Madhya Pradesh High Court
M/S Kanthli Traders A Proprietorship ... vs The State Of Madhya Pradesh on 11 September, 2023
Author: Chief Justice
Bench: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No. 22063 of 2023
(M/S KANTHLI TRADERS A PROPRIETORSHIP FIRM REGISTERED UNDER MSME Vs THE STATE OF
MADHYA PRADESH AND OTHERS)
Dated : 11-09-2023
Shri Kishore Shrivastava - Senior Advocate with Ms. Aditi Shrivastava
and Shri Raman Choubey - Advocates for petitioner.
Shri S.S. Chauhan - Government Advocate for respondent No.1.
Shri Rohit Jain - Advocate for respondent Nos.2 and 3.
Heard on I.A.No.13407 of 2023 - an application seeking appropriate direction.
The case of the petitioner is that the respondents have floated a tender for supply of lab and sterilization equipments etc. in various hospitals in the State of Madhya Pradesh. The petitioner's bid was accepted. During the process of supplying, certain items were not furnished on time. They did not match with the technical specification. Therefore, they were asked for replacing the said items. The petitioner had moved an application seeking for a period of 75 days to replace the said articles, which was granted in terms of Annexure P/11 dated 28.03.2023. On the same day, the respondents have also issued a letter to the manufacturer to show that the petitioner had not supplied the items as per the tender requirements and, therefore, the manufacturer is responsible for the said default. The said order was challenged by filing the instant petition.
During the pendency of these proceedings, the order vide Annexure P/23 dated 31.8.2023 was passed, by which, the respondents debarred the petitioner firm from participating in any future tender for a period of two years and the bank guarantee was also forfeited. Hence, an application was filed seeking Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 9/12/2023 11:02:17 AM 2 amendment in the petition to challenge this order also. The same was allowed.
The respondents were on caveat. Hence, they were granted time by the order dated 08.09.2023. Today, they have filed a reply along with various documents.
The learned counsel for the petitioner contends that the initial order of debarment was only for a particular product and now the entire firm has been debarred and even the security deposit has been forfeited. The same is inappropriate. That he could not supply the articles in view of the fact that the manufacturer had failed to supply the products to him. That the undertaking was also given by the manufacturer in terms of the tender document to the effect that he would also be responsible for the satisfactory execution of contract.
However, the same is disputed by the respondents on the ground that there has been a default committed by the petitioner. That he has not supplied the goods as per the requirements. Therefore, necessarily not only has he been debarred, but his security deposit has also been forfeited. Therefore, he submits that no interim order is required to be granted.
However, on considering the contentions, we are of the view that appropriate interference is called for. The contract was only between the petitioner and the respondents. The manufacturer had no role to play in the contract. The only relevance is the authorization form of the manufacturer which was to be filed along with the tender document. On being questioned, the learned counsel for the respondents submits that it is intended only to ensure that only one bid could be placed for each manufacturer of the relevant articles. That there cannot be multiple bids of the same manufacturer. Therefore, only to ensure fair play in the business, these documents had been called for. If that is Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 9/12/2023 11:02:17 AM 3 to be so, the question of the respondents issuing a notice to the manufacturer would not arise at all. The default committed by the petitioner appears to have been pardoned by the notice issued to the manufacturer. It is the respondents who are now holding the manufacturer responsible for the default committed. If that were to be so, no fault would lie with the petitioner. That the delay in submitting articles without quality as required by the respondents is sought to be answered not by the petitioner, but by the manufacturer. If that were to be so, the question of fastening any liability on the petitioner or debarring him would not arise for consideration. Action could be taken only against the manufacturer and none else. The same would be the position in view of the notices being issued to the manufacturer. Even though the manufacturer is not part of the agreement between the petitioner and the respondents, the legal status has been granted by none other than the respondents. Therefore, when the manufacturer has been questioned, it is he alone who would have to answer. Therefore, prima facie, we are of the view that the order of debarment and consequential order of forfeiting the bank guarantee of the petitioner are required to be stayed.
Hence, stay of the order dated 28.03.2023 (Annexure P/11) as well as the order dated 31.08.2023 (Annexure P/23) passed by the respondents until further orders. As a consequence whereof, the respondents shall also delete the name of the petitioner from the portal with regard to debarment.
Issue rule nisi.
The respondents are at liberty to file an application seeking modification or vacation of this order as well as additional reply.
I.A.No.13407 of 2023 stands disposed off.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 9/12/2023 11:02:17 AM 4 (RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
sj
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 9/12/2023
11:02:17 AM