Kerala High Court
Prasad Mathew vs Stateof Kerala on 11 April, 2014
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY,THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935
WP(C).No. 20604 of 2013 (A)
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PETITIONER:
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PRASAD MATHEW
KUTTICKATTU HOUSE, KADAPRA P.O.,
KUMBANAD-689 547
PATHANAMTHITTA.
BY ADVS.SRI.K.L.VARGHESE (SR.)
SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE
SRI.RANJITH VARGHESE
RESPONDENTS:
----------------------
1. STATEOF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
PUBLIC WORKS & TRANSPORT DEPARTMENT
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
2. THE SUPERINTENDING ENGINEER
PWD (R & B) SOUTH CIRCLE, THIRUVANANTHAPURAM.
ADDL.R3 IMPLEADED
3. THE SUPERINTENDENTING ENGINEER, PWD(R &H),
SOUTH CIRCLE, TRIVANDRUM.
(IMPLEADED AS PER ORDER ON IA.NO.11815/2013 DT.30.8.13)
ADDL.R4 IMPLEADED
4. THE STATEBANK OF TRANVANCORE,
P.B.NO.91, GROUND FLOOR,
ACANCUTCHERY BUILDINGS,
M.G.ROAD, THIRUVANANTHAPURAM,
KERALA, PIN-695 001.
(IMPLEADED AS PER ORDER DT.30.1.14 IN I.A.13710/13 ).
ADDL.R3 BY ADV. SRI.SIBY MATHEW
ADDL.R3 BY ADV. SRI.PHILIP J.VETTICKATTU
ADDL.4 BY ADV. SRI.R.S.KALKURA, SC, SBT
R1,R2 BY ADDL.ADVOCATE GENERAL SRI K.A.JALEEL
SR. GOVERNMENT PLEADER SRI T.P.SAJID.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.3.14,
THE COURT ON 11-04-2013, DELIVERED THE FOLLOWING:
APPENDIX IN WPC.20604/13
EXT.P1: COPY OF "E-GOVERNMENT PROCUREMENT (E-GP) NOTICE INVITING
TENDER FOR POST QUALIFICATION TENDERS" PSQ TENDER
NO.29/SESC/2013-14.
EXT.P2: COPY OF ONLINE BANK CONFIRMATION DT.2.8.13.
EXT.P3: COPY OF BID SUBMISSION CONFIRMATION DT.2.8.13.
EXT.P4: COPY OF FINANCE BID OPENING SUMMARY.
EXT.P5: COPY OF CERTIFICATE DT.1.4.13 ISSUED BY THE EXECUTIVE
ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA.
EXT.P6: COPY OF CERTIFICATE DT.27.1.12 ISSUED BY THE EXECUTIVE
ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA.
EXT.P7: COPY OF NOTICE DT.27.7.13 ISSUED BY THE STATE BANK OF
TRAVANCORE.
EXT.P8: COPY OF GOVERNMENT ORDER GO(MS)NO.13/2013/ITD DT.9.5.13.
EXT.P8(A): COPY OF GOVERNMENT ORDER GOMS 13/2013/ITD DT.9.5.13.
EXT.P8(B): COPY OF APPENDIX MENTIONED IN THE LAST PARA.OF ADDL.EXT.P8
(A) ALONG WITH DUPLICATE COPYOF EXT.P8A.
EXT.P9: COPY OF ANNEXURE-II REQUISITION FOR E-PAYMENT.
RESPONDENTS' EXTS:
EXT.R3(A): COPY OF GO(MS)NO.11/2013/ITD DT.10.4.13.
EXT.R3(B): COPY OF LETTER NO.AGM/ADC/INB/704 DT.24.8.13 ISSUED BY THE
STATE BANK OF TRAVANCORE.
EXT.R2(A): COPY OF GO(MS)NO.11/2013/ITD DT.10.4.13 ALONG WITH THE REVISED
APPENDIX.
EXT.R2(B): COPY OF LETTER NO.AGM/ADC/INB/704 DT.24.8.13 BY THE ASSISTANT
GENERAL MANAGER, STATEBANK OF TRAVANCORE, POOJAPPURA.
EXT.R2(C): COPY LETTER NO.KSITM/E-PROC/3584 /1513 DT.24.8.13 ISSUED BY
THE PROGRAMME IMPLEMENTING OFFICER (E-PROCUREMENT),
KERALA IT MISSION.
EXT.R3(C): COPY OF EXTRACT OF RELEVANT PAGES OF THE TENDER
APPLICATION FORM.
TRUE COPYOF
P.S.TO JUDGE
dsn
ANIL K.NARENDRAN, J.
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W.P.(C.)No.20604 of 2013
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DATED THIS THE 11th DAY OF APRIL, 2014
JUDGMENT
The petitioner, an 'A' Class registered contractor of the Kerala Public Works Department, has approached this Court in this Writ Petition seeking a writ of mandamus commanding the respondents 1and 2 to consider his e-tender submitted pursuant to Exhibit P1 notification in the light of Exhibit P3 Bid Submission Confirmation and Online Payment Information acknowledging receipt of tender details along with online payment of EMD and tender submission fee as valid and eligible for consideration of award of work under Exhibit P1 notification and for other consequential reliefs.
2. The second respondent issued Exhibit P1 notification inviting online tenders/bids for the work of `improvements to Vennikkulam-Ranni Road-1st reach (km. 0/00 to 5/000)' with an estimate of `2,98,19,048/-, from registered bidders of the Public Works Department (PWD) who have successfully completed at least one similar work costing more than 40% of the estimate Probable W.P.(C).No.20604/13 -2- Amount of Contract (PAC) of the work during the last 5 years. As per Exhibit P1 notification, Earnest Money Deposit (EMD) of `7,45,500/- and Tender Submission Fee of `26,250/- should be remitted through online payment mechanism for e-Government Procurement system of Government of Kerala. The last date and time of receipt of tender/bids was 02/08/2013 upto 4 pm and the date and time of opening of tender was 08/08/2013 at 11 am. Online tenders/bids are to be accompanied with a preliminary agreement executed in Kerala Stamp Paper worth `100/-. Tenders/bids received online without EMD, cost of tender documents/bid submission fee and preliminary agreement will not be considered and shall be summarily rejected.
3. According to the petitioner, on 02/08/2013, he submitted e-tender pursuant to Exhibit P1 notification with the requisite details and made online payment of tender fee and EMD, as acknowledged by the tendering authority in Exhibit P2 Online Bank Confirmation and Exhibit P3 Bid Submission Confirmation and Online Payment Information. Exhibit P2 indicates that the online payment made by the petitioner has W.P.(C).No.20604/13 -3- been completed successfully. The transaction status of tender fee and EMD is shown as `Paid-Subject to Bank Clearance' in Exhibit P2 and also in Exhibit P3. But, Exhibit P4 Finance Bid Opening Summary obtained from the website of the tendering authority on 17/08/2013 indicates that, out of the three tenders two are accepted and the petitioner's tender is rejected due to unsuccessful payment. The previous experience required as per Exhibit P1 notification is successful completion of at least one similar work costing more than 40% of the estimate PAC of the tendered work, during the last 5 years, which comes to less than `1.20 Crores, whereas, going by Exhibits P5 and P6 certificates 40% of the estimate PAC of some of the works already undertaken by the petitioner comes to `6.84 Crores and `2.40 Crores, respectively. Exhibit P7 notice issued by the State Bank of Travancore (SBT), which has been identified as the only Bank empowered to accept tender fee and EMD of Public Works Department, mention online transaction through RTGS/NEFT as a second option to deposit earnest money. Therefore, the petitioner's action of transferring the amount to SBT from his W.P.(C).No.20604/13 -4- banker viz. Indian Overseas Bank (IOB) is perfectly in order. Further, the tenderer whose tender has been accepted quoted 0.01% below the estimated rate whereas the petitioner quoted 7.77% below the estimated rate. The difference being 7.76%, the acceptance of the petitioner's tender would result in a beneficial gain of `23.14 Lakhs to the Government. It was in such circumstances, the petitioner has approached this Court in this Writ Petition, seeking a writ of mandamus commanding respondents 1 and 2 to consider his e-tender submitted pursuant to Exhibit P1 notification as valid and eligible for consideration of award of work under the said notification and for other consequential reliefs.
4. By order dated 23/08/2013, this Court, while admitting the Writ Petition, granted an interim stay of further proceedings pursuant to Exhibit P1, for a period of one month, and directed respondents 1 and 2 to file an affidavit as to the facts and figures. This Court made it clear that the order will not bar the way of respondents 1 and 2 in getting necessary confirmation from the SBT, where the account of the Department W.P.(C).No.20604/13 -5- is maintained, as to the satisfaction of the due amount by the petitioner through the Bank of the petitioner, i.e., South Indian Bank, in exercise of the 2nd option as stipulated in Exhibit P7 and if the remittance has been made on time, to open the price bid of the petitioner as well and to proceed with further steps for allocation of the tender. The said interim order was extended from time to time and later it was extended until further orders on 19/02/2014.
5. The tenderer, whose tender has been accepted by the Department, filed I.A.No.11815/13 to get himself impleaded as an additional respondent in this Writ Petition. On 30.8.3013, this Court allowed the said prayer and he was impleaded as additional 3rd respondent. The said respondent filed counter affidavit contending, inter alia, that the method in which payments are to be made before the bid is not an auxiliary or subsidiary condition with the main object to be achieved. As seen from Exhibits P2 and P3, the petitioner attempted to submit his tender online and tried to make payment through his bank, viz.; Indian Overseas Bank, Kumbanad. In Exhibits P2 and P3 the transaction status of tender fee and EMD is shown as subject to Bank clearance by W.P.(C).No.20604/13 -6- Bank. Exhibit P4 shows rejection of petitioner's tender due to unsuccessful payment, while the tenders submitted by the additional 3rd respondent and another were accepted. The Government, vide Exhibit R3(a) order dated 10/04/2013, revised the process flow document for online payment system of e- Procurement as outlined in the appendix to the said Government order. As per the said appendix the bidder shall make online payment either using his/her internet banking enabled account with SBT or through other bank accounts through NEFT payment gateway of SBT. It is made clear that other inter-bank remittance channels viz. RTGS and GRPT are not available for e-tender process. Therefore, the contention of the petitioner that Exhibit P7 notice issued by SBT permits online transaction through RTGS/NEFT from any Bank is incorrect. Exhibit R3(b) communication of SBT shows that the petitioner made remittance of tender fee and EMD through RTGS, which is not a valid mode of payment in terms of Exhibit R3(a). Petitioner's bid was rejected at the threshold itself due to unsuccessful payment of tender fee and EMD and hence no interference of this Court is W.P.(C).No.20604/13 -7- called for. The additional 3rd respondent has also filed I.A.No.13547/2013 to vacate the interim order passed on 23/08/2013 in this Writ Petition.
6. The 2nd respondent filed counter affidavit raising similar contentions. Relying on Exhibit R2(a) Government order (same as Exhibit R3(a) in the counter filed by Addl. 3rd respondent) it was contended that, the online payment mechanism has only two options, viz. SBT internet banking or transfer through SBT's NEFT payment gateway. It is also made clear that other inter-bank remittance channels namely, RTGS and GRPT are not available for e-tender process. Exhibit R2(b) communication (same as Exhibit R3(b) in the counter filed by Addl. 3rd respondent) is to the effect that the remittance of the petitioner was through RTGS mode which is not a valid mode of payment as per Exhibit R2(a). Exhibit R2(b) was forwarded to the 2nd respondent along with Exhibit R2(c) covering letter of the Programme Implementation Officer of e-Procurement. The 2nd respondent further contended that, the status of tender fee and EMD shown as `Paid-Subject to Bank clearance' does not mean that payment has been made successfully. As per the direction W.P.(C).No.20604/13 -8- from IT Cell in the office of the Chief Engineer received on 29/06/2013, it has been informed that only those bids in which payment status is shown as `Success' alone need to be accepted. In other cases the tender fee and EMD are not retained in the Government account and such bids are to be rejected. The work experience produced by the petitioner has no relevance as the petitioner's tender has been rejected due to unsuccessful payment of tender fee and EMD. Hence no interference of this Court is called for.
7. To the counter affidavit filed by the 2nd respondent and that of the additional 3rd respondent, the petitioner filed separate reply affidavits, reiterating the contentions in the Writ Petition. It was pointed out that, Exhibit R3(a) Government order has been subsequently modified by Exhibit P8 Government order dated 09/05/2013 as per which e-Payment of tender fee and EMD can be through NEFT/RTGS also. A copy of the very same Government order has been produced as Exhibit P8(a) along with the reply affidavit to the counter filed by the 2nd respondent. It was also contended that Exhibit R3(a) does not form part of the tender document and that Exhibit P8 order will prevail over W.P.(C).No.20604/13 -9- Exhibit R3(a). If there is any ambiguity or confusion regarding mode of payment by RTGS/NEFT the petitioner cannot now be blamed. To implead SBT as an Addl. respondent, the petitioner filed I.A.No.13710/2013 and by order dated 30/01/2014 the Bank was impleaded as Addl. 4th respondent in the Writ Petition.
8. On 19/03/2014, I heard arguments of the learned Senior Counsel for the petitioner, the learned Special Government Pleader for respondents 1 and 2, learned counsel for the Addl. 3rd respondent and learned Standing Counsel for the Addl. 4th respondent and the case was reserved for judgment.
9. On 20/03/2014, the petitioner filed I.A.No.4487/2014 producing as Exhibit P8(b) the Appendix to Exhibit P8(a) Government order. On 21/03/2014, the learned Standing Counsel for the Addl. 4th respondent produced a legible copy of Exhibit R3
(b) letter, along with a memo. On 22/03/2014, the Addl. 3rd respondent filed I.A.No.4525/2014 to accept additional document and affidavit. The additional document produced as Exhibit R3(c) is the relevant pages of Exhibit P1 tender notification, in which the mode of payment for EMD and tender fee is prescribed [at page 6 of Exhibit R3(c)] making specific reference to Exhibit R3 W.P.(C).No.20604/13 -10-
(a) Government order dated 10/04/2013. Going by Exhibit R3(c) the bidder shall make online payment either using his/her internet banking enabled account with SBT or through other bank accounts through NEFT payment gateway of SBT. It is made clear that other inter-bank remittance challans are not available for e- tender process. On 25/03/2014, the petitioner filed counter affidavit to the additional affidavit filed by the Addl. 3rd respondent, contending that, NEFT and RTGS systems are available for e-payment, relying on Exhibit P9 requisition for e- payment attached with the tender form. As Exhibit P1 tender notification made applicable all other existing conditions related to PQ tender of Kerala PWD, Exhibit P8 Government order also should be deemed applicable to the subject tender.
10. On 25/03/2014 at 1.30 pm the case was listed in Chambers and at the request of both sides it was adjourned to 28/03/2014 at 1.15 pm. On 28/03/2014 further arguments were heard and the case was reserved for judgment.
11. The learned Senior Counsel for the petitioner contended that, e-Payment of tender fee and EMD can be made W.P.(C).No.20604/13 -11- through RTGS also and in such circumstances the rejection of the petitioner's tender stating the reason `unsuccessful payment' is arbitrary and illegal. If there is any ambiguity or confusion regarding mode of payment by RTGS/NEFT the petitioner cannot be blamed as the said ambiguity or confusion has been created by the Government and the Government cannot be allowed to take advantage of their own folly or mistake. To buttress this contention the learned Senior Counsel relied on the judgment of this Court in Secretary, Department of Irrigation vs. Millars Machinery Co. (1985 KLT 1084). Relying on the judgment of Delhi High Court in Bharat Sanchar Nigam Ltd. vs. Haryana Telecom Ltd. and another (2010 (6) RAJ 351) and judgment of Madras High Court in Tata Capital Ltd. vs. Rani [2010 (3) RAJ 419 (Mad.)] the learned counsel contended that, in interpreting documents ambiguities are to be construed unfavorably to the drafter by applying the doctrine of `contra proferentem'. The judgment of the Apex Court in Poddar Steel Corporation Vs. Ganesh Engineering Works (1991 (3) SCC 273) was relied on in order to contend that remittance of tender fee and EMD is only a W.P.(C).No.20604/13 -12- secondary or ancillary condition of the tender and not a mandatory or primary condition.
12. Per contra, the learned Special Government Pleader for respondents 1 and 2 and the learned counsel for the Addl. 3rd respondent contended that, going by Exhibit R3(a) Government order the two options available to a bidder for making e-payment are either by using his/her internet banking enabled account with SBT or through other bank accounts through NEFT payment gateway of SBT. Exhibit R3(b) communication of SBT shows that the petitioner made remittance of tender fee and EMD through RTGS, which is not a valid mode of payment in terms of Exhibit R3(a). Exhibit R3(c) prescribes the mode of payment for tender fee and EMD, making specific reference to Exhibit R3(a) Government order. They further contended that, the remittance of tender fee and EMD are mandatory and primary conditions and the tender submitted by the petitioner was rightly rejected, hence no interference is called for. It was further contended that the scope of judicial review in cases of award of contract by Government is very limited.
13. The learned Standing Counsel for the Addl. 4th W.P.(C).No.20604/13 -13- respondent reiterated the stand taken by the Bank in Exhibit R3
(b) that the remittance made by the petitioner through RTGS mode was not a valid mode of payment as per Exhibit R3(a).
14. In the light of the contentions raised by both sides, the first question which arises for consideration is as to whether the e-payment of tender fee and EMD made by the petitioner through RTGS mode is a valid mode of payment in terms of Exhibit P1 notification. Exhibit P1 tender notification makes it abundantly clear that tender fee and EMD should be remitted through online payment mechanism for e-Procurement system of Government of Kerala and that online tenders/bids received without EMD, cost of tender documents/bid submission fee and preliminary agreement will not be considered and shall be summarily rejected. The additional document produced as Exhibit R3(c), along with I.A.No.4525/2014 filed by the Addl. 3rd respondent, is the relevant pages of Exhibit P1 tender notification in which the mode of payment for EMD and tender fee is prescribed [at page 6 of Exhibit R3(c) notification] making specific reference to Exhibit R3
(a) Government order, which reads thus; "Payment for Earnest Money Deposit (EMD) & Bid Submission Fee/Cost of tender forms W.P.(C).No.20604/13 -14- (Ref: G.O. (Ms.) No. 11/2013/PWD dated 10/4/13)." Going by Exhibit R3(c) the bidder has to make online payment either using his/her internet banking enabled account with SBT or by transfer through other bank accounts through NEFT payment gateway of SBT. When the bidders select NEFT payment gateway a prefilled challan will be made available online by SBT based on the parameter given by e-Procurement system, which the bidder has to take printout. With the challan the bidder will have the following two options; (i) to make online NEFT payment using internet banking of the bank in which the bidder holds his account and by adding account number in the challan as an inter-bank beneficiary or (ii) transfer from his bank account through NEFT. Bidder should exercise this option 48 hours before the closing of bid. It will be clearly mentioned in the challan that payment mode will be through NEFT only. Other inter-bank remittance challan are not available for e-tender process. The mode of payment referred to above is a verbatim reproduction of the mode of payment prescribed in the revised process flow document for online payment system of e-Procurement as outlined in the W.P.(C).No.20604/13 -15- appendix to Exhibit R3(a) Government order. There is nothing in Exhibit P8 Government order to infer that the bidders are permitted to make payment by RTGS mode as well, merely for the reason that under `Payment Mode' section two check boxes "SBT" & "SBT NEFT/RTGS" have been provided for enabling e- payment of tender fee and EMD. Nowhere in Exhibit P8 RTGS has been mentioned as one mode of payment for remitting tender fee and EMD, on the other hand, in Exhibit R3(a) Government order makes it abundantly clear that inter-bank remittance channels viz. RTGS and GRPT are not available for e-tender process. Similarly, relying on Exhibit P9 requisition for e-payment it cannot be inferred that the bidders are permitted to make payment by RTGS mode. Since Exhibit P1/R3(c) tender notification prescribes e-payment of EMD and tender fee either by using the bidder's internet banking enabled account with SBT or by transfer through other bank accounts through NEFT payment gateway of SBT and make it abundantly clear that other inter- bank remittance channels viz. RTGS and GRPT are not available for e-tender process, the remittance of tender fee and EMD made W.P.(C).No.20604/13 -16- by the petitioner through RTGS mode can never be treated as a valid mode of payment in terms of Exhibit P1/R3(c) tender notification and I hold so.
15. The second question which arises for consideration is as to whether there is any ambiguity or confusion in Exhibit P1/R3(c) tender notification regarding the mode of payment of tender fee and EMD, which would entitle the petitioner to take shelter under the well settled principle that `no man can be allowed to take advantage of his own folly or mistake' or the doctrine of `contra proferentem' which stipulates that `in interpreting documents ambiguities are to be construed unfavorably to the drafter'. In the Writ Petition the petitioner has not disclosed the mode in which he has effected payment of tender fee and EMD. His contention in the writ petition is that, a second option to deposit earnest money indicated in Exhibit P7 notice issued by SBT is transacting online through RTGS/NFET and therefore, the petitioner's action of transferring the amount to the beneficiary bank from the petitioner's bank viz. Indian Overseas Bank is perfectly in order. It is not in dispute that the document produced by the Addl. 3rd respondent as Exhibit R3(c) W.P.(C).No.20604/13 -17- along with I.A.No.4525/2014 is the relevant pages of Exhibit P1 tender notification in which the mode of payment for EMD and tender fee is prescribed making specific reference to Exhibit R3(a) Government order. The mode of payment prescribed in Exhibit R3
(c) is a verbatim reproduction of that prescribed in the appendix to Exhibit R3(a) Government order, which make it abundantly clear that other inter-bank remittance channels viz. RTGS and GRPT are not available for e-tender process. In such circumstances, the petitioner cannot be heard to contend that there is any ambiguity or confusion in the tender notification regarding the mode of payment of tender fee and EMD. Exhibit P7 notice relied by the petitioner is issued neither by the Government nor by the 2nd respondent, the tendering authority, and it is in relation to a workshop conducted by SBT on e- tendering at Kottayam. In the Writ Petition the petitioner has no case that he was misled by Exhibit P7 notice. Moreover, going by Exhibit P3, the petitioner received Bid Submission Confirmation on 02/08/2013 at 2.05 pm, whereas, the work shop on e- tendering was scheduled to commence only at 4 pm on that day. W.P.(C).No.20604/13 -18- Similarly, the writ petition is silent about Exhibit P8 Government order dated 09/05/2013 and in such circumstances the petitioner cannot make out a case of ambiguity or confusion in the tender notification relying on the said Government order. Moreover, there is nothing in Exhibit P8 Government order to infer that the bidders are permitted to make payment by RTGS mode as well. Nowhere in Exhibit P8 RTGS has been mentioned as one mode of payment for remitting tender fee and EMD, on the other hand, in Exhibit R3(a) Government order makes it abundantly clear that inter-bank remittance channels viz. RTGS and GRPT are not available for e-tender process. As the petitioner failed to make out even a prima facie case of ambiguity or confusion in the mode of payment of tender fee and EMD prescribed in Exhibit P1 tender notification he is not entitled to take shelter under the well settled principle that `no man can be allowed to take advantage of his own folly or mistake' or the doctrine of `contra proferentem' and hence the judgments in Millars Machinery Co.'s case (supra), Bharat Sanchar Nigam Ltd.'s case(supra) and Tata Capital Ltd.'s case (supra) will not have any application to the W.P.(C).No.20604/13 -19- facts of the present case.
16. The third question which arises for consideration is as to whether remittance of tender fee and EMD is only a secondary or ancillary condition of the tender and not a mandatory or primary condition. Exhibit P1 tender notification mandate remittance of tender fee and EMD through online payment mechanism for e-Procurement and also provided for summarily rejection of tenders/bids which are not received along with online remittance of tender fee and EMD. The specific contention raised by the 2nd respondent was that, the status of tender fee and EMD shown as `Paid-Subject to Bank clearance' in Exhibits P2 and P3 does not mean that payment has been made successfully and as per the direction from IT Cell in the office of the Chief Engineer, only those bids in which payment status is shown as `Success' alone need to be accepted. Going by Exhibit R3(a) payment made through NEFT by non-SBT customers at their bank branches or through their bank's internet banking will be credited to an internal NEFT routing account maintained by SBT, Trivandrum Treasury Branch, as per NEFT settlement timings of Reserve Bank of India. As explained in Exhibit R3(b), the bidder has to make a W.P.(C).No.20604/13 -20- consolidated single payment for tender fee and EMD through NEFT mode, to the unique account number generated by the system. This unique number is dynamically generated by the system and will be different for different bidders and different bids. As the petitioner has made the remittance through RTGS mode, which is not a valid mode of payment as per Exhibit P3(a) Government order, the said remittance is lying in the pooling account of Government of Kerala awaiting advice as to the mode of repayment. This being the factual position, the contention raised by the petitioner that remittance of tender fee and EMD is only a secondary or ancillary condition of the tender and not a mandatory or primary condition is also liable to be rejected.
17. In Poddar Steel Corporation's case (supra) relied on by the learned Senior Counsel for the petitioner, the Apex Court classifying the requirement of tender notice into non-essential or ancillary, held that if it is essential, the same is required to be enforced rigidly, but in the latter case the same may be deviated from. But, that was a case in which as per the relevant clause, the tender has to be accompanied by earnest money deposit either by cash or by demand draft drawn on the State Bank of W.P.(C).No.20604/13 -21- India. Instead of taking demand draft drawn on the State Bank of India, the appellant in that case sent certified cheque of Union Bank of India. The contention raised before the Apex Court was that that certified cheques are as good as cash, which is one of the mode of payment stipulated in the tender notice and that such an irregularity could have been validly waived by the tendering authority. It was in such circumstances, the Apex court held that certified cheque of Union Bank of India drawn on its own Branch must be treated as sufficient for the purpose of achieving the object of the condition and it is not correct to hold that the tendering authority had no authority to waive the technical literal compliance of the relevant Clause.
18. But, in the case on hand, Exhibit P1 tender notification categorically stipulates online payment of tender fee and EMD and specifically provides that tenders/bids received online without EMD and tender fee will not be considered and shall be summarily rejected. In addition to this, going by Exhibits R3(a) and R3(c), a bidder opting NEFT payment mode has to follow certain procedures, which cannot be followed when he is opting for a W.P.(C).No.20604/13 -22- payment under RTGS mode. As contended by the 2nd respondent, the status of tender fee and EMD shown as 'Paid Subject to Bank Clearance' in Exhibits P2 and P3 does not mean that payment has been made successfully and as per the direction from IT Cell in the Office of the Chief Engineer, only those bids in which payment status is found as 'Success" alone need to be accepted. In such circumstances, the conditions in Exhibit P1 tender notification regarding payment of tender fee and EMD are mandatory or essential in nature requiring literal compliance and cannot be termed as secondary or ancillary conditions.
19. In Ram Gajadhar Nishad vs. State of U.P. and others (1990 (2) SCC 486), it was held by the Apex Court that the non-submission of the solvency certificate within the last date of submission of tender and current character certificate as required by the tender conditions having not been complied with, the tender submitted by the particular party, could not have been accepted. In Sorath Builders vs. Shreejikrupa Buildcon Ltd. and another (2009 (11) SCC 9), the Apex Court was concerned with W.P.(C).No.20604/13 -23- late submission of the pre-qualification documents and the effect thereof. In the said case, the respondent No.1 had submitted certain documents after 3 days of the last date of submission. Although, his bid was lower than that of the appellant, the same was rejected. Upholding such rejection, the Apex Court held that the respondent No.1 was himself to blame for late submission of documents. In Glodyne Technoserve Ltd. vs. State of Madhya Pradesh and others (2011 (5) SCC 103) also when there was non-compliance of conditions of NIT by submitting qualified documents, it was held that although the appellant had a valid and active ISO certification, which he did not submit along with the bid documents, may be due to inadvertence, however, whether such explanation was to be accepted or not lay within the discretionary powers of authority inviting bids. In that case, rejection of the bid of the appellant was held not perverse or arbitrary.
20. Applying the principles laid down in the aforesaid decisions and having regard to the fact that the petitioner did not make payment of tender fee and EMD in the mode prescribed in the tender notification, there was nothing wrong on the part of W.P.(C).No.20604/13 -24- respondents 1 and 2 in not considering his tender on merit applying the sound discretion in the matter. It is trite law that, in order to examine the validity of award of contract, it is essential for the person approaching the Court with a grievance to establish that the decision making process is faulty, or it is vitiated by mala fides, unreasonableness or arbitrariness. The award of contract in the case of a private party or by a public body or the State is essentially a commercial transaction for which commercial considerations shall have precedence. It is open to the State to evolve its own methodology for arriving at a decision. The courts shall exercise judicial restraint in such administrative actions as they do not sit as a Court of appeal to substitute its own views. In Siemens Public Communication Networks Pvt. Limited and another vs. Union of India and others (2008 (16) SCC 215), after analyzing the judicial precedents the Apex Court concluded as follows:
" When the power of judicial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. W.P.(C).No.20604/13 -25- In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, Courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna."
The petitioner failed to establish that the decision making process in the award of contract is in any way vitiated by mala fides, unreasonableness or arbitrariness. In such circumstance, I find no merit in this Writ Petition and the same is dismissed with no order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE dsn