Bombay High Court
Chinmay Enterprises vs Mumbai Port Trust(Mbpt) And Ors on 22 January, 2021
Author: Madhav J. Jamdar
Bench: A. A. Sayed, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3446 OF 2020
Chinmay Enterprises
through its Proprietor,
Pradip J. Patil, ... Petitioner
Vs.
Mumbai Port Trust (MBPT) & Ors. ... Respondents
...........
Mr. P. M. Havnur a/w. Mr. Sanjay Kharat for the Petitioner.
Mr. Venkatesh Dhond, Senior Advocate a/w. Mr. Ayush Agarwal and
Mr. Roop Basu i/b. M/s. The Law Point for the Respondent Nos. 1 to
4.
Mr. Mihir Desai, Senior Advocate a/w. Nilesh Ukey & Mr. Arif
Siddiqui i/b. Siddhiqui Mohammed Arif for the Respondent No. 5.
..........
CORAM: A. A. SAYED AND
MADHAV J. JAMDAR, JJ.
DATE : 22nd JANUARY, 2021.
P. C:-
1. The Petitioner by the present Writ Petition filed under Article 226 of the Constitution of India has challenged disqualification of his bid in connection with Tender No. E-01/2020 issued by the Respondent No.1-Mumbai Port Trust (MBPT) as illegal, bad in law, malafide and arbitrary.
2. It is the case of the Petitioner that on 8 th January, 2020, MBPT Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 2/10 1. wpl3446.2020.doc issued Tender No. E-01/2020 for Operation and Management of Pay and Park in MBPT Estate. On 20 th February, 2020, the Respondent No.1 -Mumbai Port Trust (MBPT) accepted Petitioner's technical bid. Thereafter Respondent No. 1 by sending email on 26 th June, 2020 which was Friday, in the evening at about 5.58 p.m. rejected the Petitioner's bid by terming it not qualified. It is the contention of the Petitioner that the rejection was informed to him on Friday evening intentionally and deliberately in this lockdown period so that the Petitioner should not take any further steps. It is the further contention of the Petitioner that Respondent Nos. 1 to 4 on Monday morning i.e. on 29th June, 2020 opened bids of other bidders and shown Respondent No. 5 as highest bidder. It is the submission of the learned Counsel Mr. Pradeep Havnur on behalf of the Petitioner that the rejection of Petitioner's bid as not qualified is erroneous as the Petitioner was already informed that its bid was accepted by email dated 20th February, 2020. He submits that although initially no reasons were given for rejecting Petitioner's bid as not qualified, by letter dated 9th July, 2020 it was informed to the Petitioner that its bid was kept out of consideration as it has defaulted in payment of monthly license fees on regular basis and also not submitted renewed bank guarantee and additional bank guarantee towards Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 3/10 1. wpl3446.2020.doc security deposits under Tender No. E-99/2016. The second reason given is that he has not paid one month's license fee and bank guarantee towards security deposits under Tender No. E-100A/2018. Mr. Havnur disputed that the Petitioner has defaulted in making payment.
3. Mr. Havnur submitted that in any case none of the tender conditions of present tender i.e. Tender No. E-01/2020 permit the Respondent Nos. 1 to 4 to take into consideration the Petitioner's conduct as far as earlier tenders are concerned. He disputes that the Petitioner has defaulted in payment of monthly license fees as contended by the Respondent Nos. 1 to 4.
4. On the other hand, Mr. Dhond, learned Senior Counsel appearing for the Respondent Nos. 1 to 4 submits that the Petitioner has defaulted in making payment of monthly license fees on regular basis in respect of Tender No. E-99/2016 and in fact the bank guarantee submitted by the Petitioner was required to be invoked in view of the said defaults. He submits that as per clause-9 of present Tender No. E-01/2020, the right to reject any or all tenders without assigning any reason or to accept any tender, is reserved by the Board of Trustees of Port of Mumbai. He submits that although no Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 4/10 1. wpl3446.2020.doc reasons are required to be assigned, in this particular case specific reasons are communicated to the Petitioner. It is submitted that the Petitioner being a chronic defaulter and taking into account the Petitioner's track record, same would constitute a very valid reason for rejection of the Petitioner's tender. He submitted that the action of the Respondent Nos. 1 to 4 is not malafide and by no stretch of imagination the decision can be termed as arbitrary, unreasonable or unfair and therefore, the Petition be not entertained.
5. Mr. Mihir Desai, learned Senior Counsel appearing for the Respondent No.5 who is successful bidder of Tender E-01/2020 submitted that the Petitioner was held to be not qualified on 26 th June, 2020 and the Petition is filed on 17th September, 2020 after a period of almost 3 months. He submitted that although the Respondent No.5 was the highest bidder as declared on 29 th June, 2020, ultimately the contract was awarded to it only on 12 th August, 2020 and even after payment of Rs. 1 Crore, the Respondent No. 5 was prevented from performing the contract as the Petitioner failed to hand over possession to the Respondent No. 1. He submits that the Petitioner was removed by the Respondent No.1 on 18 th January, 2021. The learned Senior Counsel submits that immediately on 18 th January, 2021, the Respondent No.1 put the Respondent No.5 in Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 5/10 1. wpl3446.2020.doc possession and the Respondent No.5 has started the work under the tender and therefore, the Petition be not entertained.
6. We first deal with the contention of Mr. Havnur that the rejection of the Petitioner's bid was communicated to him on 26 th June, 2020, which was Friday, with malafide intention that the Petitioner should not take further steps. It is to be noted that thereafter on 29th June, 2020 the financial bids were opened and it was found that the Respondent No. 5 was the highest bidder. The contract was awarded to the Respondent No. 5 on 12 th August, 2020. The Petitioner is basically aggrieved by decision to reject its bid which decision was communicated on 26th June, 2020 and the present Petition is filed on 17th September, 2020. Therefore, there is no substance in the contention of the Petitioner that the decision was taken on 26th June, 2020 which was Friday with an intention that the Petitioner should not take further action. Apart from that, the Petitioner has approached this Court after almost a period of 3 months and therefore, there is delay and latches in approaching this Court, particularly when the Petitioner is challenging rejection of his bid.
7. A perusal of the record shows that Tender No. E-99/2016 for Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 6/10 1. wpl3446.2020.doc operation and management of pay and park in MBPT estate was awarded to the Petitioner on 6 th April, 2016 for monthly license fees of Rs. 5,79,130/- (excluding GST) for a period of 11 months. The area of land initially allotted was 16,500 sq.m. The said period was extended from time to time and also additional areas were handed over to the Petitioner under the same contract aggregating total allotted parking plot of 22,192 sq. m., for which the Petitioner was required to make additional payments. The Respondent Nos. 1 to 4 have relied on various letters sent by them to the Petitioner pointing out that Petitioner from time to time defaulted in making payments of monthly license fees. The said correspondence include letters dated 10/07/2018, 26/11/2018, 14/12/2018, 13/02/2019, 22/02/2019, 17/09/2019, 26/12/2019, 24/02/2020, 10/08/2020 and 11/08/2020.
8. It is significant to note that due to said defaults and despite extensive correspondence, the Petitioner failed to clear entire arrears, the Respondent No. 1 was constrained to invoke and encash the bank guarantee amounting to Rs. 17.38 lakh and Rs. 5.99 lakhs submitted towards additional security deposits on 5th November, 2019 and the same was adjusted towards outstanding dues. Thus, it is clear that factual position on record shows that the Petitioner has Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 7/10 1. wpl3446.2020.doc defaulted in payment of monthly license fees on number of occasions and therefore, bank guarantee submitted by it was also required to be invoked and encashed. It is significant to note that Petitioner has not challenged at any point of time the said action of Respondent No. 1 of invocation and encashment of his bank guarantee and it is apparent that the Petitioner has defaulted in payment of monthly license fees. Although Mr. Havnur, the learned Counsel of the Petitioner submitted that the Petitioner has not committed any default the factual position on record is contrary to his submission.
9. As far as the submission of the Petitioner that the default in payment of license fees of earlier tender cannot be considered for rejecting his bid for the present tender by terming the same as failure in technical evaluation is not permissible, it is to be noted that clause-9 of the tender conditions gives specific right to the Respondent No.1 to reject or accept any tender. In this particular case, the Respondent No. 1 has given specific reasons for rejection of his bid. If it is the opinion of the Respondent No. 1, by taking into consideration their previous experience of Petitioner being persistent defaulter in payment of license fees of earlier Tender, that the Petitioner will not be able to perform various terms and conditions Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 8/10 1. wpl3446.2020.doc of this tender particularly payment clauses and on that ground it was disqualified then, in such circumstances, it cannot be said that the Respondent No. 1 has acted malafidely, arbitrarily, unreasonably or unfairly.
10. Mr. Havnur, learned Counsel for the Petitioner has heavily relied on email dated 20th February, 2020 by which it was informed to the Petitioner by the Respondent No. 1 that its bid was admitted. It is explained by the Respondent No. 1 in their Affidavit that the said email is the system generated acknowledgment indicating that bid for said tender has been received by the MBPT. The learned Counsel for the Petitioner disputes this position. In any case, by email dated 26th June, 2020, it was specifically informed to the Petitioner that its bid was rejected during technical evaluation on the ground being "not qualified" and thereafter by letter dated 09/07/2020, the reasons for same are specifically assigned. Therefore, there is no merit in the said contention.
11. It is also significant to note that the Respondent No.1 has declared Respondent No. 5 as the highest bidder on 29.06.2020 and awarded contract to the Respondent No. 5 on 12.08.2020. The Petitioner has not sought any relief in the Writ Petition regarding Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 9/10 1. wpl3446.2020.doc award of the tender. Thus, no relief can be granted to the Petitioner in the Petition without seeking any prayer for cancellation of the tender and award of the tender to Respondent No. 5 who is now in possession of the subject parking lots and challenge being only confined to rejection of the Petitioner's bid. There being no restraint order in the Petition, the action of the Respondent No. 1 in taking over possession of the subject parking lots during the pendency of the Petition cannot be faulted.
12. Mr. Havnur has also argued that the Petitioner's bid was the highest. Although no material is produced regarding said submission, even if the said contention is assumed to be correct then too, the action of Respondent No.1 cannot be faulted for rejecting the bid in view of persistent defaults regarding earlier Tender, as the Respondent No. 1 would have reasonable apprehension that the Petitioner would not perform the financial terms and conditions as required under the present Tender.
13. For the aforesaid reasons and as we have found that the action of the Respondent No. 1 cannot be termed as arbitrary, malafide, illegal or unreasonable we do not think that this is a fit case where interference by this Court under Article 226 of the Constitution of Sonali ::: Uploaded on - 29/01/2021 ::: Downloaded on - 08/02/2021 13:49:40 ::: 10/10 1. wpl3446.2020.doc India is warranted. Therefore, the Writ Petition is accordingly dismissed with no order as to costs.
(MADHAV J. JAMDAR, J.) (A. A. SAYED, J.)
Sonali
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