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M/S Unissi (India) Pvt. Ltd. & Anr vs Central Medical Service Society & Anr on 9 December, 2020

Author: Hima Kohli

Bench: Hima Kohli, Subramonium Prasad

$~12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 10060/2020
        M/S UNISSI (INDIA) PVT. LTD. & ANR.              ....... Petitioners
                       Through: Mr. Satinder S Gulati, Advocate with
                       Ms. Kamaldeep Gulati, Advocate

                            versus

        CENTRAL MEDICAL SERVICE SOCIETY & ANR.
                                                    ..... Respondents
                      Through: Mr. Chetan Sharma, ASG with
                      Mr. Rajesh Gogna, CGSC and Mr. Akshay
                      Gadeok, Advocate
        CORAM:
        HON'BLE MS. JUSTICE HIMA KOHLI
        HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

                       ORDER

% 09.12.2020 HEARD THROUGH VIDEO CONFERENCING C.M. 32016/2020 (Exemption) Allowed, subject to all just exceptions.

W.P.(C) 10060/2020 & C.M. 32015/2020 (Stay)

1. By way of this instant writ petition, the petitioner seeks quashing of the order/technical evaluation summary dated 02.12.2020, prepared by the respondent No.1 in respect of Tender No.CMSS/PROC/2020-21/PSA PLANT/O18, holding it to be technically disqualified and for a further declaration that the consequential acts of the respondent No.1 in respect of the aforesaid tender including opening of the financial bid on 02.12.2020 and/or of award of the tender, as bad in law.

2. The undisputed facts of the case are that the respondent No.1 called for bids for S/I/T/C of PSA oxygen generation plant at public health facilities on a pan India basis. The bids were to be submitted by 04.11.2020. The petitioner submitted its bid. Clause 4(iv) of the Notice Inviting Tender (NIT) that stipulates that the tender should not be submitted by a tenderer who has been blacklisted/banned/debarred, reads as under:-

" 4 (iv) Tender should not be submitted by the firm/company for the Product(s) for which the firm/ Company has been blacklisted/ banned/ debarred by CMSS/ State Governments/ Central Government/MOH&FW or any of the procurement agencies/Autonomous Bodies under the organisations stated above or if the Firm/Company is debarred as a whole by these organisations or any of its procurement agencies/Autonomous Bodies."

3. On 25.11.2020, the petitioner was declared as successful in the technical bid evaluation. It has been averred by the petitioner in the writ petition that nine other companies had also submitted their bids. Four bids were rejected and the bids of five companies including that of the petitioner were accepted. The petitioner was informed that opening of the financial bids on 01.12.2020, had been withheld.

4. At this juncture, it is pertinent to mention that the petitioner had been awarded a contract for installing an Oxygen Generation Plant in Sawai Man Singh Medical College, Jaipur (in short, SMS Medical College, Jaipur). Vide order dated 28.11.2020, SMS Medical College, Jaipur blacklisted and debarred the petitioner from participating in tenders for SMS Medical College and attached hospitals for a period of six months and forfeiting the security amount deposited by it.

5. The records also indicate that on 30.11.2020, the respondent No.1 had written a letter to SMS Medical College, Jaipur enquiring as to whether the petitioner has been debarred or not. On 01.12.2020, the technical evaluation committee met once again and the petitioner was held to be technically non- compliant in view of its debarment by SMS Medical College, Jaipur vide order dated 28.11.2020.

6. The petitioner submitted a representation on 04.12.2020, stating that it has approached the court of the learned Metropolitan Magistrate, Jaipur and vide order dated 03.12.2020, the debarment order dated 28.11.2020 has been stayed. The petitioner has filed the instant petition for quashing of the order dated 02.12.2020 and other consequent orders of the respondent No.1 and prayed for opening of the financial bids and awarding of the tender.

7. Mr. Gulati, learned counsel for the petitioners contends that since the order dated 28.11.2020, issued by SMS Medical College, Jaipur has been stayed by a competent court on 03.12.2020, the petitioner's bid ought not to have been rejected and its financial bid ought to have been opened. He states that on the date the petitioner had submitted its bid, it had not incurred any disqualification and the said bid could not have been treated as technically non-compliant on the basis of an order that had been passed after the bid had been submitted by the petitioner.

8. Per contra, Mr. Chetan Sharma, learned ASG appearing for the respondents states that the order dated 03.12..2020, passed by the learned M.M., Jaipur is an ex parte order and the said order does not have the effect of setting aside the debarment order issued by SMS Medical College, Jaipur. He states that the petitioner cannot be considered on the basis of an ex parte stay for the reason that, in the event of the interim order getting vacated W. P. (C) 10060/2020 Page 3 of 6 and/or the petition getting dismissed ultimately, the petitioner would stand disqualified from participating in the tender and if the contract is awarded to it by opening the financial bid on the basis of the interim stay order, the entire process of awarding the contract to the petitioner, will get vitiated. He further states that the petitioner is aware that the financial bids have been opened and the tender awarded to three bidders and yet, it did not choose to implead the other bidders whose rights would be affected if the present petition is allowed. Therefore, the writ petition ought not to be entertained as it is bad for non joinder of necessary parties. He argues that in any event, the financial bids have been opened by now and the Letters of Acceptance have been issued to the three successful bidders on 05.12.2020 itself and for this reason too, the present petition, which has been filed on 07.12.2020, cannot be entertained.

9. We have heard Mr. Mr. Satinder S. Gulati, learned counsel for the petitioner and Mr. Chetan Sharma, learned ASG appearing for the respondents and have perused the records.

10. Admittedly, the financial bids were opened on 03.12.2020 and the Letter of Acceptance has been issued on 05.12.2020. The petitioner was aware of the status of the financial bids of the three rival bidders on the day the petition was filed. This fact is evident because the petitioner has itself chosen to give a comparative chart to demonstrate that its bid was the lowest (Annexure-P15) vis-a-vis that of the other bidders. Since the petitioner knew that the financial bids have been opened, it was incumbent on it to have impleaded the other three bidders whose bids have been opened, as co- respondents. It is well settled that a court ought not to hear and dispose of a writ petition, behind the back of persons/entities who will be vitally affected W. P. (C) 10060/2020 Page 4 of 6 by its judgment and if the petitioner does not join them, then the court ought to dismiss the petition for non joinder of necessary parties. The writ petition therefore deserves to be dismissed on this ground alone.

11. It is also well settled that in tender matters, a petitioner must approach the court for relief at the earliest opportunity and before third party rights are created. Creation of third party rights is a very important factor which weighs with the court while deciding as to whether it ought to exercise or refrain from exercising its jurisdiction under Article 226 of the Constitution of India (refer State of Madhya Pradesh & Ors v. Nandlal Jaiswal & Ors reported as 1986 4 SCC 566). The Letters of Acceptance have been issued in this case on 05.12.2020, i.e. before the present petition was filed. The petition having been filed after the Letters of Acceptance have been issued by the respondent No.1 to three bidders, the same ought not to be entertained on the ground of delay.

12. Even on merits, we are not inclined to entertain the petition. Admittedly, the petitioner has been debarred from participating in any tender issued by SMS Medical College, Jaipur and attached hospitals for a period of six months reckoned from 28.11.2020. In view of the said order, the petitioner would be ineligible to be considered in terms of Clause 4(iv) of the subject NIT.

13. It is also not in dispute that the order dated 03.12.2020 is an ex parte ad-interim order and the petitioner's bid cannot be considered on the basis of an ex parte order passed by the learned Metropolitan Magistrate, Jaipur. In case, the stay order gets vacated or if the petition is finally rejected by the concerned court, then the petitioner will become ineligible to bid. This will lead to vitiating the entire selection process undertaken by the respondent W. P. (C) 10060/2020 Page 5 of 6 No.1 and result in further litigation. In the event the petitioner succeeds in the proceedings initiated at Jaipur and the order of debarment gets set aside, it has civil remedies against SMS Medical College, Jaipur and the respondents herein.

14. The contention of learned counsel for the petitioner that since the order of debarment was passed after the petitioner had filed its bid and its bid ought not to be rejected, is also found to be devoid of merits. The order of debarment having been passed before the award of the tender, is sufficient to disqualify the petitioner from participating in the process in terms of the conditions imposed in the NIT.

15. In view of the above facts and circumstances, we do not see any merit in the present petition which is dismissed in limine.

HIMA KOHLI, J SUBRAMONIUM PRASAD, J DECEMBER 9, 2020 hsk/rkb W. P. (C) 10060/2020 Page 6 of 6