Dismissed

M/S Radha Sami Transport Co. Jind v. Food Corporation of India and Ors.

Punjab & Haryana HC10 May 2012CWP/160/2012

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging the rejection of a technical bid by the Food Corporation of India. The Court held that the petitioner failed to submit a mandatory Registration Certificate required under the tender notice, despite marking 'yes' on the form and including the deed. The absence was not excused, and the bid was lawfully rejected.

What did the court decide?

Writ petition dismissed with no order as to costs. The original record to be returned to counsel for respondents.

M/S Radha Sami Transport Co. Jind Vs… — Public Procurement and Tenders | Punjab & Haryana HC (2012)

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CWP No. 160 of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 160 of 2012 DATE OF DECISION: May 10, 2012

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M/s. Radha Swami Transport Company

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.........PETITIONER(S)

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VERSUS

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Food Corporation of India and others

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......RESPONDENT(S)

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CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MR. JUSTICE G.S. SANDHAWALIA

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Present: Mr. R.L. Batta, Sr. Advocate, with Ms. Geeta Batta, Advocate, for the petitioner.

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Mr. K.K. Gupta, Advocate, for respondents no. 1 and 2.

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Mr. S.K. Garg Narwana, Advocate, for respondent no. 3.

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G.S. SANDHAWALIA, J.

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The present writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari to quash letter dated 22.12.2011 (Annexure P-11) whereby, the technical bid of the petitioner as a Transport Contractor for Narwana Centre has been rejected by respondents no. 1 and 2. A further prayer has been made that a direction be issued to open the price bid of the petitioner in Court which is appended in original with this petition and if the tender price of the petitioner is found to be lower than respondent no. 3, a direction be issued to award the tender to the petitioner.

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The case of the petitioner is that the petitioner is a partnership

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CWP No. 160 of 2012

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firm having six partners and the partnership was got registered with the Registrar of Firms and Societies, Jind on 12.10.2011 and copy of the registration certificate of the partnership has been attached as Annexure P-1. The petitioner had submitted its bid against the notice inviting tender which was published in the month of October, 2011 and the tenders were opened on 24.10.2011 in the presence of the parties and the tender of the petitioner was found complete in processing and verification from all angles and the petitioner fulfilled the eligibility criteria and three parties had submitted the tender for the Narwana Centre. One was the petitioner, the other was M/s. Bhaichara Transport Company and the third was M/s. Sat Sahib Transport Company-respondent no. 3. It is further pleaded that while the documents were being verified, the Food Corporation of India, respondents no. 1 and 2 wrongly terminated the contract awarded to M/s. Shree Shyamji Transport Company vide letter dated 05.11.2011 in which some partners were common as that of the present firm. Due to the termination order which carried wide ramifications and amounted to debarring the partners of the firm, the technical bid of the petitioner was considered to have been rejected.

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The partners of M/s. Shree Shyamji Transport Company challenged the termination order in CWP No. 21694 of 2011 and thereafter filed civil miscellaneous application no. 16341 of 2011 in which it was ordered that the tender submitted by the petitioners shall not be rejected for the reasons contained in Annexure P-16. Various allegations were also levelled regarding the tender price bid of M/s. R.S. Labour & Transport Contractor, Jind. It was alleged that the officials of the respondent-Food Corporation of India had torn the tender bid of the said company earlier and

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CWP No. 160 of 2012

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the respondents were finding ways and means to oust the tender bid. Accordingly, it was pleaded that the rejection order dated 22.12.2011 on the ground that the tender did not include the registered partnership certificate was only an excuse to disqualify the petitioner. The action was then challenged whereby the earnest money deposited was sought to be refunded by the Food Corporation of India.

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In the written statement filed by the Food Corporation of India, it is specifically averred that in order to prove the partnership being registered, the tenderer was required to submit the attested copy of partnership and the certificate of registration which was categorically mentioned in the list of documents to be attached with the tender form provided in Appendix II of MTF. The petitioner only submitted the partnership deed and did not disclose that the firm is a registered firm and the certificate of registration was not attached. Even in the forwarding letter dated 24.10.2011 attached with the tender form, nowhere it was mentioned that the certificate of registration is attached therewith. However, other documents which were actually forwarded with the tender form were duly mentioned in the forwarding letter. A true copy of the forwarding letter was appended as Annexure R-1 with the written statement.

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That respondent no. 3, in its written statement, also took the plea that the writ petition was liable to be dismissed on the ground of delay and laches and that respondent no. 3 had commenced the work after furnishing bank guarantee on 30.11.2011 and after submitting its joining report on 31.12.2011. It was pleaded that the tender of the petitioner-firm was rejected due to non submission of the documents of registration, which was a mandatory condition. It was contended that the price bid had already

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CWP No. 160 of 2012

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been returned back to the petitioner-firm and once it was out of the office of respondents no. 1 and 2, the petitioner's claim could not be taken into account.

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In the replication filed by the petitioners to the written statement of respondents no. 1 and 2, a plea was taken that the registration certificate had been removed from the file and would not be a ground to disqualify the petitioner because the fault was of the officials of respondents no. 1 and 2 and complaints have been made to this effect and the price bid of the petitioner had been returned without permitting him to compete with the other bidder and that he had categorically marked 'yes' to show that the registration certificate was attached.

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Notice of motion in the writ petition was issued on 04.01.2012 and thereafter on 09.01.2012, in the stay application filed by the petitioner, this Court had directed that the commencement of the tender work shall be subject to the final decision of the case. As per Clause III of Part A and Appendix III, attested copy of registered deed of partnership alongwith certificate of registration was to be attached alongwith the tender which was to be filled for the road transport contractor. Various other documents like power of attorney, certificate of experience, duly audited profit and loss account statement and copy of income tax, PAN documents were to be attached. The list of documents to be appended reads as under:-

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“1.Attested copy of registered Deed of partnership/memorandum and Articles of Association/

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By laws/ Certificate of registration etc. as applicable. Yes/No.

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2. Power of attorney of person signing the tender.

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CWP No. 160 of 2012

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Yes/No.

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3. Certificate of experience and details thereof (refer

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para 3 of invitation to tender). Yes/No.

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4. Duly audited/ P & L account and balance sheet or

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proceeding three years, if applicable yes/no.

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5. Copy of income Tax PAN.”

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The original record of the Corporation was presented by the counsel for the Food Corporation of India. Perusal of the said record shows that the petitioner, in its covering letter dated 24.10.2011, which is handwritten, had mentioned a list of six documents which were attached. The first document is the partnership deed wherein the names of the partners of the petitioner-firm had been given. The second document is the Power of Attorney whereby the power of attorney had been given to Raj Singh to operate bank accounts to bid and tender for all types of contracts. Besides this, the PAN application form, income tax return of the last three years, profit and loss account of Raj Singh, partner of the firm for the last three years and the experience certificate having done similar work had also been appended. A perusal of the file, thus, reveals that the registered certificate of partnership issued by the Registrar of Firms and Societies, Jind, which has now been appended with the writ petition, was never part and parcel of the tender submitted by the petitioner and it was mandatory as per the tender notice and as per Clause III of Part A and Appendix III.

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Even otherwise, the plea of the petitioner that the document was removed in order to prejudice him is a disputed question of fact and it would not be possible for the Court to come to the conclusion that there has been removal of the document at the instance of someone to prejudice the

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CWP No. 160 of 2012

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case of the petitioner. As noticed earlier, there was no mention of the said document in the handwritten covering letter itself.

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The alternative submission of the counsel for the petitioner that it had filled in the said form and had tick marked the word “yes”, is without any basis. The respondents have taken a categorical stand that the said document was not part of the tender submitted and from the record produced by the respondents which is duly paginated it becomes clear that the said document was not part and parcel of the tender submitted by the petitioner.

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Accordingly, keeping in view the fact that it was mandatory to submit the said documents, no fault can be found with the decision of the respondent-Corporation in rejecting the technical bid of the petitioner on this ground. The plea of the petitioner that his case should be considered for the financial bid accordingly cannot be entertained. Consequently, writ petition is dismissed with no order as to costs.

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The record of the department be returned to the counsel for respondents no. 1 and 2.

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10.05.2012 shivani

M/S Radha Sami Transport Co. Jind v. Food Corporation of India and Ors.

Case brief

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M/S Radha Sami Transport Co. Jind v. Food Corporation of India and Ors.

Case brief

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