Dismissed

Abnco Vie Win Ent. Pvt. Ltd. v. Kerala Irrigation Infrastructure Development Corporation Limited (Kiidc)

Kerala HC7 Aug 2023WA/581/2023

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of an intra-court appeal filed against a Writ Petition challenging the rejection of a bid in a public tender. The Court held that the judgment of the Single Judge was correct, applying the apex court view that courts lack expertise to adjudicate technical tender issues and should not interfere unless total arbitrariness is shown.

What did the court decide?

The appeal fails and the Writ Appeal is dismissed.

Abnco Vie Win Ent. Pvt. Ltd. Vs Kerala… — Public Procurement and Tenders | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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MONDAY, THE 7^TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945

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W.A. NO. 581 OF 2023

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AGAINST THE JUDGMENT DATED 17.1.2023 IN WP(C).NO.14535/2022 OF THE HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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M/S.ABNCOVIE WIN ENT. PVT. LTD., REPRESENTED BY ITS AUTHORISED SIGNATORY, SHOP NO.15, DHEERAJ REGENCY CHS LTD. NEAR ANNEX MALL, BORIVALI (EAST) MUMBAI: 400066.

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BY ADVS.M/S.P.SHANES METHAR, N.KRISHNA PRASAD & BHARATH MOHAN

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RESPONDENTS/RESPONDENTS:

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1 KERALA IRRIGATION INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED (KIIDC), REPRESENTED BY ITS MANAGING DIRECTOR, PARVATHY, TC 36/1, NH 66 BYEPASS SERVICE ROAD, ENCHACKAL JN, CHAKAI.P.O., THIRUVANANTHAPURAM, PIN – 695024.

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2 MANAGING DIRECTOR, KERALA IRRIGATION INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED (KIIDC), REPRESENTED BY ITS MANAGING DIRECTOR, PARVATHY, TC 36/1, NH 66 BYEPASS SERVICE ROAD, ENCHACKAL JN, CHAKAI.P.O., THIRUVANANTHAPURAM, PIN – 695024.

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3 KOOTHRADANS INFRASTRUCTURE LLP, REPRESENTED BY ITS MANAGING PARTNER, VETTIKUNNU, POOKKOTTUMPADAM, MALAPPURAM, PIN – 679332.

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ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R-1 & R-2

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ADV. SRI. B.MOHANLAL FOR R-3

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.

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=============================================

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W. A. No. 581 of 2023

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(arising out of the impugned judgment dated 17.1.2023 in WP(C) No. 14535/2022)

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============================================== Dated this the 7^th day of August, 2023

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J U D G M E N T

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ALEXANDER THOMAS, J.

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The instant intra court appeal, filed under Sec.5(i) of the Kerala High Court Act, has been directed against the impugned judgment rendered on 17.1.2023 by the learned Single Judge, dismissing the instant WP(C). No. 14535/2022. The appellant herein is the writ petitioner in the WP(C) and the respondents herein are the respondents in the WP(C).

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Heard Sri.P.Shanes Methar, learned counsel appearing for the appellant/writ petitioner, Sri.Pirappancode V.S.Sudheer, learned counsel appearing for R-1 & R-2, Sri. B.Mohanlal, learned counsel appearing for contesing respondent No.3.

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The prayers in the instant Writ Petition (Civil) - WP(C). No. 14535/2022 are as follows:

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“A. To issue a writ of certiorari calling for the records leading up to the issuance of Ext.P5 and Ext P8, examine its propriety and legality and quash the same to the extent it disqualifies the bid of the petitioner;

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B. To issue a writ of mandamus or any other writ to declare that Ext P8 to the extent it disqualifies the technical bid of the petitioner is arbitrary

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W. A. No. 581 of 2023

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..2..

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and illegal and a further direction commanding the respondents 1 and 2 to pre-qualify the petitioner so as to enable the opening of the financial bid submitted by the petitioner.

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C. That on the financial bid of the petitioner being opened, to award the work consistent with the terms and conditions laid down in Ext P1;

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D. Any other relief that may be found fit in the facts and circumstances of the case. ”

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According to the appellant/writ petitioner Company, the said Company had responded to Ext.P-1 tender notice for the work of 'Desiltation of Chulliyar Dam'. The pre-qualification committee/tender committee evaluated the bids of the writ petitioner and the 3^rd respondent and that, by Ext.P-4 e-mail dated 8.4.2022, sent at about 10.56 A.M., the first respondent had informed the writ petitioner that its bid has been accepted. On the same day, by another e-mail (Ext.P-5), sent at about 11.23 A.M., the first respondent had again informed that the bid of the writ petitioner had been rejected. Later, by Ext.P-8, the stand taken therein by the first respondent was that the writ petitioner is disqualified. According to the writ petitioner, Ext.P-8 is, ex facie, arbitrary and illegal. The petitioner would contend that this is so because the petitioner had not been awarded any marks for 'general dredging experience' and further, one of the works executed by the petitioner, which would count for award of marks under sl.No. 5,

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..3..

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W. A. No. 581 of 2023

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namely 'special dredging experience and contract management experience' has been declined on the specious ground that the contract involves only supply of equipment, which is easily belied by the certificate/credentials submitted by the petitioner. The basic case of the appellant/writ petitioner is that, if the evaluation was done fairly and consistent with the conditions in Ext.P-1, then the petitioner would have easily surpassed the minimum required marks and therefore, its bid could qualify for the next round, namely that of financial bid.

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The learned Single Judge, after hearing both sides, has rendered the impugned judgment dismissing the above WP(C) on the ground that, there are serious limitations on the power of judicial review to consider and adjudicate the present pleas set up by the petitioner in the WP(C). Therein, the learned Single Judge has mainly relied on the decision of the Apex Court in M/s.N.G.Projects Limited v. M/s.Vinod Kumar Jain and Ors. [(2022) 6 SCC 127], wherein it has been held, in para 23 thereof, as follows:

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“In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering

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W. A. No. 581 of 2023

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..4..

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with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work. ”

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After hearing both sides and after going through the pleadings and materials on record, we are of the view that the said view rendered by the learned Single Judge is correct. It is now well settled, by various rulings of the Apex Court, including that rendered in M/s.N.G.Projects Limited v. M/s.Vinod Kumar Jain and Ors. [(2022) 6 SCC 127, para 23], that, a Court exercising the powers of judicial review may refrain from imposing its decision over the decision of the organisation inviting tenders, as to whether or not to accept the bid of a tenderer. A Court, in exercise of judicial review, may not have the expertise or wherewithal to examine the terms and conditions of the present day economic activities of the State and this limitation should be seriously kept in mind. Further, it has been laid down therein, that, the Court should be even more reluctant in

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..5..

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W. A. No. 581 of 2023

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interfering with contracts involving technical issues, as there is a requirement of the necessary expertise to adjudicate upon such issues.

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No case of total arbitrariness or perversity has been made out in the instant case. In that view of the matter, we are of the view that no valid grounds are made out to interfere with the well considered verdict of the learned Single Judge. Further, even if a different view is possible, we are not in a position to hold that the view taken by the learned Single Judge is unreasonable or illegal. Hence, no interference is called for in this intra court appeal.

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The appeal fails and the Writ Appeal will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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Sd/-

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C. JAYACHANDRAN, JUDGE

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MMG

Abnco Vie Win Ent. Pvt. Ltd. v. Kerala Irrigation Infrastructure Development Corporation Limited (Kiidc)

Case brief

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Abnco Vie Win Ent. Pvt. Ltd. v. Kerala Irrigation Infrastructure Development Corporation Limited (Kiidc)

Case brief

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What did the court decide?

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