Bombay High Court
Alankit Assignments Limited vs Union Of India on 10 April, 2024
2024:BHC-OS:5976-DB
Digitally signed
by MULEY
SHUBHAM
MULEY PRAVINRAO
SHUBHAM Date:
PRAVINRAO 2024.04.10
16:35:18
+0530
1 WPL-27290-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 27290 OF 2023
Alankit Assignments Limited
A Company having the registered
office at 205-208 Anarkali Complex
Jhandewalan Extension, New Delhi
110 055 ... Petitioner
V/s.
1. Union of India
through Department of Financial Services
Ministry of Finance, 3rd Floor, Jeevan Deep
Building, Sansad Marg, New Delhi- 110001
2. State Bank of India
Body corporate constituted under the State,
Bank of India Act, 1965 having its corporate,
office at State Bank Bhavan Nariman Point
Mumbai 400 021.
1. KFin Technologies Limited,
Having the registered office at Selenium,
Building, Tower-B, Plot No 31 & 32, Financial
District, Nanakramguda, Serilingampally,
Hyderabad, Rangareddi, Telangana India -
500 032 and corporate office 6/8 Ground
Floor, Crossely House, Near BSE (Bombay
Stock Exchange)Next Union Bank,
Fort Mumbai 400 001. ... Respondents
-------------------------
Mr. Gauraj Shah i/by Mr. Abhineet Nitin Pange for Petitioner.
Mr. Ashutosh Mishra for Respondent No.1.
Ms. Rathina Maravarman (through V.C.) for Respondent No.2.
Shubham 1/27
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2 WPL-27290-2023.doc
Mr. Nikhil Sakhardande, Senior Advocate a/w Ms. Shubhra Swami
and Mr. Shantam Mandhyan i/by Krishnamurthy and Co. for
Respondent No.3.
-------------------------
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 22nd MARCH, 2024
PRONOUNCED ON : 10th APRIL, 2024
JUDGMENT:(PER ARIF S. DOCTOR, J.)
1. The present Writ Petition, inter alia seeks (a) withdrawal of a Request For Proposal ("RFP") dated 14th June, 2023 floated by Respondent No.2 (i.e. State Bank of India) for selection of a Registrar and Transfer Agent ( "RTA") and (b) as also for quashing and setting aside the decision of Respondent No.2 dated 21st September, 2023 ("the impugned decision") by which Respondent No.2 has selected Respondent No.3 ("KFin Technologies Limited") (wrongly mentioned as "Respondent No.1"
in the cause title) as its RTA with effect from 1 st October, 2023.
2. Before adverting to the rival contentions, it is useful to set out the following facts: -
Shubham 2/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
3 WPL-27290-2023.doc i. Respondent No.2 had vide an agreement, dated 19 th June, 2018 appointed the Petitioner as its RTA for a period of five years, i.e., upto 30 th June, 2023. It is however not in dispute that the tenure of the said agreement was subsequently extended by Respondent No.2 upto 30th September, 2023.
ii. On 14th June, 2023, Respondent No.2 issued the captioned RFP for selection of an RTA for a period of five years commencing from 1st October, 2023 i.e. after the tenure of the Petitioner under the Agreement dated 19 th June, 2018 had come to an end.
iii. The Petitioner thereafter addressed the following correspondence/communications viz.,
a) An email dated 26th June, 2023 to Respondent No.2 seeking certain clarifications regarding two conditions of the RFP, pertaining to (i) the bank guarantee to be submitted by the bidders and (ii) the insurance cover to be provided by the bidders exclusively for transactions of Respondent No.2. Shubham 3/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
4 WPL-27290-2023.doc
b) An email dated 27th June, 2023 to the Director General, Central Vigilance Commission and Comptroller and Auditor General of India ( "CAG") alleging that the RFP was designed to benefit to only one party, i.e., Respondent No.3.
c) An online complaint dated 28th June, 2023 on the public grievance portal of Hon'ble Prime Minister's Office alleging that the RFP was tailor made to select Respondent No.3 as RTA of Respondent No.2. iv. Respondent No.2, vide an email dated 30 th June, 2023, answered the queries raised in the Petitioner's email dated 26th June, 2023.
v. Thereafter, Respondent No.2 vide an email dated 13th July, 2023 extended the date for submission of the presentation on 18th July, 2023 (instead of 14th July, 2023) and the financial bid to 4.00 p.m. on 21st July, 2023 (instead of 17th July, 2023).
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5 WPL-27290-2023.doc vi. On 21st September, 2023, Respondent No.2 by the impugned decision informed the Petitioner that Respondent No.3 had been appointed as the new RTA with effect from 1st October, 2023 and called upon the Petitioner to give its No Objection Certificate to the National Securities Depository Limited ("NSDL") and Central Depository Services (India) Limited (" CDSL") to facilitate the transition process of the work being done by the Petitioner, which was to be handed over and carried out by Respondent No.3.
vii. The Petitioner however instead of complying with the aforesaid, vide its email dated 22nd September, 2023, addressed to Respondent No.2, raised various grievances, inter alia stating that the process followed in RFP was not transparent and Respondent No.2 did not follow the conditions mentioned in the Schedule of Events of RFP.
viii. Respondent No.2 vide a letter dated 25th September, 2023 informed the Petitioner that (a) as per the terms of Agreement dated 19th June, 2018, the Petitioner was Shubham 5/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 6 WPL-27290-2023.doc obligated to hand over all the records/data and related documents; (b) the RFP process was conducted in transparent and fair manner and accordance with conditions prescribed therein; and (c) once again called upon the Petitioner to issue the No Objection Certificates as was earlier requested for by Respondent No.2. ix. On 26th September 2023, Respondent No.2 sent a letter to the Petitioner as a reminder regarding initiating transition of RTA activities and issuance of No Objection Certificate.
x. The Petitioner thereafter on 3rd October, 2023 filed/lodged the present Writ Petition seeking the following reliefs;
"a) That this Hon'ble Court be pleased to issue a Writ of Mandamus against the Respondents or any other Writ in the nature of the Mandamus under Article 226 of the Constitution of India or any other appropriate Writ, order or direction directing the Respondent Nos. 2 withdraw the Request for Proposal (RFP) for selection of RTA ref/ SBI/S&B/RTA/2023-24/01 floated by the Respondent No.2 and issue a new Tender be floated.
b) That this Hon'ble Court be pleased to issue a Writ of Certiorari against the Respondents or any other Writ in Shubham 6/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
7 WPL-27290-2023.doc the nature of the Certiorari of the Constitution of India or any other appropriate Writ, order or direction quashing and setting aside the Impugned decision dated September 21, 2023 rendered by the Respondent No. 2 accepting the bid of Respondent No. 3 and the same be declared as illegal, arbitrary and completely devoid of reasons and be quashed and set-aside.
c) That this Hon'ble Court be pleased to stay the execution of Request for Proposal (RFP) for selection of RTA ref/ SBI/S&B/RTA/2023-24/01 dated June 14, 2023 by the Respondent No.2 for appointment of RTA and the Respondent No. 2 be directed not to take any further steps in respect of the Impugned decision, execution of the contract in pursuance of Request for Proposal (RFP) for selection of RTA ref/SBI/S&B/RTA/2023-24/01 dated June 14, 2023."
Submissions of Mr. Gauraj Shah on behalf of the Petitioner
3. Mr. Shah, Learned Counsel appearing on behalf of the Petitioner at the outset submitted that the entire tender process stood vitiated since Respondent No.2 had itself failed to adhere to the terms of the RFP. In support of his contention he invited our attention to the following two clauses of the RFP which he submitted Respondent No.2 had failed to adhered to, namely viz., 8 Date and Time of 04.30 PM on 10.07.2023.
opening of Technical Bids Authorized representatives of Bidders may be allowed to be present during opening of the Technical Bids received from e-Procurement Agency. However, Bidder's representatives so present may only view the number of bids received and not the details of bids/bidders. Shubham 7/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
8 WPL-27290-2023.doc 10 Opening of Opening of Online Price/Commercial Bid Date Price/Commercial Bids & Time: 17.07.2023 at 4.00 PM Commercial/ Price bid of technically qualified bidders only be considered for finalizing successful bidder.
He pointed out that even though clause 8 of the RFP provided that the authorized representatives of the bidders were to remain present during the opening of the technical bids, the technical bids were infact opened in the absence of the Petitioner's authorized representative. He additionally submitted that no details of the technical bids were uploaded on the said e-tender portal and that the Petitioner had in fact vide its e-mail dated 12 th July, 2023 addressed to Respondent No.2 made inquiries about the status of the technical bids, but had not received any response from Respondent No.2. He submitted that the Petitioner had thus failed to adhere to clause 8 of the tender conditions.
4. Insofar as clause 10 of the RFP was concerned, Mr. Shah submitted that even though the financial bids were to be opened on 21st July, 2023, the Petitioner had heard nothing from Respondent No.2 until the impugned decision was communicated, which was admittedly after a period of two months from the date on which the financial bid was to be opened. He pointed out that Respondent No.2 had neither sent any communication to the Shubham 8/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 9 WPL-27290-2023.doc Petitioner nor had any information/details of the financial bids received by Respondent No.2 been uploaded on the website of Respondent No.2. Mr. Shah submitted that the reason for this was because Respondent No.2 wanted to ensure that the financial bid submitted by Respondent No.3 was lower than the Petitioner's financial bid and it was only to facilitate this that the impugned decision was communicated after a period of two months from the date on which the financial bids were to be opened. In support of his contention, he pointed out from minutes of the meeting that Respondent No.3, who was declared as L2 on 10th July, 2023 and 18th July, 2023 was suddenly on 21st July, 2023 declared as L1.
5. Mr. Shah then submitted that another factor which made clear that the decision of Respondent No.2 to award the tender to Respondent No.3 was premeditated, was the fact that knowledge of the appointment of Respondent No.3, as the new RTA of Respondent No.2 with effect from 1 st October, 2023 was in the public domain even prior to issuance of the impugned decision. He submitted that a news item appearing on a news channel on 21st September, 2023 carried information of the Shubham 9/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 10 WPL-27290-2023.doc appointment of Respondent No.3 even before the impugned decision was received by the Petitioner.
6. Mr. Shah then submitted that the terms of the said tender were also tailor made to suit Respondent No.3. However, nothing was shown to us to establish the basis of this submission. Mr. Shah submitted that given the conduct of Respondent No.2, the entire the decision-making process stood vitiated, and that Respondent No.2 had clearly acted in a premeditated manner only to favour Respondent No.3. He thus submitted that the conduct of Respondent No.2 was completely arbitrary and capricious and had resulted in depriving the Petitioner of a level playing field. It was thus that he submitted that the entire process under the RFP was required to be set aside.
7. Mr. Shah placed reliance upon a judgment of the Delhi High Court in the case of CJDARCL Logistics Ltd. Vs. Rites Limited & Ors.1 to point out that it was incumbent upon a tendering authority to enforce the terms and conditions of the tender without any discrimination and/or favoritism as also that the 1 Unreported judgment dated 1st June, 2022 passed in Writ Petition (C )No.10369 of 2021 Shubham 10/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 11 WPL-27290-2023.doc tendering authority was required to comply with its own terms and conditions. He pointed out that since Respondent No.2 had, in the present case failed and neglected to do so, the said judgment would squarely apply.
8. He then placed reliance upon a judgment of the Calcutta High Court in the case of Texmaco Rail and Engineering Limited & Anr. Vs. Union of India2 to submit that the process of public tender must be transparent and the decision of rejection of a bid could be challenged by way of a Writ Petition if such action was patently arbitrary in nature. He submitted that since Respondent No.2 had in the present case, failed to act in a transparent manner by not disclosing the requisite details and/or information of the bids received to the Petitioner, Respondent No.2 had failed to act in a transparent manner and thus the said judgment would squarely apply.
9. Basis the above, he submitted that the present Petition ought to be allowed and the reliefs prayed for be granted.
2 Unreported judgment dated 7th July, 2023 passed in WPA No.15369 of 2023 Shubham 11/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 12 WPL-27290-2023.doc Submissions of Ms. Rathina Maravarman appearing on behalf of Respondent No.2 (State Bank of India)
10. Ms. Maravarman, Learned Counsel appearing on behalf of Respondent No.2 submitted that the entire case of the Petitioner was predicated purely on conjecture and surmise. She submitted that the Petitioner's contention that Respondent No.2 had acted in a manner to favour Respondent No.3 was devoid of merit and was totally baseless. In support of her contention, she first invited our attention to the RFP and pointed that as per clause 10(e) and Appendix-F thereof, the bidders were required to undertake a self-evaluation of the technical criteria which was then to be validated by Respondent No.2. She pointed out that, when the technical bids were opened on 10 th July, 2023 Respondent No.2 had in fact validated the Petitioner's self- evaluation. Hence the question of Respondent No.2 acting in a premeditated manner to favour Respondent No.3 was ex facie untenable.
11. Ms. Maravarman then pointed out that the Petitioner's contention that Respondent No.2 had not adhered to the terms of clause 8 of the RFP was also entirely untenable. She pointed out Shubham 12/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 13 WPL-27290-2023.doc that the entire bidding process was outsourced to 'e-Procurement Technologies Ltd.' and the technical bids were opened online and thus the question of the representative of any of the bidders being present did not arise. She then, submitted that the Petitioner's contention that Respondent No.2 had communicated the impugned decision after two months after opening of the financial bids, only so to enable Respondent No.3 to submit a financial bid lower than the Petitioner was also equally baseless. She pointed out that Respondent No.3 had submitted both its technical bid as also financial bid on 10 th July, 2023 and the appointment committee of Respondent No.2 had assessed the same along with all other bids i.e. on 21 st July, 2023. She thus submitted that the Petitioner's contention that Respondent No.2 had allowed Respondent No.3 to revise and/or submit a financial bid lower than that of the Petitioner was totally without any merit and thus in the realm of the Petitioner's imagination. She then pointed out that the entire tender process was an online process of which Respondent No.2 had no control. She pointed out that the appointment committee of Respondent No.2 comprised of 8 high ranking officers of Respondent No.2 ranging from the Assistant General Manager upto the General Manager. Shubham 13/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
14 WPL-27290-2023.doc
12. She then invited our attention to the minutes of the meeting of the Appointment Committee of Respondent No.2 dated 21st July, 2023 and pointed out that the Appointment Committee had after a detailed and composite evaluation of the technical bids, financial bids and presentations submitted by all the bidders given the following marks to each of the bidders viz., Sr. Bidder Name Technical Presenta Financia Total Ranking No. Criteria tion l Criteria marks as per Marks Marks Marks obtaine Technica obtained obtained obtained d l Score
1. Alankit 31 12.00 12.63 55.63 L4 Assignments Limited
2. Bigshare 38 13.60 8.35 59.95 L3 Services Pvt.
Ltd.
3. KFin 56 16.60 20.00 92.60 L1 Technologies Limited
4. Link Intime 57 19.60 5.49 82.09 L2 India Pvt.
Ltd.
From the above, she pointed out that Respondent No.3 was infact declared L1 and the Petitioner was declared as L4 on 21 st July, 2023 itself. She therefore submitted that the Petitioner's contention that Respondent No.2 had issued the impugned Shubham 14/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 15 WPL-27290-2023.doc decision after two months only to ensure that Respondent No.3 could submit a lower financial bid than that of the Petitioner was entirely devoid of merit.
13. Ms. Maravarman then pointed out that the Petitioner had infact suppressed an order dated 13 th April, 2023 passed by Securities and Exchange Board of India (SEBI) by which the Petitioner had been banned from taking up any new assignments for a period of 6 months on account of the various defaults committed by the Petitioner while acting as the RTA of Respondent No.2. She pointed out that in a challenge to the order of SEBI by the Petitioner, the Securities Appellate Tribunal (SAT) did not set aside these observations but had merely vide its order dated 18th May, 2023 lifted the ban of 6 months imposed by SEBI upon the Petitioner from taking up new assignments.
14. Ms. Maravarman submitted that the Petitioner's reliance upon the fact that the news of the appointment of Respondent No.3 was in the public domain even before the impugned communication was issued by Respondent No.2, was also entirely baseless. She pointed out that Respondent No.2 had on 16th September, 2023 vide its office note intimated Shubham 15/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 16 WPL-27290-2023.doc Respondent No.3 of its selection as the RTA with effect from 1 st October, 2023. She submitted that Respondent No.3 had only on 20th September, 2023 had given its consent to Respondent No.2 for being appointed as RTA and therefore Respondent No.2 had on that day instructed its web team to publish the news on its website as also as required by law, intimated both, the National Stock Exchange (NSE) as also to the Bombay Stock Exchange (BSE) of the appointment of Respondent No.3 as its new RTA. She submitted that it was thus that the information was in the public domain on 20th September, 2023 since Respondent No.2 was required by law to make the requisite disclosures and not on account of any premeditated decision of Respondent No.2 as alleged by the Petitioner.
15. Ms. Maravarman then pointed out that Respondent No.2 had on 21st September, 2023 instructed its web team to upload all the relevant details on its website since by the earlier instructions of 20th September, 2023 only the factum of selection had been uploaded without the details. She submitted that none of the bidders had been individually informed of the decision of Respondent No.2 to appoint Respondent No.3 as its new RTA. She pointed out that the grievances raised in the Petitioner's Shubham 16/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 17 WPL-27290-2023.doc email dated 22nd September, 2023 were also entirely baseless since it was open to any of the bidders to login to the e-tender portal and verify the status of their respective bids.
16. Ms. Maravarman then submitted that the Petitioner was only attempting to raise highly technical grounds to challenge the RFP and tender process which she submitted was beyond the scope of judicial review. In support of her contention, she placed reliance upon a judgment of the Hon'ble Supreme Court in the case of M/s Om Gurusai Construction Company Vs. M/s V.N. Reddy & Ors .3 to submit that it was not open to a Petitioner to assail the tender process on the basis of imaginary grievances or by making mountains out of mole hills on account of some technical/procedural violations etc. Submissions of Mr. Sakhardande on behalf of Respondent No. 3
17. Mr. Sakhardande, Learned Senior Counsel appearing on behalf of Respondent No.3 at the outset submitted that the Petitioner having participated in the tender process was precluded from now challenging the same. In support of his contention, he placed reliance upon a judgment of this Court in 3 2023 SCC OnLine SC 105 Shubham 17/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 18 WPL-27290-2023.doc the case of Alankit Assignments Limited Vs. Union of India 4, wherein, the very same Petitioner had sought to challenge the RFP floated by the Life Insurance Corporation (LIC) for appointment of an RTA and this Court had repelled the challenge on the ground that the Petitioner had participated in the tender process and was thus precluded from challenging the same.
18. Without prejudice to the aforesaid contention, Mr. Sakhardande then invited our attention to clause 8 of the RFP and pointed out that the Petitioner had plainly misconstrued the same. He pointed out that clause 8 clearly provided that authorized representatives of bidders 'may' be allowed to be present during the opening of technical bids and nowhere did the same provided that the authorized representative of the bidders had a right to be present at the opening of the technical bids. He then submitted that this contention of the Petitioner was really in the nature of a storm in a teacup, since even assuming it was mandatory to open the technical bids in the presence of the authorized representatives of the bidders, clause 8 clearly provided that such authorized representatives were permitted only to view the number of bids received and not the details of 4 Unreported judgment dated 9th November, 2023 passed in Writ Petition (L) No.30013 of 2023. Shubham 18/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::
19 WPL-27290-2023.doc bids/bidders. He submitted that this clause had never been challenged by the Petitioner thus, even assuming the Petitioner's authorized representative was present, the RFP did not permit such authorized representative to do anything other than view the total number of bids received.
19. Learned Senior Counsel took pains to point out that since the Petitioner did not have any vested right under the RFP, the question of there being any violation of any right of the Petitioner did not arise. He then invited our attention to clause 15 of the RFP and pointed out that the same infact expressly provided that the technical bids could be opened even in the absence of authorized representatives of the bidders. Basis this he submitted that the Petitioner's contention that Respondent No.2 had failed to adhere to the terms of the RFP was entirely without substance.
20. Mr. Sakhardande then submitted that the sole intention of the Petitioner was to frustrate the entire tender process and continue for as long as possible as the RTA of Respondent No.2 and nothing more. He pointed out that the Petitioner had infact succeeded in its endeavour since Respondent Shubham 19/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 20 WPL-27290-2023.doc No.3 could not commence its operations as RTA w.e.f. 1 st October, 2023. He pointed out that this had infact occasioned huge loss to Respondent No.3.
21. Basis the above, Mr. Sakhardande submitted that the Petition was liable be dismissed.
Submissions in Rejoinder by Mr. Shah
22. Mr. Shah submitted that neither the judgment in the case of M/s Om Gurusai Construction Company (supra) relied upon by Respondent No.2 nor the judgment of this Court in the case of Alankit Assignments Limited (supra) relied upon by Respondent No.2 would have any application to the facts of the present case. He reiterated that in the present case it was the Petitioner's specific contention that Respondent No.3 had not acted in accordance with the clauses of the RFP and had acted in a premeditate manner only to favour Respondent No.3, which was not the basis of the challenge in either of the aforesaid cases.
23. He then reiterated that Respondent No.2 had not produced for the perusal of this Court the details of the technical Shubham 20/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 21 WPL-27290-2023.doc bids or the financial bids as received by Respondent No.2 on 21 st July, 2023, but had only produced the minutes of the meeting. He submitted that therefore there was no clarity as to how Respondent No.3 who was L2 on 10 th July, 2023 and 18th July, 2023 became L1 on 21 st July, 2023. He submitted that there was no basis for the impugned decision and that the same appeared to have been taken solely on the basis of the email dated 21 st July, 2023. He thus submitted that the impugned decision was clouded in uncertainty and bereft of any transparency, and it was thus that the decision-making process stood vitiated. Reasons and Findings
24. We have heard Learned Counsel at length, considered the rival contentions advanced as also the judgments upon which reliance was placed, and after a careful consideration of the same, find that the present Writ Petition deserves to be dismissed, with costs, for the following reasons, viz. A. The entire basis of the Petitioner's challenge is that Respondent No.2 has acted in a premeditated manner only to favour Respondent No.3. One of the grounds taken by the Petitioner was that the terms of the RFP were tailor Shubham 21/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 22 WPL-27290-2023.doc made to suit only Respondent No.3. However, in dealing with this contention, we must note following things (i) the Court has limited scope in public tender matters of merely to examine whether the decision-making process is after complying with the procedure contemplated by the tender conditions and the same is not arbitrary, irrational, perverse or with mala fide intention (ii) that even though this contention was taken by the Petitioner, not a single submission was advanced on behalf of the Petitioner pointing out which terms of the RFP were tailor made to suit only Respondent No.3 and (iii) that the Petitioner has admittedly not challenged any of the terms of the RFP, but conversely, has proceeded to unconditionally participate in the tender process by submitting its technical and financial bids. We thus find that the Petitioner not having challenged and/or raised any grievance qua any specific terms of the RFP is now precluded for the first time after conclusion of the entire tender process from raising any challenge to the same.
B. Equally, we find the Petitioner's contention that Respondent No.3 had not adhered to the terms of the RFP Shubham 22/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 23 WPL-27290-2023.doc also to be plainly devoid of merit. A plain reading of clause 8 does not in any manner mandate that the technical bids were to be opened only in the presence of the authorized representatives of the bidders. Infact, clause 15 of the RFP expressly provided that the bids could be opened by Respondent No.2 in the absence of the authorized representatives of the bidders. Also, what is crucial to note is that though the revised date for the presentation and opening of financial bids was 18th July, 2023 and 21st July, 2023 respectively, the Petitioner did not at any time prior to the impugned decision i.e. 21st September, 2023 raise any grievance that the technical bid was opened in the absence of the Petitioner's authorized representative. The grievance of the Petitioner comes for the first time only on 22nd September, 2023, which is after the impugned communication was issued by Respondent No.2. Clearly therefore the challenge now foisted in the present Writ Petition is purely by way of chance and an afterthought. C. Additionally, we must note that the Petitioner's contention that Respondent No.2 had taken two months from the date the financial bid was opened to communicate the Shubham 23/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 24 WPL-27290-2023.doc impugned decisions only to allow Respondent No.3 to submit lower financial bid than the Petitioner is also entirely baseless. The record bears out that Respondent No.3 had infact submitted both its technical and financial bids on 10th July, 2023 itself and that all bids were assessed and evaluated by the assessment committee of Respondent No.2 on 21st July, 2023 itself when Respondent No.3 was declared L1 and the Petitioner was declared as L4. Also, it is not in dispute that the entire tender process was outsourced by Respondent No.2 and was carried out by an independent agency. The assessment of bids was done, as already noted above by a committee comprising of 8 high ranking officials of Respondent No.2 based on various criteria. It is not even the case of the Petitioner that there has been any error in assessment by the assessment committee. Infact, the record bears out that the assessment committee has accepted the Petitioner's self-evaluation. Thus, we find no merit in the contention of the Petitioner that Respondent No.2 has acted in a manner to favour Respondent No.3.
D. We must also note that the conduct of the Petitioner in the Shubham 24/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 25 WPL-27290-2023.doc present case is entirely lacking in bonafides. The Petitioner simply made bald and totally unsubstantiated allegations of favoritism etc. against Respondent No.2. While the Petitioner has alleged that the terms of the RFP were tailor made to suit Respondent No.3, the Petitioner has neither challenged any such term/s nor has Petitioner even pointed out which these terms were. The Petitioner has infact unreservedly participated in the said tender process. Similarly, while the Petitioner has alleged that Respondent No.2 has not followed the terms of the RFP, at no time prior to the impugned decision has the Petitioner made any such specific grievance in this regard nor has the Petitioner complained that the technical bids were opened in the absence of its authorized representative. It is only after receipt of the impugned decision that the Petitioner has raised these grievances. This conduct in our view clearly exposes the Petitioner's lack of bonafides and the fact that the Petitioner has filed the present Petition for ulterior motives. We thus find merit in the contention of the learned senior counsel appearing on behalf of Respondent No.3 that the Petitioner's challenge is totally misconceived Shubham 25/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 26 WPL-27290-2023.doc and an abuse of the process of law and only to prolong the tenure of the Petitioner in acting as RTA of Respondent No.2. It is thus that we are inclined to dismiss the Petition with costs.
25. Hence we pass the following order, viz.
ORDER i. Petition is dismissed with cost of Rs.50,000/- (Rupees Fifty Thousand only).
ii. Cost is payable to K.E.M. Hospital within a period of six weeks from the date this order is uploaded. The account details of K.E.M. Hospital are as follows;
Bank Account of : Poor Box Charity Fund, K.E.M.
Hospital Hospital, Mumbai
Bank Account No. : 99350100000877 (S.B.)
Bank : Bank of Baroda, Parel Branch
Address, Tel. No., : Bank of Baroda, Madina Manzil, 88, Fax No. and email Dr. Ambedkar Road, Mumbai - 400 of the concerned 012, Maharashtra, 022-24713820 Bank [email protected] MICR Code No. : 400012246 Shubham 26/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 ::: 27 WPL-27290-2023.doc IFSC No. : BARB0BBPARE (5th Letter is zero) PAN No. : AAAPK3087D Type of Account : Saving Account iii. Petitioner to file with the office of the Prothonotary and Senior Master proof of compliance of the above within eight weeks.
iv. In the event it is found that the Petitioner has not complied with the above, suitable orders shall be passed.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE) Shubham 27/27 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 11/04/2024 20:01:57 :::