submitted by Indiana Nuclear Med Center, then, he made a complaint to the Government. During his cross-examination, he has also admitted that the Principal and Superintendent, who happens to be ex-officio Chairman and Secretary of the RMRS were not removed by the Government from their post except for the purpose of this tender process. He has also admitted that Dr. Dhanpat Kochar, Dr. K.C. Choudhary and Dr. M.S. Meena, who were made members of the Committee constituted by the Government were not the members of RMRS. Though he has denied the suggestion that he got the committee constituted by putting political pressure upon Dy. Secretary, Medical Education Department, but he has admitted that since RMRS did not consider him as L-1, he made a complaint to the Government. In view of these admissions and the depositions, it is apparently clear that the powers and authority ordinarily being exercised by RMRS in the tender process were not allowed by the Government to be exercised in this tender process on the basis of the complaint made by defendant No.4 and a new committee headed by District Collector, Bikaner was constituted (23 of 39) [ CSA-221/2014] vide order dated 20.06.2008. Order dated 20.06.2008 itself mentions that tenders have already been invited and the finalization thereof is to be made. For this purpose the following committee under Chairmanship of District Collector, Bikaner is constituted. The order itself clearly shows that the committee has been constituted during the tender process. Learned counsel for the appellant has placed reliance in this regard on Hussein Ghadially @ M.H.G.A. Shaikh & Ors. Vs. State of Gujarat, reported in (2014) 8 SCC 425 wherein it has been observed that if the statute provides for a thing to be done in a particular manner, then, it must been done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. He has also placed reliance on Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors., reported in (2012) 4 SCC 407. It has been observed therein as under :
"48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended".
It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law."
31. Learned counsel for the respondent No.4 has vehemently argued that no challenge has been made in the pleadings to the constitution of the committee under the Chairmanship of District Collector, Bikaner.
(24 of 39) [ CSA-221/2014]
32. Per contra, learned counsel for the appellant has stated that enough evidence has been led on this point and the parties to the pleadings were fully in the knowledge that this is the inherent issue in the matter. Thus, this Court is not precluded to consider and decide this controversy. He has also contended that issue No.2 was framed in this regard, which covers the competence and legality of the committee. He has placed reliance on the following judgments :-
1. AIR 1963 SC 884 - Nedunuri Kameswaramma Vs. Sampati Subba Rao
2. AIR 1966 SC 735 - Bhagwati Prasad Vs. Chandramaul
3. AIR 2015 SC 3796 - Nandkishore Lalbhai Mehta Vs. New Era Fabrics P. Ltd. & Ors.
33. In Nedunuri Kameswaramma's case (supra), it has been held as under :
" ... ... ... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings................."
34. In Bhagwati Prasad's case supra, following observation has (25 of 39) [ CSA-221/2014] been made as below :
"... ... ... If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.
35. In Nandkishore Lalbhai Mehta's case (supra), it has been held as under :-
"17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such . ... ... ..."
(26 of 39) [ CSA-221/2014]
36. Learned counsel for the appellant has also placed reliance in this regard on the following judgments :-
1. 2010 (9) SCC 437 - Kala Bharati Advertising Vs. Hemant Vimalnath Narichania
2. AIR 1971 SC 1228 - State of Punjab Vs. Ramji Lal
3. 2011 (5) SCC 435 Joint Action Committee of Airlines Pilots Association of India Vs. Director General of Civil Aviation.
37. In Kala Bharati Advertising's case (supra), it has been held in para-25 as under :
"25. The State is under obligation to act fairly without ill will or malice - in fact or in law. "Legal Malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts."
38. In State of Punjab's case (supra), it has been held as under :
(27 of 39) [ CSA-221/2014] "... ... ... The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claims to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose."
39. In Joint Action Committee of Airlines Pilots Association of India's case (supra), it has been held as under :
"28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guidelines or direction to the authority under the statute to act in a particular manner."
40. In view of the above, it is clear that the Rajasthan Medicare Relief Society, PBM Hospital, Bikaner, which was authorized to conduct and finalize the tender process was denuded of its authority in respect of this particular tender on the basis of the complaint made by defendant No.4, who was ultimately declared L-1 by the committee which replaced the original authority. This shows that the process of finalization of this tender was not done in the ordinary manner in which it ought to have been completed.
(28 of 39) [ CSA-221/2014] On this count alone, it is the inevitable inference to be drawn that the District Collector or the committee headed by him was not authorized to finalize the tender process and whatever steps were taken by it, those were devoid of the genuine authority. The judicial pronouncements relied upon by learned counsel for the respondent No.4 in Ramana Dayaram Shetty Vs. Internation Airport Authority of India, reported in (1979) 3 SCC 489, G.J. Fernandez Vs. State of Karnataka, reported in (1990) 2 SCC 48, BSN Joshi & Sons Vs. Nair Coal Services & Ors., reported in (2006) 11 SCC 548, Jagdish Mandal Vs. State of Orissa & Ors., reported in (2007) 14 SCC 517, Central Coal Fields Limited & Anr. Vs. SLL-SML (Joint Venture Consortium) & Ors., reported in (2016) 8 SCC 622, Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. (Civil Appeal No.9078 of 2016, decided by Hon'ble Supreme Court vide judgment dated 15.09.2016 and Montecarlo Limited Vs. NTPC Limited, reported in AIR 2016 SC 4946 appear to be of no avail in the facts and circumstances of the case. Had the ordinarily authorized committee of experts, which was initially constituted to complete the process continued to evaluate the tenderers and to declare one of them successful, the things would have been different and then, the judgments cited above could have come to support the case of respondent No.4. But in the eventuality of the basic infirmity with which the substituted committee was suffering, in my view, the powers of judicial review of the Court cannot be restrained or restricted.
(29 of 39) [ CSA-221/2014]
41. Burden of proof was laid on plaintiff for the issue No.3 framed by learned trial Court wherein it was required to be proved that on ignoring the tenders submitted by M/s Ganpati Diagnostic Center and Indiana Nuclear Med Center, tender submitted by plaintiff was lowest.
42. In light of the observation made above regarding lack of authority in the committee constituted by the Government under order dated 20.06.2008, in my view, this issue has lost its significance. It is undisputed that the evaluation was done by the said committee and not by the committee which initiated the tender proceedings. Despite that, if the pleadings and evidence available on record in regard to this issue are considered, para -8 of the written statement filed on behalf of defendants No.1 to 3 mentions that after taking all the relevant points into consideration and detailed study, the committee awarded the gradation of various bidders in the following order :
S.No. Tenderers Score
1. M/s Ganpati Diagnostic Center, Bikaner 1771.60
2. M/s Indiana Nuclear Medi Center, Jaipur 1969.28
3. Emkay Medicare Services 2036.42
4. Shubham Diagnostic Center 2066.60
5. Sanya Hospital & Diagnostic Pvt. Ltd. 2783.75
(30 of 39)
[ CSA-221/2014]
43. The same fact has been reiterated in para 8 of the affidavit sworn in by DW-1 Dr. Parmendra Sirohi.
44. On perusal of the score obtained by various tenderers, it comes out that M/s Ganpati Diagnostic Center stood at priority No.1, M/s Indiana Nuclear Medi Center, Jaipur stood at No.2 and M/s Emkay Medicare Center was at No.3. It has also been mentioned in sub-para 5, 6 and 7 of para 23 of the written statement of defendants No.1 to 3 as also in sub-para 2 to 8 of para 12 of the affidavit of DW-1 Dr. Parmendra Sirohi that M/s Indiana Nuclear Medi Center offered the rates with the condition of increase @ 10% every three years. The rates submitted by M/s Ganpati Diagnostic Center were not submitted on the formats printed by the hospital but were submitted on the typed paper separately. It has further been stated that the Committee chose the option not to strictly apply the conditions of tender in regard to these lacunae but ignoring the same it chose to consider the tenders submitted by both these firms. It is, thus, clear that had it been decided by the Committee to strictly adhere to the terms and condition of the NIT, the bids submitted by M/s Ganpati Diagnostic Center and M/s Indiana Nuclear Medi Center could have been out of consideration and thus M/s. Emkay Medicare Services could have stood at priority No.1 as L-1. This inference can obviously be drawn simply on the perusal of written statement submitted by respondents No.1 to 3 and the affidavits sworn in by DW-1 Dr. Parendra Sirohi. This is further substantiated by the (31 of 39) [ CSA-221/2014] perusal of minutes of the meeting dated 22.6.2008 of the said committee, which is Ex.A/13, the documents admitted on behalf of Defendant No.4. In view of these facts, it was not required for the plaintiff to have adduce any evidence in rebuttal as the issue was sufficiently proved by the evidence submitted on behalf of defendants themselves. Thus, the finding given by learned lower appellate Court that in absence of plaintiffs evidence, this issue is not found proved in favour of him, does not appeal to logic and is liable to be reversed accordingly.
45. Learned counsel for the appellant has referred to the provisions contained in Sections 58, 59, 61 and 62 of Indian Evidence Act and has submitted that in face of the fact that the controversy involved is based on the documentary evidence only and the documents have been fairly admitted on behalf of respondent defendant No.4, there was no need for the plaintiff to adduce any oral evidence. On persual iof the provisions referred above as also provisions contained in Order 8 Rule 5 and Order 12 Rule 6 CPC, I am convinced with the arguments advanced by learned counsel for the appellant. Of course, under Section 58 of the Indian Evidence Act and under Order 8 Rule 5 CPC, the proviso has been added that the Court may, in its discretion, require the facts admitted to be proved otherwise then by such admissions. But in my view when the controversy is purely limited to the documents, no oral evidence could have been asked to be produced to controvert the contents and the infirmities, if any in (32 of 39) [ CSA-221/2014] the documents themselves. More particularly, when the documents have been admitted, no occasion was left with the Court to ask the opposite side to produce any further evidence. Though reliance has been placed by both the learned counsels on various judicial pronouncements in this regard but the fact and situation of the case in hand is very clear and unambiguous to which the legal provisions are clearly applicable, so I do not intend to burden the judgment by referring to the judgments referred.
46. All these three issues, the burden of proof of which was on the plaintiff appellant, in my considered view, have been wrongly decided by lower appellate Court while reversing the findings given by learned trial Court. The documents available on record, which were admitted on behalf of defendant No.4 and the oral evidence adduced by DW-1 and DW-2 was worth consideration by learned lower appellate Court. The oral evidence has not at all been discussed and evaluated by it. Further, the admitted documents have also not been properly considered and construed resulting in wrong finding on these issues. This Court is under obligation to re-appreciate this evidence in second appeal. Thus, this substantial question of law is found proved in favour of appellant plaintiff and against respondent defendants.
47. The question No.2 framed by this Court is as follows :-
(33 of 39) [ CSA-221/2014] "(ii) Whether the first appellate court was justified in coming to the conclusion that the tender submitted by defendant No.4 was valid ?"
48. Learned lower appellate Court while analyzing the issue No.1 has come to the conclusion that the finding given by learned trial Court is wrong with regard to this issue. The conclusion drawn by learned lower appellate Court is based on three grounds. Firstly, it has been stated that it has not been clearly and unequivocally admitted by defendant No.4 in his written statement that the tender was submitted by him on the formats got typed by himself on computer. Secondly, it has been stated that there was no condition in the NIT that initials could not be put on the tender forms and thirdly that the financial bid submitted by defendant No.4 was in the same language as that of prescribed format. It has also been stated that the bid submitted by the plaintiff himself was also having some entries blank in regard to the required rates for certain tests. It has been observed by learned lower appellate Court that the trial Court has found nothing wrong in over looking the lacunae left by the plaintiff in his bid whereas the bid of defendant No.4 has been found defective by the trial Court, which itself is discriminatory.
49. Enough discussion has been made in regard to issue No.1 in the substantial question mentioned above. It is suffice to say here that whether the tender submitted by defendant No.4 was in the (34 of 39) [ CSA-221/2014] typed copy but not in the format prescribed or whether it was not signed and only initialed by him are of not much significance but the main issue is the competence of the committee which finalized the tender process. As mentioned above, the committee was having inherent defects in its constitution having been formed during the process of the tender. Further it was out-rightly an authority foreign to the Constitution and Rules of RMRS, which was never anticipated in that scheme. Besides this, if the statement of DW-2 Dr. Sunder Lal Surana is considered, he has admitted in his cross examination that after revision of the date, the tender form, which he submitted was on the computer sheet. It has not been stated by him that the computer sheet was issued to him by RMRS, as was pleaded in the written statement. Thus, the observation made by learned lower appellate Court is not found substantiated on perusal of the evidence given by DW-2. It, thus, appears to be a violation of the terms and conditions of NIT. So far as question of ignoring the lacunae in the bid submitted by plaintiff is concerned, it does not entitle the other bidders to claim equity in committing similar mistake or the other. The finding arrived at by learned lower appellate Court on this ground does not appear to be justified and is thus, liable to be reversed. Thus, this substantial question of law is replied in favour of appellant and against the defendant No.4.
50. Substantial question No.3 framed by this Court is as follows :-
(35 of 39) [ CSA-221/2014] " (iii) Whether in the facts and circumstances of the case, the suit filed by the appellant can be termed as premature ?"
51. In fact, this question is identical to issue No.4 framed by learned trial Court. Learned trial Court decided this issue in favour of appellant/plaintiff and against the defendants. Learned first appellate Court arrived at the reversed finding holding that the tender was not finalized as per the evidence produced by defendants. Hence, the suit was premature.
52. Obviously, the burden of issue No.4 was upon defendants. On perusal of the affidavit sworn in by DW-1 Dr. Parmendra Sirohi, it is revealed that it was unanimously decided by the committee constituted by the Government to call L-1 M/s. Ganpati Diagnostic Center for negotiation on 24.6.2008 with the object to lower down some of the rates given by him. Discussion took place and thereafter a counter offer was given to M/s. Ganpati Diagnostic Center, which was accepted on its behalf. It is further revealed that in meeting dated 24.6.2008 held by the committee under Chairmanship of District Collector, it was unanimously decided to declare M/s. Ganpati Diagnostic Center to be the successful bidder and also to send the minutes to Secretary, Medical Education Department, Government of Rajasthan, Jaipur. It has further been stated that in compliance of the minutes, the whole proceedings (36 of 39) [ CSA-221/2014] and the tender file was sent to the Secretary, Medical Education Department vide letter No.154 dated 27.6.2008 by Superintendent, PBM Hospital, Bikaner. On perusal of the documentary evidence, it is found that the letter containing counter offer Ex.A/16 is there on record, which has been accepted on behalf of M/s. Ganpati Diagnostic Center vide letter dated 24.6.2008 (Ex.A/17). Minutes of the meeting dated 24.6.2008, declaring M/s. Ganpati Diagnostic Center as successful bidder is Ex.A/18. It has been deposed by DW-1 that the letter No.154 dated 27.6.2008 was sent forwarding the whole proceedings for approval to Secretary, Medical Education Department. In view of these facts, it is evidently clear that the whole process of finalization of the tender was completed by the committee constituted by Government of Rajasthan. For a mere formal approval of the recommendation of the committee, the letter was sent to the Secretary, Medical Education Department. In light of the documentary evidence as well as the oral evidence adduced by defendants themselves, it is clear that the whole process came to the final stage and was completed. Thus, the suit filed on 27.6.2008 by appellant plaintiff cannot be said to be premature. The finding of learned first appellate Court appears to be mis- founded while ignoring the evidence available on record. Hence, this question is replied in favour of appellant/plaintiff.
53. Substantial question of law No.4 framed by this Court is as follows :-
(37 of 39) [ CSA-221/2014] " (iv) Whether in the facts and circumstances of the case, the first appellate Court was justified in coming to the conclusion that plaintiff was not granted leave under Section 80 (2) CPC ?"
54. This question is identical to issue No.6 framed by learned trial Court, the burden of proof of which was laid on defendants. This issue was decided by learned trial Court in favour of plaintiff and against the defendants. Learned first appellate Court has reversed the finding and has found this issue proved in favour of defendants. Nothing has been deposed in the affidavit of DW-1 in regard to notice under Section 80 (2) CPC. On perusal of the record, it is found that an application under Section 80 (2) CPC was filed on behalf of plaintiff/appellant before the trial Court on 27.6.2008. Order-sheet dated 27.6.2008 of learned trial Court reveals that though no order was passed on the said application but permission was granted to hear the matter during summer vacations. Learned counsel for the appellant submitted that this itself shows that taking into consideration the urgency in the matter, learned trial Court allowed the case to be listed during summer vacation and this is a deemed permission on the application filed under Section 80 (2) CPC. He further submitted that an application under Order 7 Rule 11 CPC came to be filed on behalf of defendants No.1 to 3 stating that neither notice under Section 80 CPC has been given to the State Government prior to filing of the suit nor permission has been sought from the Court under Section 80 (2) CPC in this regard. Hence, the suit is liable (38 of 39) [ CSA-221/2014] to be dismissed. The said application came to be rejected vide order dated 26.7.2008. On perusal of the record, submission made by learned counsel for the appellant is found to be correct. It has been inferred by learned trial Court in the order dated 26.7.2008 that institution of the suit itself indicates that permission was granted on the application filed by the appellant under Section 80 (2) CPC.
55. Learned counsel for the appellant submitted that this order dated 26.7.2008 passed on the application under Order 7 Rule 11 CPC has attained finality as it has never been challenged by the defendants. Thus they are estopped from taking any plea against it. Per contra, learned counsel for the respondent No.4 submitted that the interim order passed by trial Court can very well be challenged in the appeal against decree and this does not matter whether interim order was earlier challenged or not. Learned counsel for the appellant has placed reliance upon the judgment rendered by Delhi High Court in Basic Tele Services Vs. Union of India & Anr. (CS (OS) 2686/1996, decided on 28.05.2009). Delhi High Court was confronted in this case with the same situation and it was held that though in specific words the leave under Section 80 (2) CPC was not granted but the Court also did not return the plaint. On the contrary, leave sought to treat the matter urgent was granted. So, it has been held that it was a deemed permission under Section 80 (2) CPC. I find myself in agreement with the view expressed above. It is undisputed (39 of 39) [ CSA-221/2014] that the suit filed by plaintiff appellant was heard during summer vacations. This tantamount to deemed permission to waive the requirement of the notice under Section 80 CPC. Hence, the finding arrived at by learned first appellate Court does not appear to be logical and correct. Hence, this question is also replied in favour of the appellant plaintiff.
56. In view of the discussions made above, all the above stated substantial questions of law are replied in favour of the appellant/plaintiff. Thus, both the appeals succeed. In the result, the judgment dated 11.09.2014 passed by learned lower appellate Court in Civil Appeals No.11/2011 and 12/2011 is quashed and set aside, while upholding the judgment and decree dated 19.10.2010 passed by learned trial Court. Accordingly, both the appeals preferred by appellant/plaintiff are allowed.
(DEEPAK MAHESHWARI), J.
Arun/PS