Madras High Court
M/S.Saarg Rr India Limited vs Chairman And Managing Director on 25 August, 2011
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.08.2011 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA WP.No.13950/2011 & MP.Nos.2 and 3/2011 M/s.SAARG RR India Limited rep.by its Authorised Signatory S.Ramabadhran, Mylapore, Chennai 600 004. .. Petitioner Versus 1.Chairman and Managing Director Oil and Natural Gas Corporation Limited 3rd Floor, 11-High, ONGC Office Complex, Sion-Bandra Link Road, Mumbai-400 017. Also having its Regional Office at Thalamuthu Natarajar Building, No.1, Gandhi-Irwin Road, Egmore, Chennai 600 008. 2.The Executive Director Chief Drilling Service Oil and Natural Gas Corporation Limited 11-High, ONGC Office Complex, Sion-Bandra Link Road, Mumbai-400 017. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the impugned order dated 26.03.2010 passed by the 2nd respondent, quash the same and consequently, direct the 1st respondent to allow the petitioner to participate in all the tenders floated by the 1st respondent and accept the tender submission of the petitioner for evaluation and qualification including that of the current tender No.MR/WS/MM/CT/CH/MODRIG/2011/P66ZJC11002 dated 18.02.2011 for charter hire of one number of offshore modular work over rig having 6" drain hole drilling capacity. For Petitioner : Mr.V.T.Gopalan, Senior Counsel for M/s.Chennai Law Associates For Respondents : Mr.G.Masilamani, Senior Counsel for M/s. King and Partridge ORDER
Though the miscellaneous petitions are listed today, by consent of the learned Senior Counsel appearing for the petitioner and the learned Senior Counsel appearing for the respondents, the main writ petition itself is taken up for final disposal.
2. The petitioner has come forward with this writ petition seeking for the relief of quashing the order of the 2nd respondent dated 26.03.2010 and consequently, direct the 1st respondent to allow the petitioner to participate in all the tenders floated by the 1st respondent and accept the tender submitted by the petitioner for evaluation and qualification including that of the current tender No.MR/WS/MM/CT/CH/MODRIG/2011/P66ZJC11002 dated 18.02.2011 for charter hire of one number of offshore modular work over rig having 6" drain hole drilling capacity.
3.1. The factual background of this matter arises out of a tender floated by the respondents dated 18.01.2008 for hiring operation and maintenance service of 3 off-shore jack up rigs, viz., Sagar Sakthi, Sagar Kiran and Sagar Jothi. Originally the respondents floated a tender on 31.07.2007 and modified the tender subsequently on 18.01.2008. Along with the tender document, an addendum was issued to the tender document and the relevant clauses are extracted here under:-
1.1 [a] The Bidder should be an Operation and Maintenance / Offshore drilling contractor and should have minimum experience of 3 [three] years on Offshore drilling Rigs. Out of which, at least, one year experience should be on Jackup rig. They should have executed at least 1 [one] such contract during preceding five years and should submit documentary evidence to this effect.
[b] In case the bidder is an Indian Company / Indian Joint Venture company, the Indian Company / Indian Joint Venture company or its technical Collaborator/Joint Venture partner should meet the criteria laid down at 1.1[a].
1.2. Details of experience and past performance of the bidder and the collaborator [in case of collaboration] or of joint venture partner [in case of a joint venture], on works/jobs done of similar nature in the past and details of current work in hand and other contractual commitments, indicating areas and clients are to be submitted along with the techno commercial bid, in support of the experience laid down 1.1 [a] and 1.1 [b] above.
1.4 [a] Bidders should submit Memorandum of Understanding [MOU]/Agreement with their technical collaboration/Joint Venture partner [in case of joint venture] clearly indicating their roles under the scope of work.
1.4 [c] MOU/Agreement concluded by the bidder with technical collaboration/joint venture partner [in case of joint venture], should also be addressed to ONGC, clearly stating that the MOU/Agreement is applicable to this tender and shall be binding on them for the contract period."
3.2. The petitioner intended to submit its bid for the aforesaid tender and as the petitioner did not possess technical expertise and experience for executing the works contained in the aforesaid tender, it entered into a Memorandum of Understanding [MOU] dated 24.01.2008 with another company known as "Miden Systems", Nigeria for support through a technical collaboration for off shore jack up rigs Operations and Maintenance services and related activities and technical know how and skills including assistance in selection of crew and equipment.
3.3. Thereafter, the petitioner submitted its bid on the strength of the MOU signed with Miden Systems, Nigeria, for hiring of Operation and Maintenance services for ONGC rigs-Sagar Sakthi, Sagar Kiran and Sagar Jothi. The petitioner along with the bid submitted the contract signed by Miden Systems with MOBIL producing Nigeria Unlimited provided by Miden systems to prove its experience in the works covered in the tender.
3.4. As per the tender conditions precedent for participation in the said tender, the petitioner furnished a Bank guarantee dated 28.02.2008 for a sum of Rs.2 crores in favour of the 1st respondent as bid security. The Guarantee cover under the Deed of Guarantee was initially from 28.02.2008 to 30.06.2008 and later it was extended up to 30.09.2008. The petitioner received a letter dated 05.05.2008 from the 1st respondent stating that the petitioner's bid was under evaluation and sought for certain confirmations and documents. In response to the said letter, the petitioner furnished the required documents. The Miden Systems, Nigeria by enclosing the letter dated 08.07.2008 from Mobil Producing Nigeria Unlimited, had addressed a letter dated 09.07.2008 to the 1st respondent, confirming the experience criteria and the agreement entered between Mobil Producing Nigeria Unlimited and Miden Systems Limited, Nigeria.
3.5. The respondent issued a Firm Order / Letter of Award [LOA] dated 07.08.2008 to the petitioner after scrutinising the documents submitted by the petitioner and the technical Collaborator. The petitioner has further stated the sequence of events relating to the earlier tender, viz., cancellation of Letter of Award on certain allegations, invocation of Bank Guarantee etc. Apart from the said factor, it is also stated by the petitioner about the receipt of the show cause notice dated 14.10.2009 from the Enquiry Officer of the 1st respondent relating to the cancellation of the aforesaid Firm Order on the allegation of violations in not complying with the conditions of the Letter of Award as well as the terms and conditions of the tender and the doubt raised about the genuineness of the documents submitted by the petitioner and calling upon the petitioner to show cause as to why the business dealings that the petitioner should not be severed by the 1st respondent and be considered for banning of future business dealings with the 1st respondent. The petitioner sent a reply dated 10.11.2009 and also sent several representations dated 07.12.2009; 14.12.2009; 15.01.2010; 15.03.2010 and 25.03.2010. Under the above said circumstances, the 1st respondent had floated a new tender under No.MR/WS/MM/CT/CH/MODRIG/2011/P66JC11002 dated 18.02.2011 for charter hire of one number of offshore modular work over rig having 6" drain hole drilling capacity. The entire process of bidding was made online by the 1st respondent as e-bidding. On application for e-bidding and payment of prescribed fees of Rs.45,000/-, the petitioner was allotted a password to access the e-tender and pre-bid conference to be held on 17.03.2011.
3.6. The petitioner's team had attended to the pre-bid conference on 17.03.2011 and only at the conference hall, it was informed to the shock and surprise of the petitioner that the respondent had already issued a ban order dated 26.03.2010 whereby it had decided to stop any further business with the petitioner and its allies for participation in future tenders of the 1st respondent, whatsoever for a period of two years from the date of issue of the said letter, hence any tender submission made by the petitioner will not be considered for evaluation or qualification.
3.7. Thereafter, the petitioner's team had immediately informed to the 1st respondent that it had not received any communication of such alleged letter dated 26.03.2010 from the 1st respondent till date. Further, the petitioner had also immediately made representation to the 1st respondent to that effect vide its letters dated 05.04.2011; 06.06.2011; 10.06.2011 and 11.06.2011 and requested to lift the ban order imposed erroneously on them and allow the petitioner to participate in the current tender dated 18.02.2011 by the 1st respondent.
3.8. Thereafter, the petitioner did not receive any reply from the 1st respondent till date. In the meanwhile, the 1st respondent had announced in its e-bidding web-site that the last date for submission of the documents for the current tender dated 18.02.2011 was to close by 17.06.2011. The 1st respondent during previous discussions had given a copy of the circular No.23/2010 dated 09.07.2010 regarding the amendment made in the banning procedure and 'consequences of termination' clause. As per the said circular of the 1st respondent, it is seen that the clause 'consequences of termination' in the tender documents are to be amended subsequent to the circular so as to give effect of the ban order from the date of issue of the order and in all previous tenders prior to the circular date 09.07.2010 to the condition followed being to give effect to the ban order from the date of termination of the contract. Though not agreeing but for argument sake, even if the impugned ban order is said to be applicable to the petitioner, even then, it arises only out of the firm order dated 07.08.2008 which is prior to the aforesaid circular dated 09.07.2010 and hence, the impugned ban order, if at all said to be imposed will only have effect from the date of termination of the said firm order which is on 26.09.2008 and not with effect from 26.03.2010. In such case, by now, the alleged two years ban period also got expired as on 25.09.2010 and the petitioner is entitled to apply for the current tender dated 18.02.2011.
3.9. Under the above said circumstances, the petitioner has filed the present writ petition with the above said prayer seeking for the relief of quashing the order passed by the 2nd respondent dated 26.03.2010 with the consequential prayer to direct the 1st respondent to allow the petitioner to participate in all the tender floated by the 1st respondent including the current tender and accept the tender submitted by the petitioner after evaluation and qualification of the current tender.
4.1. The respondents filed a common counter, inter-alia, denying the averments and allegations contained in the affidavit filed by the petitioner except those that are specifically admitted by them. It is stated that in respect of the earlier tender floated by the respondents, the petitioner emerged as L1. It is stated that the Letter of Award was to be issued on 07.08.2008. As serious allegations were levelled against the petitioner creating genuine suspicion, in clause 9 of the LOA it was provided that the LOA is subject to verifications by ONGC. The following documents were submitted by the petitioner:-
a. Verification from M/s.Miden System Limited regarding MOU between M/s.Miden System Limited and SAAGRR Infra Chennai.
b. Verification from M/s.Mobil Producing Nigeria Ltd., regarding agreement [vide agreement No.MPN/O&W 0906] between M/s.Mobil Producing Nigeria Ltd and Miden Systems Ltd.
c. Verification of experience of M/s.Miden Systems Ltd., from the operator.
It is also to mention that the LOA was issued on 07.08.2008 without completing the verification process which would have been a time consuming and the since validity of the bid submitted by SAAG was expiring on 07.08.2008 itself. Moreover, in response to ONGC's request to SAAG on 04.08.2008 to extend the validity of its bid, SAAG had already refused the extension on 06.08.2008.
4.2. In response to the query of ONGC, the Mobil Producing Nigeria Unlimited categorically declared vide email dated 12.08.2008 that the certificate and the contract document produced by the petitioner are fraudulent documents. This e-mail was followed by a letter dated 29.08.2008 from Mobil Producing Nigeria Unlimited reiterating the contents of the email dated 12.08.2008.
4.3. The respondents further stated that for the above said declaration of Mobil Producing Nigeria Unlimited declaring that the documents furnished by the petitioner are forged one, the petitioner had no direct answer except giving a vague reply. The Miden System, Nigeria is also not giving any answer except making vague statements.
4.4. The respondents further stated about the Integrity Pact with ONGC signed by the petitioner. The respondents also stated about the issuance of notice and agreeing to extend the bid bond till 30.09.2008 and verification of documents would be provided till 11.09.2008. It is stated that the petitioner has miserably failed to prove the genuineness of the documents and the committee submitted its report dated 16.09.2008 declaring that the petitioner failed to establish the genuineness of the documents furnished by it. On receipt of the recommendations of the committee, ONGC decided to cancel the LOA and forfeit the bid bond and a letter dated26.09.2008 was issued to that effect and accordingly, the Bank Guarantee submitted by the petitioner was invoked.
4.5. The respondents also stated about the issuance of the show cause notice dated 14.10.2009 calling upon the petitioner to show cause as to why the business dealings with the petitioner should not be severed. An enquiry was conducted by giving opportunity to the petitioner and pursuant to the submission of the enquiry report, the Highest Decision Making Body, as per the decision dated 22.03.2010 accorded approval for banning effective two years from the date of issuance of the order. It is stated that the order dated 26.03.2010 was immediately sent to the petitioner and the petitioner has sent a letter dated 25.03.2010 and informed ONGC that they are aware of the contents of the enquiry report based on which the ONGC has imposed the ban on participation in future tender for a period of two years. It is stated that in view of the ban order passed on 26.03.2010, ONGC cannot have any further business dealings with the petitioner for a period of two years from 26.03.2010 and as such, the petitioner is not entitled to be considered in the tender floated on 18.2.2011.
5. Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner would put forward the following contentions in respect of the merits of the case:-
a. The impugned order which is a non speaking order is not passed by a competent authority.
b. The impugned order was passed by a quasi-judicial authority without conducting any proper enquiry and without affording reasonable opportunity to the petitioner.
c. No reason is assigned in the impugned order as to on what ground the petitioner has been prevented from participating in the tender.
d. The 2nd respondent has not officially communicated the impugned ban order dated 26.03.2010 to the petitioner and handed over the same only during the pre-bid meeting for the current tender held on 17.03.2011.
e. In all previous tenders, the condition being followed was to give effect to the ban order from the date of termination of the contract and even if the impugned ban order is said to be applicable to the petitioner, it arises only out of the firm order / Letter of Award dated 07.08.2008 which is prior to the Circular dated 09.07.2010 and as such, the impugned ban order will only have effect from the date of termination of the said Firm order which is on 26.09.2008 and not with effect from 26.03.2010 and by now, the alleged two year ban period also got expired as on 25.09.2010 and as such, the petitioner is entitled to apply for the current tender dated 18.02.2011.
6. As Mr.G.Masilamani, learned senior counsel appearing for the respondents raised a preliminary objection on the ground of lack of jurisdiction to entertain the writ petition filed by the petitioner, Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner has put forward the following contentions:-
a. The tender was downloaded by the petitioner from a web-site at the petitioner's office at Chennai which comes well within the jurisdiction of this court and the tender fee of Rs.45,000/- was also paid at Chennai through on-line.
b. The respondents' branch office is also located at Chennai and all communications / correspondences addressed to the respondents by the petitioner are written from Chennai and invariably, all communications from the respondents were addressed to the petitioner's address at Chennai and were received by the petitioner at Chennai.
c. The current tender dated 18.02.2011 floated by the 1st respondent itself is a E-Bidding Process where the procurement of the tender documents and submission of the documents were all made on-line by the 1st respondent and as such, no particular jurisdiction can be confined to such an E-Bidding Process.
d. The access to the tender documents is not open to all. But only on allocation of password and payment of the required fees by the 1st respondent, the petitioner had received the allotment of password from the 1st respondent via E-Mail and received the same at Chennai on 03.03.2011.
e. A Division Bench of this court has held in 2006-1-CTC-732 [Ex.RECT [MP] A.MADURAI VEERAN No.7779447K VS. UNION OF INDIA, REP.BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI AND OTHERS] referring to the decision of the Hon'ble Apex Court reported in 1994 [4] SCC 711 [ONGC Vs. UTPAL KUMAR BASU AND OTHERS], that a liberal view should be taken on the question of jurisdiction.
f. While determining the cause of action, one has to consider whether such facts constitutes a material, essential or integral part of the cause of action even if a small faction of the cause of action arises within the jurisdiction of the particular court, the Court would have territorial jurisdiction to entertain the petition.
g. The prayer in the writ petition is two fold. One is for certiorarified mandamus to quash the impugned order dated 26.03.2010 placing the petitioner on holiday [blacklisting] and the other part is to enable the petitioner to participate in the tender process. Therefore, the cause of action has to be viewed in the light of both the aforesaid prayers. As far as the first part is concerned, the correspondences including the show cause notice were received by the petitioner at Chennai. Therefore, the receipt of the said show cause notice in Chennai constitutes or form part of material, essential and integral part of the cause of action. The explanation given, notice of hearing all of which culminating in the communication of the order pursuant to the show cause notice received at Chennai forms the material, essential and integral part of the cause of action.
h. As regards the second part of the cause of action relating to the mandamus, it is relevant to state that the respondent is a Public Sector Undertaking having offices throughout India including Chennai and already it is stated that the current tender dated 18.02.2011 is floated through on-line which was viewed and downloaded by the petitioner at the petitioner's office at Chennai.
i. It is contended that the Model Contract conditions in the tender confines the jurisdiction to Mumbai courts, but the contract between the petitioner and the respondent was not signed at all in view of the cancellation of the contract at the stage of Letter of Award itself.
8. The learned senior counsel appearing for the petitioner, in support of his contentions, would place reliance on the following decisions:-
1.2006 [1] CTC 732 [Ex.RECT [MP] A.MADURAI VEERAN No.7779447K VS. UNION OF INDIA, REP.BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI AND OTHERS];
2.2010 [9] SCC 496 [KRANTHI ASSOCIATES [P] LTD., Vs. MASOOD AHAMED KHAN];
3.1985 [3] SCC 398 [UNION OF INDIA Vs. TULSIRAM PATEL];
4.1978 [1] SCC 405 [MOHINDER SINGH GILL & ANOTHER Vs. THE CHIEF ELECTION COMMISSIONER & Ors]; and 5.2003 [6] SCC 545 [UNION OF INDIA Vs. CHAJJU RAM [DEAD BY LRS. AND OTHERS]
9. Mr.G.Masilamani, learned senior counsel appearing for the petitioners would mainly raise the preliminary objection regarding the lack of jurisdiction. It is vehemently contended that this court has no jurisdiction to entertain the writ petition as the cause of action has not at all arisen within the jurisdiction of this court. It is contended that merely because the petitioner downloaded the tender form and remitted the fees through internet, he cannot claim that the cause of action had arose within the jurisdiction of this court. It is pointed by the learned senior counsel for the respondents that the tender was floated from Mumbai and it can be downloaded by anyone from any part of the world and as such, the contention of the petitioner to the effect that the petitioner had downloaded the tender through web-site at Chennai on payment of Rs.45,000/- through on-line payment at Chennai and as such, the cause of action had arose within the jurisdiction of this court, is untenable. It is further contended that as per clause 26 of the Tender Document, the exclusive jurisdiction of the Indian Courts at Mumbai was agreed by the parties and as such, the petitioner now cannot contend that the cause of action arose within the jurisdiction of this court.
10. The learned senior counsel appearing for the respondents would contend that the petitioner cannot claim that the matter would come within the jurisdiction of this court merely on the basis of the communications and correspondences addressed to the respondents by the petitioner from Chennai and the communications from the respondents were addressed to the petitioner's address at Chennai and received by the petitioner at Chennai. In support of his contentions, the learned senior counsel would rely upon the following decisions:-
1. 1994 [4] SCC 711 [OIL AND NATURAL GAS COMMISSION Vs. UTPAL KUMAR BASU AND OTHERS]; and
2. 2007 [11] SCC 335 [ALCHEMIST LIMITED AND ANOTHER Vs. STATE BANK OF SIKKIM AND OTHERS]
11. In respect of the merits of the case, it is contended by the learned senior counsel appearing for the respondents that the petitioner has been served with the show cause notice dated 14.10.2009 and as such, the petitioner is well aware about the reasons for passing the impugned order and therefore, it cannot be contended that the impugned order was passed in violation of the principles of natural justice. It is also pointed out by the learned senior counsel that the reply given by the petitioner dated 25.03.2010 to the show cause notice reveals that the petitioner is well aware about the contents of the enquiry report based on which ONGC has imposed the ban on the petitioner to participate in the future tender for a period of two years. Finally it is submitted that as the petitioner lacked the reliability and credibility on the basis of the reasons stated in the show cause notice, the impugned ban order was rightly passed by the respondents.
12. I have given my anxious and careful consideration to the rival contentions put forward by either side and thoroughly scrutinised the materials available on record and perused the affidavit of the petitioner; common counter filed by the respondents; reply affidavits and the additional affidavit filed by the petitioner and the reply filed by the petitioner to the submissions made by the respondents and also perused the impugned ban order.
13. As the respondents raised the preliminary objection of lack of jurisdiction and the learned senior counsel appearing for both sides have argued at length on that aspect, it is desirable for this court to consider the said question before considering the submissions made on the merits of this case.
14. The petitioner claimed that the cause of action had arisen within the jurisdiction of this court on the following grounds:-
a. The tender was downloaded by the petitioner from a web-site at the petitioner's office at Chennai which comes well within the jurisdiction of this court and the tender fee of Rs.45,000/- was also paid at Chennai through on-line.
b. The show cause notice dated 14.10.2009 issued by the respondents was received by the petitioner at Chennai and the reply to the show cause notice was sent by the petitioner from Chennai and all the correspondences and communications addressed to the petitioner by the respondents were received by the petitioner at Chennai and the petitioner's letters and communications addressed to the respondents were sent from Chennai.
c. The issuance of show cause notice and the receipt of the same by the petitioner at Chennai would not amount to a mere exchange of correspondences but the show cause notice is the essential pre-requisite or sine-qua-non of placing a contractor on holiday [blacklisting] and as such, the show cause notice and the explanation given by the petitioner pursuant to the show cause notice forms the material, essential and integral part of the cause of action.
15. On the other hand, the respondents mainly contended that the above said grounds relied on by the petitioner are not sufficient to attract the jurisdiction of this court. The respondents placed reliance on the tender documents which are binding on the parties and the courts at Mumbai jurisdiction was agreed between them. The tender itself was floated from Mumbai by the respondent. The learned senior counsel appearing for the respondents heavily placed reliance on the decisions in ONGC's case reported in 1994 [4] SCC 711 [cited supra] and Alchemist's case reported in 2007 [11] SCC 335 [cited supra].
16. In ONGC's case reported in 1994 [4] SCC 711, the Hon'ble Apex court has held as here under:-
"......
7.In law, the expressions 'cause of action' means a bundle of facts which the parties are required to prove, if traversed, to entitle him to a judgment in his favour. It is not the relation whatsoever to the defence which may be set up by the defendant. In Chand Kour V. Partab Singh, ILR 1889 [16] Cal.98, it was observed:-
"In determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an inquiry as to the correctness or otherwise the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition."
[emphasis supplied]
17. As far as the case on hand is concerned, in the affidavit filed by the petitioner, the petitioner raised a plea regarding the territorial jurisdiction at paragraph 41 which reads as here under:-
"...... Above all, the relief sought by the petitioner relating to acceptance and consideration for evaluation of the current tender dated 18.02.2011 is floated through online by the 1st respondent for procurement and submission, which was viewed and downloaded by the petitioner at the petitioner's office at Chennai within the jurisdiction of this Hon'ble Court. Therefore, most part of the cause of action have arisen within the territorial jurisdiction of this Hon'ble Court."
Thereafter, an additional affidavit was filed by the petitioner wherein it is pleaded that the respondents' office is also located at Chennai and all communications and correspondences from the respondents were addressed to the petitioner's address at Chennai and were received by the petitioner at Chennai. It is further pleaded in the additional affidavit that the tender floated on 18.02.2011 by the 1st respondent is an E-Bidding Process where the procurement of the tender documents and the submission of the documents were all made on-line by the 1st respondent and as such, no particular jurisdiction can be confined to such an E-Bidding Process and as such, it is stated that several parts as well as the substantial parts of the cause of action had very much occurred at Chennai and within the jurisdiction of this court.
18. Therefore, this court has to consider whether the above said grounds raised by the petitioner on the basis of the pleadings as stated above would attract the jurisdiction of this court in the light of the decision of the Hon'ble Apex Court cited supra, viz., ONGC's case reported in 1994 [4] SCC 711. The Hon'ble Apex court in the said decision has held as here under:-
".........
8.From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates, subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27.01.1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer form Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15.01.1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27.01.1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court."
[emphasis supplied]
19. The principle laid down by the Hon'ble Apex court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also as the fact remains that the petitioner mainly claimed the attraction of the jurisdiction of this court on the basis of the downloading the tender document through web-site from Chennai and making the payment of Rs.45,000/- through on-line payment from Chennai and coupled with the correspondences and communications including the show cause notice sent by the respondents and received by the petitioner and as well as the communications and the reply sent by the petitioner to the respondents from Chennai. It is pertinent to note that in the above decision cited supra rendered by the Hon'ble Apex court, reliance was placed on reading the advertisement published in the Times of India at Calcutta and the tender was made from Calcutta; but the said contention was not accepted by the Hon'ble Apex court holding that the above said factors would not constitute facts forming an integral part of the cause of action. Likewise in the instant case, the petitioner reliance on downloading of the tender documents from web-site at the petitioner's office at Chennai and further the allotment of password from the 1st respondent via E-Mail was received at Chennai and thereafter, the tender fee of Rs.45,000/- was paid through on-line from Chennai. It is needless to state that a person sitting in any part of the world can very well down load the tender document through the web-site and procure the tender document and submit the same by receiving the allotment of password and pay the tender fees through on-line and on that ground, he cannot claim the attraction of jurisdiction of a particular court. As far as the case on hand is concerned, the tender was floated from Mumbai and other process had taken place at Mumbai and ultimately, the respondents rejected the petitioner's claim from Mumbai. Apart from the above factors, it is pertinent to note that as per clause 26 of the Tender Document, exclusive jurisdiction of the Indian Courts at Mumbai was agreed by both the parties and as such, the same is binding on the petitioner.
20. The Hon'ble Apex court in the yet another decision relied on by the respondents in Alchemist's case reported in 2007 [11] SCC 335, has highlighted the grounds on which the respective parties claimed that a part of cause of action had arisen within the territorial jurisdiction of the respective High Courts, viz., the High Court of Punjab and Haryana and the Sikkim High Court. It is relevant to incorporate the said portion of the decision which reads as here under:-
"..........
8.The appellant Company contended that a part of cause of action had arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. The appellant Company, for such submission, relied on the following facts:-
[i]The appellant company has its registered and corporate office at Chandigarh;
[ii]the appellant company carries on business at Chandigarh;
[iii]the offer of the appellant company was accepted on 20.02.2004 and the acceptance was communicated to it at Chandigarh;
[iv]part-performance of the contract took place at Chandigarh inasmuch as Rs.4.50 crores had been deposited by the appellant company in a fixed deposit at Chandigarh as per the request of the first respondent;
[v]The Chairman and Managing Director of the 1st respondent visited Chandigarh to ascertain the bona fides of the appellant company;
[vi]negotiations were held between the parties in the third week of March, 2005 at Chandigarh;
[vii]letter of revocation dated 23.02.2006 was received by the appellant company at Chandigarh. Consequences of the revocation ensued at Chandigarh by which the appellant company is aggrieved.
It was, therefore, submitted that at least a part of cause fo action had certainly arisen within the territorial jurisdiction of the High Court of Punjab and Haryana and hence it had jurisdiction to entertain the petition. It was, therefore, submitted that the impugned order passed by the High court deserves to be set aside by directing the court to decide the writ petition on merits.
9.The respondents, on the other hand, submitted that neither of the above facts nor circumstances can be said to be a part of cause of action investing jurisdiction in the High Court of Punjab and Haryana. According to the respondents, all substantial, material and integral facts constituting a cause of action were within the territory of the State of Sikkim and, hence, the High Court of Punjab and Haryana was fully justified in holding that it had no territorial jurisdiction to entertain, deal with and decide the lis between the parties.
10.The respondents, in this connection, relied upon the following facts:-
[i]registered and corporate office of the 1st respondent Bank is at Gangtok, i.e., Sikkim;
[ii]secretariat of the 2nd respondent State is situated at Gangtok, i.e., Sikkim;
[iii]offers were called for from various parties at Gangtok;
[iv]all offers were scrutinised and a decision to accept offer of the appellant company was taken by the 1st respondent Bank at Gangtok;
[v]the State Government's decision not to approve the proposal of the appellant Bank was taken at Gangtok;
[vi]the meeting of the Board of Directors of the 1st respondent Bank was convened at Gangtok and a resolution was passed to withdraw the letter dated 20.02.2004 at Gangtok;
[vii]a communication was dispatched by the 1st respondent Bank to the appellant Company on 23.02.2004 from Gangtok."
21. Thereafter, the Hon'ble Apex Court, in the same decision, referred the earlier decisions rendered including the ONGC's case and further held as here under:-
"..............
36.In National Textile Corporation Limited V.s Haribox Swalram reported in 2004 [9] SCC 786 referring to earlier cases, this court stated that:-
"12.1..... the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained."
and thereafter, ultimately held as here under:-
"37.From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a "part of cause of action" nothing less than that."
The principle laid down by the Hon'ble Apex Court in the decision cited supra, makes it crystal clear that for the purpose of deciding the issue of constituting the cause of action, one has to consider the pleadings of the respective parties and the facts pleaded should constitute a material, essential or integral part of the cause of action and even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have the territorial jurisdiction to entertain the petition.
22. The Hon'ble Apex Court in the decision cited supra, also further held that the facts pleaded by the appellant/company therein, as narrated in paragraph 8 of the decision, cannot be said to be an essential, material or integral fact so as to constitute a part of "cause of action" within the meaning of Article 226 clause [2] of the Constitution. The petitioner herein placed reliance on the similar facts as relied on by the appellant therein. At the risk of repetition, it is to be stated that as far as the case on hand is concerned, the petitioner has pointed out earlier, placed reliance on the fact that the tender was downloaded at the petitioner's office at Chennai and the tender fee of Rs.45,000/- was paid through on-line payment and the show cause notice was issued by the respondent to the petitioner at the petitioner's office at Chennai and all the correspondences and communications between the petitioner and the respondents were made to and from Chennai. If the said pleadings and facts is tested with the touchstone of the principle laid down by the Hon'ble Apex Court in the decision cited supra, then this court has no difficulty to come to the conclusion that the said facts which have been pleaded and relied on by the petitioner herein, cannot be said to be essential, material or integral factor, so as to constitute a part of the cause of action.
23. The learned senior counsel for the petitioner has placed reliance on the decision of a Division Bench of this court in A.MADURAI VEERAN's case reported in 2006 [1] CTC 732 [cited supra]. The Division Bench also placed reliance on the decision rendered by the Hon'ble Apex Court in ONGC's case reported in 1994 [4] SCC 711. Though in the said decision, it is observed that in the matter relating to the jurisdiction point, liberal view is to be taken, it is also clearly stated by the Division Bench that the court should be cautious enough not to transgress into the territorial jurisdiction of other High Court. In the said decision, the Division Bench has also taken a view which reads as here under:-
"..............
13.In our view, the observations made by the Orissa High Court are also equally applicable to the present case, where most of the correspondences relating to rejection of disability pension and subsequent rejection of representation had been made within the territorial jurisdiction of the Madras High Court."
The Division Bench has taken such a view in the decision cited supra on the basis of the facts and pleadings of the said case and as such, it cannot be contended that merely because of certain correspondences and communications were sent by the petitioner from Chennai and the correspondences were received by the petitioner from the respondents at Chennai, the same would give rise to the cause of action attracting the jurisdiction of this court.
24. The learned senior counsel appearing for the petitioner would also rely on the yet another unreported order of a learned Single Judge of this court dated 21.06.2011 made in WP.Nos.29145, 30408 and 35168/2007. A perusal of the said order reveals that a preliminary objection was raised regarding the territorial jurisdiction regarding the maintainability of the writ petition on the ground of lack of jurisdiction. The perusal of the said decision discloses that the learned Judge placed reliance on the fact that the petitioner therein was residing within the jurisdiction of this court and that the orders were also received by him at Chennai and as such, held that the writ petition is maintainable as the jurisdiction of this court is attracted. But, the fact remains that the decision of the Hon'ble Apex Court in Alchemist's case reported in 2007 [11] SCC 335 [cited supra] was not brought to the notice of the learned Single Judge while passing the above said unreported order.
25. In view of the aforesaid reasons, this court has to come to the irresistible conclusion that the writ petition is not maintainable for want of jurisdiction and the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
26. It is made clear that the points raised on merits by both the learned senior counsel appearing for the petitioner and the respondents, are left open to be agitated before the appropriate competent court of jurisdiction.
25.08.2011 INDEX : YES INTERNET : YES ap To
1.Chairman and Managing Director Oil and Natural Gas Corporation Limited 3rd Floor, 11-High, ONGC Office Complex, Sion-Bandra Link Road, Mumbai-400 017.
Also having its Regional Office at Thalamuthu Natarajar Building, No.1, Gandhi-Irwin Road, Egmore, Chennai 600 008.
2.The Executive Director Chief Drilling Service Oil and Natural Gas Corporation Limited 11-High, ONGC Office Complex, Sion-Bandra Link Road, Mumbai-400 017.
K.N.BASHA, J.
ap Order in WP.No.13950/2011 25.08.2011