Remanded

Sgs Pharmaceuticals (P) Ltd. v. State of Kerala

Kerala HC19 Sept 2016WP(C)/14597/2011

Case brief

AI extract

What is this about?

This writ petition challenged the forfeiture of earnest money deposit by the Kerala Medical Services Corporation Ltd. The court directed the first respondent to consider the petitioners' request for refund, considering subsequent relaxations in tender rules, and to pass orders after hearing both sides.

What did the court decide?

Petitioners directed to submit supplementary representation; respondents to consider the request and pass orders within three months after hearing parties.

Sgs Pharmaceuticals (P) Ltd. Vs State of… — Contract and Commercial Disputes | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 19382016

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WP(C).No. 14597 of 2011 (Y)

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PETITIONER(S):

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1. SGS PHARMACEUTICALS(P) LTD., 162/1.,PUHANA-IQBALPUR ROAD,

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VILL NANHERA,ROORKEE, UTTARAKHAND STATE, REPRESENTED BY ITS DIRECTOR NIMISH GUPTA, AGED 24 YEARS, SON OF VIPIN GUPTA, RESIDING AT E-13/1, KAVINAGAR INDUSTRIAL AREA, SECTOR-17,GHZIABAD, UTTAR PRADESH.

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2. NIMISH GUPTA, DIRECTOR, E-13/1, KAVINAGAR INDUSTRIAL AREA, SECTOR-17,

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GHAZIABAD, UTTAR PRADESH.

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BY ADVS.SRI.M.RAMESH CHANDER

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SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE (J) DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001

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2. KERALA MEDICAL SERVICES CORPORATION LTD., TRIVANDRUM-695 001, REPRESENTED BY ITS MANAGING DIRECTOR.

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R1 BY SR GOVERNMENT PLEADER SRI.SANTHOSH PETER R2 BY ADV. SRI.M.AJAY, SC,KERALA MEDICAL SERV.CORPN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.14597/2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE ORDER ISSUED BY 1ST RESPONDENT DATED 1/11/2007

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P2 COPY OF THE INVITATION FOR BID ISSUED BY THE 2ND RESPONDENT

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P3 COPY OF THE TENDER SUBMITTED BY PETITIONER WITH BREAK UP OF LANDED PRICE PER UNIT.

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P4 COPY OF THE LETTER ENCLOSING THE DEMAND DRAFT SENT TO THE 2ND RESPONDENT

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P5 COPY OF THE REPRESENTATION SENT BY 1ST PETITIONER DATED 28/6/2010 FOR REFUND OF THE FORFEITED AMOUNT

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P6 COPY OF THE REPRESENTATION DATED 28/7/10 REQUESTING TO AMEND THE EARNEST MONEY DEPOSIT FORFEITURE CLAUSE AND RETURN THE AMOUNT

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P7 COPY OF THE REPRESENTATION GIVEN ON BEHALF OF 1ST PETITIONER SEEKING REFUND OF FORFEITED EARNEST MONEY DEPOSIT DATED 10/8/2010

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RESPONDENT'S EXHIBITS:

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R2(A) COPY OF THE INSPECTION REPORT DATED 22/04/2010

/TRUE COPY/

P.A.TO JUDGE

sts

P.V.ASHA, J.

W.P.(C) No.14597 of 2011

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Dated this the 19^th day of September, 2016

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JUDGMENT

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The grievance of the petitioners is as against the forfeiture of the earnest money deposited with the 2^nd respondent corporation in terms of clause 8 of Ext.P2 tender notification.

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Petitioner company is engaged in manufacturing of drugs. The 2^nd respondent had invited tenders as per Ext.P2 notification in which the petitioner company participated and remitted earnest money deposit of 12.75 lakhs. As per clause 4(1a) 1% of the total aggregate value of the item tendered for, has to be remitted as earnest money deposit. The petitioner company participated in the tender remitting earnest money deposit of 12.75 lakhs. But the petitioner company was not successful. The 2^nd respondent corporation did not return the earnest money on the ground that the petitioners did not comply with CGMP of clause 8(3) of Ext.P2 notification. According to which the earnest money deposit of the tender would be forfeited without notice in case it is found that the manufacturing unit did not comply with CGMP but furnished an affidavit as in Annexure-III A. Since the petitioner company was not successful, it requested for return of earnest money submitting Exts.P5 to P7 representations. But the

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:2:

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W.P.(C) No.14597 of 2011

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stand of the 2^nd respondent is that as the petitioner company which participated in the tender and remitted the earnest money deposit consciously is not entitled to get refund of the earnest money in terms of the provisions of the tender notification itself.

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However the petitioner company submits that in the subsequent years the forfeiture of the amount based on similar provisions in the notification has been reduced and in the year 201112 the maximum amount which is being forfeited is Rs.1 lakh. It is submitted that in the subsequent years also the quantum of amount being forfeited is reduced further.

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The 2^nd respondent has filed a counter affidavit refuting the contentions raised by the petitioners.

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I heard the learned counsel appearing for the petitioners, the learned Government Pleader appearing for the 1^st respondent and the learned counsel counsel for the 2^nd respondent.

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The fact that the petitioner company remitted the earnest money deposit in terms of the provisions contained in the notification and the fact that in subsequent years the 2^nd respondent has relaxed the conditions regarding refund of the earnest money deposit are not disputed. Since the petitioners have already approached the Government and 2^nd respondent requesting for orders relaxing the

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W.P.(C) No.14597 of 2011

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:3:

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rigour of provisions contained in Ext.P2, I think it is only appropriate that the Government considers the matter after hearing the petitioners in the light of the relaxation effected to the stringent provisions regarding refund in the subsequent years.

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In the above circumstances, 1^st respondent is directed to consider and pass orders on Ext.P6 representation which is already submitted by the petitioners. Petitioners will be free to submit supplementary representation if any along with the copy of the judgment. Orders shall be passed by the Government after affording an opportunity of hearing to the petitioners and the 2^nd respondent within a period of three months from the date of receipt of a copy of the judgment.

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Sd/-

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P.V.ASHA JUDGE

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rkc

Sgs Pharmaceuticals (P) Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sgs Pharmaceuticals (P) Ltd. v. State of Kerala

Case brief

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