Document Fragment View

Matching Fragments

20. Counsel for the appellant, along with that for C1­India highlighted how the goalpost was being changed by Respondent No.1 throughout the litigation. Whereas before the High Court AMR­Dev Prabha sought adherence to terms of NIT and strict procedural compliance, but later they wished to settle the matter at a lower price claiming larger public interest. This was claimed to demonstrate how AMR­Dev Prabha’s interest was, in fact, personal and not public, and Page | 11 only to win the tender one way or the other and not to maintain the sanctity of the auction process. The lack of on­the­spot protest, neither during the auction process, nor at the time of availing refund of the Earnest Money Deposit; and the substantial delay in filing the writ petition (after more than 3 months of close of the auction process and 2 months from issue of the LOA) was nothing but an afterthought aimed at making a commercial opportunity out of litigation. Hence, the present proceedings were claimed to be an abuse of the process of law by AMR­Dev Prabha and only a chance for arm twisting BCCL to award to it the tender, no better than a contractual enforcement of private rights.

Page | 19 the interest of Respondent No. 1 was purely private and monetary in nature.

37. First, AMR­Dev Prabha’s initial prayer sought to nullify the award of contract, which if granted, would have increased the sums payable by the State instrumentality from Rs 2043 crores to Rs 2345 crores. Second, the conduct of Respondent No. 1 over the course of the present proceedings, as highlighted by the appellants, further bolsters the lack of public interest. Whereas initially the first respondent was seeking quashing of the LOA issued to Respondent No. 6 owing to arbitrariness on part of BCCL and on the ground that sanctity of the auction process had been violated; later, before the Division Bench, Respondent No. 1 sought to make a new offer of Rs 1950 Crores. This shows how AMR­Dev Prabha’s priority was only to secure the contract and not to uphold the law or protect larger public interest.

45. It would thus be apt at this stage to reproduce the concluding passage of fact finding enquiry conducted by CVC, which reads as follows:

“It is significant to place on record that the notification of closure of the reverse auction generated by system at 13:03:47 hrs on 05.05.2015 submitted by M/s AMR Dev Prabha, in fact, belongs to another bidder M/s. Montecarlo Ltd. Neither BCCL nor C1 India Pvt. Ltd. have ever placed such notification on record. It remaims unclear as to how and when M/s. AMR Dev Prabha got possession of this document, which actually belonged to M/s. Montecarlo Ltd. and which became the basis for M/s. AMR Dev Prabha to stake their claim of being the lowest bidder at 13.03.47 hrs. It is also seen that this important fact, of generation of notification of closure of the auction by the system at 13:03:47 Hours, as the bid of M/s AMR Dev Prabha remained unresponded for the specified period of 30 minutes, was neither reported by C1 India to BCCL nor to the participating bidders. Such, notification of closure of the auction, even though generated during the period of interruption in connectivity of the bidders with the server, should have been declared as ‘null and void’ before restarting the auction process. Even, BCCL did not demand any report Page | 24 from C1 India Pvt. Limited for the interruption period so as to take a call before proceeding further for restart of the reverse auction process. Further, considering that during this period BCCL was aware of the connectivity problem being faced by the bidders, it should have exercised intense real time monitoring which have not been done. Failure to do so is a reflection of the fact the adequate incident management system was not put in place by the service provider M/s. C1 India Pvt. Ltd. to handle such eventuality effectively.

Page | 28 appeal filed by AMR­Dev Prabha is dismissed. The Division Bench judgment of the High Court dated 12.04.2018 is set­aside and the writ petition filed by AMR­Dev Prabha is dismissed. No order as to costs.

……………………….. CJI.

(S. A. BOBDE) ………………………… J.

(B.R. GAVAI) …………………………. J.