Delhi District Court
Civil Judge : Delhi vs Ministry Of Health & Family Welfare on 29 September, 2007
1 IN THE COURT OF SMT.RACHNA T. LAKHANPAL, CIVIL JUDGE : DELHI SUIT NO.1488/06 M/s Smart Chip Ltd. Plaintiff Versus Ministry of Health & Family Welfare Defendant ORDER:
By this order, I shall decide an application U/o 39 Rule 1 & 2 CPC.
2. The brief facts of the case as submitted by the plaintiff are that the plaintiff company provides telecom and non telecom based ``smartcards'' which have versatile applications. Defendant issued a notice inviting tenders dated 13.1.2006 requesting for bids for the installation, operation, comprehensive maintenance and management of Biometric time attendance system for recording the attendance of the staff of the defendant and DGHS. Plaintiff submitted its technical bid on February 13, 2 2006 alongwith covering letter wherein plaintiff company gave information of its similar products that it had executed especially the Biometric time attendance and control system. Plaintiff had also furnished an earnest money deposit of Rs.50,000/ in the form of bank guarantee vide BG No. N 54/2006 dated 2.2.2006. Further the case of the plaintiff is that defendant accepted the plaintiff's technical bid and held that plaintiff is technically eligible and invited the plaintiff for discussion on 31.3.2006. Plaintiff has further submitted that at the meeting on 31.3.2006, plaintiff came to know for the first time that defendant wanted Biometric time attendance system to be implemented on non smart card based platform whereas the comprehensive technical bid submitted by the plaintiff clearly mentioned that its bid is solely of a smart card based platform. Accordingly, the plaintiff wrote a letter dated 4.4.2006 showing its inability to do so and withdrew its bid accordingly thereafter plaintiff has submitted that defendant issued a letter dated 27.6.06 by Sh. N.S. Bedi, Under Secretary of defendant wherein it was stated that since the plaintiff vide its letter dated 4.4.06 has withdrawn its bid, therefore earnest money deposit of Rs.50,000/ stood forfeited. Plaintiff then wrote a letter dated July, 3, 2006 stating that it was not a withdrawal of bid as contemplated under clause 9 second para at page 6 of Notice Inviting Tender but in fact was a 3 unsuccessful bid as contemplated under clause '9' first para of notice inviting the tenders. Defendant did not return bank guarantee hence this suit.
3. Defendant in its written statement has submitted that its notice inviting tenders dated 13.1.06 had clearly stated that it wanted tender for installation, operation, comprehensive, maintenance and management of Biometric time attendance system for recording the attendance of staff of defendant and DGHS by using the finger prints of its employees. Defendant has further submitted that plaintiff was given an opportunity to give demonstration of its products based on its proposal and it was only during the presentation plaintiff clarified that they are providing only smart card based biometric time attendance system and simultaneously the plaintiff withdrew as a bidder on 4.4.2006 i.e. during the period of bid validity, which amounted to violation of provision contained in para 9 of Section 3 of notice inviting tenders therefore bank guarantee of Rs.50,000/ was forfeited.
4. In the present application plaintiff has sought relief that by granting adinterim exparte injunction against the defendant restraining them from invoking/encashing/ 4 appropriating the earnest money deposit furnished by way of bank guarantee dated 2.2.2006 for Rs.50,000/. Plaintiff has further sought adinterim exparte injunction seeking declaration that the letter dated June 27, 2006 issued by the defendant be declared as null and void.
5. I have heard the counsels and perused the records. Now, in order to get the interim relief of injunction plaintiff is required to establish the following:
(1)That the plaintiffs have a prima facie case in their favour (2)That the balance of convenience is in favour of the plaintiff (3)That the plaintiffs will suffer irreparable loss if relief of injunction not granted.
6. A bare perusal of the Notice Inviting Tender dated 13.1.2006 issued by defendant has nowhere clarified that it wanted computerised biometric time attendance system using finger prints on non smart card basis. Subject of notice inviting tenders at page 2 issued by the defendant is reproduced as below:
'Subject: Notice inviting tenders for the installation, operation comprehensive maintenance and management of biometric time attendance system for recording attendance of the staff of the Ministry of Health and Family Welfare and Directorate General 5 of Health Services at Nirman Bhavan, New Delhi.'
7. Para 1 of page 3 of Notice Inviting Tender has been reproduced as below:
``It is expected that the computerized biometric time attendance system will record the attendance time of the employees using their finger prints. Finger print readers will have to be installed at Gate No.5, 6 and 7 of the Nirman Bhavan. The daily attendance of all the employees will have to be displayed on the internet of the Health Ministry.''
8. From a bar reading of above said relevant paras of Notice Inviting Tender nowhere it can be inferred that defendant wanted biometric time attendance system on non smart card basis. Plaintiff had submitted their technical bid on smart card based biometric time attendance system using finger prints. Defendant in its written statement has submitted that plaintiff has not clarified before the presentation of 31.3.06 that it provides smart card based biometric time attendance system, but this contention of the defendant has no merit as the covering letter and technical bid submitted by the plaintiff on 13.2.2006 has very clearly provided that plaintiff provides smart card based biometric time attendance system. Relevant para of Executive Summary 6 submitted by the plaintiff is being reproduced as under:
``Personalised smart cards would be given to all the employees/users. Smart Card Biometric Time Attendance Terminals would be installed near the entry gates. To mark the attendance, the employee has put his finger/thumb on the fingerprint sensor for the system to sense and match the print. Once the fingerprint is accepted by the system he needs to flash his card before the Terminal and his attendance along with time stamp would be recorded onto the terminal. All entries/exits are logged with a time stamp to a central host, which can work in an online/offline mode.''
9. From a bare perusal of this para it can be inferred, plaintiff submitted its bid for smart card based biometric time attendance system using finger prints as well and defendant even thereafter called the plaintiff for presentation on 31.3.2006 which shows that defendant was interested to go ahead with the plaintiff company. Now the defendant cannot take this stand that it was not aware that the plaintiff is providing smart card based biometric time attendance system whereas defendant wanted only finger prints based technology. In the aforesaid circumstances, the plaintiff had to withdraw its bid and by no stretch of imagination it can be said that it was withdrawal of the bid as per 7 second para of para 9 of Notice Inviting Tender. Moreover, in the aforesaid circumstances it can be interpreted that the plaintiff was not the successful tenderer. Plaintiff had to withdraw its bid only in the circumstances when plaintiff came to know about the defendants specification on 31.3.2006 therefore to avoid unnecessary wastage of time and money (interest accruing on the bank guarantee) plaintiff withdrew its bid and for all this unnecessary exercise if anyone is to blame, then that will be defendant, who did not give proper specifications in their Notice Inviting Tender. Moreover, for the sake of arguments if it is taken that had the plaintiff not withdrawn from its bid and continued with the defendant even after the presentation of 31.3.2006 the fate of it could have been that plaintiff wouldn't have got the tender and in that case he would have been termed as unsuccessful tenderer. Plaintiff could foresee this and therefore withdrew its bid which cannot be called withdrawal as per para second of para 9 where it has been provided that if a tenderer withdraws its tender during the period of validity amount secured as earnest money may be forfeited. Moreover, Notice Inviting Tender of defendant itself provides that bid security 'may' be forfeited and the defendant should have exercise its discretion in favour of plaintiff as defendant itself had not specified in its Notice Inviting Tender that it wanted computerized biometric 8 time attendance system using finger prints on non smart cards basis. The whole confusion was caused because of the defendants and not by the plaintiff, therefore, I am of the view that plaintiff has established a prima facie case in its favour and balance of convenience also lies in favour of the plaintiff. Moreover, no injustice would be caused if the defendant is restrained from encashing or appropriating earnest money deposit, hence, defendant is restrained from invoking/encashing/realizing/ appropriating the earnest money deposit furnished by way of bank guarantee dated 2.2.2006 for Rs.50,000/ bearing No.54/06 drawn on M/s Canara Bank in favour of the defendant. The second relief in this present application cannot be granted at this stage as declaration of letter as null and void will amount to final disposal of the suit. Application stands allowed partially. Nothing contained herein shall tantamount to have any reflection on the merit of the case.
(RACHNA T. LAKHANPAL) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 29.09.2007.
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