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15. The respondent on the other hand, would contend that no interference in this appeal is warranted in view of the concurrent view taken by the Arbitral Tribunal as well as the High Court that it was not necessary for the respondent to participate in the tender process to exercise ROFR. For, the order dated 23rd July, 2016 does not prescribe such a pre- condition nor does it prohibit the respondent from exercising the ROFR without participation in the bidding process. It is contended that the order dated 23rd July, 2016 is based on consent of the parties and has never been challenged by the appellant and as such, the appellant was obliged to comply 2010 SCC Online Del 2687 2013 SCC Online APTEL 46 with the same in its letter and spirit. According to the respondent, having completed 78% work of the Project (which according to the appellant, is only around 62%) and having invested Rs.715 crores on the Project, by no stretch of imagination can the respondent be termed as a non-serious contender. According to the respondent, the appellant cannot be heard to challenge the order dated 23rd July, 2016, which confers ROFR, as it was based on consent of the parties and also attained finality. Further, the purpose of participating in the bidding process was only to ascertain as to whether the offer given by the bidder was a responsive offer. The respondent having already completed substantial work of the Project, by no stretch of imagination, can be said to be incapable of completing the balance work. This aspect had commended to the Arbitral Tribunal, as can be discerned from the order dated 23rd July, 2016. The Arbitral Tribunal in that order also unambiguously recorded that it was not the case of the appellant herein that the respondent had been black listed or was incapable of completing the balance work. Not only that, the Arbitral Tribunal went on to observe that it would not be in the public interest to allow a third party to take over the balance work of the project. On that basis, direction was given to the appellant to allow the respondent to exercise ROFR, subject to certain conditions. The order passed by the Arbitral Tribunal, in essence, was on the basis of consent of the respondent with unilateral conditions imposed by the appellant, which the appellant should not be allowed to resile. According to the respondent, it was impermissible for the appellant to incorporate conditions such as clauses 3, 26, 27 and 30 in the tender documents, as the same are in the teeth of order dated 23rd July, 2016 passed by the Arbitral Tribunal and, more so, without seeking liberty from the Arbitral Tribunal in that behalf. It is contended that the purpose of the tender process is only to evoke responsive offers. There would be no logic or rationale for participation of the respondent in the backdrop of clause 3.2(f) which is a deeming provision virtually declaring the respondent as eligible and qualified for the work. The capability of the respondent to complete the balance work was never in doubt as has been recorded by the Arbitral Tribunal. In any case, in the absence of liberty given by the Arbitral Tribunal, it was not open to the appellant to incorporate such a pre-condition in the tender document. It is contended that such pre-condition would require the respondent to furnish bid security amount in which case it would be a fait accompli situation for the respondent if it were to refuse or fail to match the lowest bid. For, it would result in forfeiture of its bid security and also entail in black listing. The order dated 23rd July, 2016, is one of ROFR and not for right to participate in the bidding process as such. Further, the submission of financial bid by the respondent was not to find out whether it is L-1. In that, all the bidders participating in the subject tender process pursuant to tender notice, were made fully aware in the bid document itself that the respondent had ROFR and L-1 would be compensated by the respondent as provided in the order dated 23rd July, 2016. Therefore, the respondent was not expected to bid with itself by submitting a financial bid and then matching the same. The respondent would contend that the appellant has wrongly asserted that the respondent was aware of the conditions prescribed in the tender documents and yet did not choose to participate in the bidding process. For, the bid documents were neither furnished to the respondent nor placed on record before the Arbitral Tribunal. Thus, the conditions on which reliance has now been placed by the appellant were never pointed out to the respondent or to the Arbitral Tribunal at any point of time. In any case, the appellant had completely failed to show as to what prejudice would be caused by allowing the respondent to exercise ROFR without participating in the tender process. The learned Single Judge of the High Court repeatedly made queries in that behalf which was not explained by the appellant, as is noted in the impugned judgment. Resultantly, the High Court rejected the plea of the appellant and held that it was not necessary for the respondent to participate in the bidding process in terms of order dated 23rd July, 2016, to exercise ROFR. The respondent has distinguished the two decisions relied upon by the appellant and would contend that the same do not lay down any legal principle that participation in the bidding process is a condition precedent for exercise of ROFR. It is contended, in the present case, the ROFR, without condition of participation in the bid, was granted by the Arbitral Tribunal on the basis of consent of the parties. It is contended that in view of the concurrent view taken by the Arbitral Tribunal as also the High Court, this Court should be slow in entertaining this appeal.

19. The gravamen of the plea taken by the respondent is on the assumption that the interim order passed by the Arbitral Tribunal on 23rd July, 2016 bestows unconditional right on the respondent to exercise ROFR, in the event tender process in respect of the balance work is resorted to. For that, we may straightway advert to the order dated 23rd July, 2016. That is an order granting prayer clause (b) in the application preferred by the respondent under Section 17 of the Act. The same has been reproduced in paragraph 3 above. Notably, there is nothing in the entire application (filed by the respondent under Section 17 of the Act) to even remotely suggest that the respondent had prayed in clause (b) that it be exempted from participating in the proposed tender process as such, and could yet exercise ROFR before the letter of intent was to be issued to the lowest bidder. The exemption in this regard cannot be inferred. It has to be an express exemption sought and so granted and disclosed in the tender documents. The respondent may be right in contending that the interim order passed by the Arbitral Tribunal dated 23rd July, 2016 neither prescribes that the respondent must participate in the bidding process as a condition precedent for exercise of ROFR nor does it prohibit the respondent from exercising ROFR without participation in the bidding process. The order is, indeed, silent in that behalf. But, that will be of no avail to the respondent. For, such exemption ought to have been prayed and expressly granted by the Court. In absence of such express exemption, the respondent was obliged to comply with the terms and conditions of the tender documents publicly notified by the appellant as per its understanding of the order of the High Court. Having failed to participate in the bidding process in consonance with such notified terms and conditions, the respondent lost the opportunity granted under the order dated 23rd July, 2016 to match the lowest bid or to exercise ROFR. Any other view would fall foul of the fundamental policy of the Indian law and cannot be countenanced.

21. The approach of the High Court in the appeal preferred by the appellant was no different. The relevant extract of the High Court decision has been reproduced in paragraph 13 above. The High Court did not find any error, much less manifest error, in the view taken by the Arbitral Tribunal. Further, it can be gleaned from the observations of the High Court in the impugned judgment that the High Court was more eager to know as to what prejudice would be caused to the appellant if the respondent had not participated in the bidding process. This query of the High Court is begging the question. For, that cannot be the primary basis to answer the relief claimed by the respondent in the application under Section 17 of the Act. An entity who stays away from the bidding process and fails to comply with the express terms and conditions of the tender documents cannot claim any right to match the lowest bid or exercise ROFR. Only a responsive bidder could do so. The High Court has overlooked the fact that the appellant is a body corporate under the 1988 Act. It has to act in a just and fair manner in the matter of allocation of contract albeit the balance and unfinished work of the Project. No express exemption has been granted to the respondent vide order of the Arbitral Tribunal dated 23rd July, 2016 – to exercise ROFR or match the lowest bid without participating in the bidding process. The respondent had the option to participate in the bidding process which was not availed of for reasons best known to the respondent. The High Court also overlooked the fact that the tender process was not an empty formality and with the initiation of the same, third parties, who participated in the bidding process, were likely to be prejudiced by allowing the respondent to match the lowest bid or exercise ROFR, without participating in the bidding process despite the express stipulation in that behalf in the tender documents. Suffice it to observe that the High Court committed the same error as committed by the Arbitral Tribunal in not examining the core issues for grant or non-grant of the relief to the respondent, in conformity with the fundamental policy of Indian law.

22. The argument of the respondent that the order dated 23 rd July, 2016 passed by the Arbitral Tribunal was based on consent of the parties and was never challenged by the appellant, does not take the matter any further. The respondent on the one hand, contends that the said order was based on consent of the parties and also in the same breath contends that the respondent consented to the unilateral conditions stipulated by the appellant, which the appellant should not be allowed to resile as prayed by it. Be that as it may, on a fair reading of the order dated 23rd July, 2016, it is noticed that the same is the outcome of a contest and not founded on any concession. In any case, the order makes no express mention about granting of exemption to the respondent from participating in the proposed bidding process. The fact that the respondent has already invested a substantial amount in the subject Project and has also completed substantial work can be no basis to overlook the fundamental policy of Indian law regarding the subject of tender process and the rights and obligations of the parties involved. We are also not impressed by the argument of the respondent that the respondent was not expected to refuse to match its own bid or that if it had participated in the bidding process and exercised ROFR, then it would have resulted in consequence of black listing and forfeiture of bid security amount. The fact that the respondent would exercise ROFR would mean that the bid given by the respondent was not L-1. If it was not L-1, exercising ROFR would obviously neither entail in forfeiture of the bid security nor would visit the consequence of black listing. This plea is obviously an argument of desperation and belated one to justify the failure to participate in the bidding process.