Dismissed

M/S. Eswara Kamadhenu Restaurant Private Limited v. the Union of India

Rajasthan HC1 Jul 2019CW/16695/2018

Case brief

AI extract

What is this about?

The petitioner challenged the rejection of its technical bid for mess services due to failure to sign the entire tender document despite signing the technical bid. The court held that signing the document is mandatory and the defect is not curable.

What did the court decide?

The writ petition and the stay petition were dismissed. The deposit of Rs.50,000/- was ordered to be returned to the petitioner.

M/S. Eswara Kamadhenu Restaurant Private Limited Vs… — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 16695/2018

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M/s. Eswara Kamadhenu Restaurant Private Limited, Through Its Director Sachin Gupta S/o Muna Lal Gupta, Aged About 38 Years, R/o 107-B Ground Floor, Goutam Nagar, New Delhi- 11009.

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----Petitioner

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Versus

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The Union Of India, Through The Secretary, Ministry Of Health And Family Welfare, Government Of India, New Delhi.

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All India Institute Of Medical Sciences, Jodhpur Through Its Director, Basni 2^nd Phase, Jodhpur.

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The Mess Committee Of All India Institute Of Medical Sciences Jodhpur, Through Its Members Secretary, AIIMS Jodhpur.

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----Respondents

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For Petitioner(s) : Mr. A.R. Godara For Respondent(s) : Mr. Sanjeet Purohit Mr. Tribhuvan Gupta

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JUSTICE DINESH MEHTA

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Order

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01/07/2019

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By way of the present writ petition filed under Article 226 of the Constitution of India, the petitioner has laid challenge to the action of the respondent – All India Institute of Medical Sciences, Jodhpur, vide which the petitioner’s technical bid has been rejected for non-compliance of the following condition:-

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“The tender shall be submitted online in Two parts, viz., technical bid and financial bid. All the pages of bid being submitted must be signed and sequentially numbered by the bidder irrespective of nature of content of the documents before uploading.”

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(2 of 4)

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[CW-16695/2018]

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Having narrated the facts relevant, Mr. Godara contended that the rejections of petitioner’s technical bid by the respondents was arbitrary and not in accordance with law, inasmuch as the petitioner has though signed the technical bid, being Annexure-I attached with the tender document, but somehow forgot to sign the entire tender document. According to him, the inadvertent error on the part of the petitioner in omitting to sign the tender document was not fatal and ought to have been ignored by the respondents. He further submitted that the lacuna or defect left in the tender document was curable and the respondents ought to have issued a notice to the petitioner requiring him to cure the same and/or sign the tender document.

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Mr. Sanjeet Purohit, learned counsel appearing for the respondents, submitted that the error of not signing the tender document cannot be treated to be a simple omission. It is fatal to the very existence and veracity of the tender document. Until and unless tender document is signed by the petitioner, the same cannot be treated to be a valid tender. He submitted that Conditions Nos.7 and 9 of the terms and conditions of the tender, as reproduced hereinbelow, clearly enjoins upon a bidder to sign each and every paper of the tender document. The Conditions Nos.7 and 9 read thus:

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]

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“7. The successful tenderer will have to deposit a Performance Bank Guarantee of Rs.25,00,000.00 (Rupees Twenty Five Lakh only) by way of Bank Guarantee of scheduled bank in favour of Mess Committee, AIIMS, Jodhpur as per the prescribed format attached as Annexure-IV payable at Jodhpur valid for 60 days beyond the expiry period of contract.

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Each page of the tender documents and papers submitted along with should be numbered, signed and stamped by the

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(3 of 4)

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[CW-16695/2018]

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authorized signatory in acceptance of the terms and conditions laid down by the Mess Committee, AIIMS, Jodhpur.”

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The requirement of signing each page of the tender documents is mandatory and in case a bidder fails to sign the same, it cannot be treated to be a valid tender.

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In rejoinder, Mr. Godara, learned counsel for the petitioner, submitted that the respondents have permitted other bidders to cure various other defects, such as, incorrect pagination etc., while also permitting them to furnish certificate of registration of the Labour Department etc. Therefore, similar indulgence ought to have been granted to the petitioner, urged Mr. Godara.

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Apart from the above, learned counsel for the petitioner submitted that the bids submitted by all the bidders have been opened under the directions of this Court and the petitioner has been found to be the lowest bidder. That being the position, he submitted that the petitioner be permitted to sign the tender document and the respondents be directed to award the contract for Mess Services to the petitioner, which would be in the interest of even AIIMS, besides being serving the petitioner’s cause.

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Having heard learned counsel for the parties and upon perusal of the material available on record, this Court has no hesitation in holding that the signing of tender document is a quintessential part of furnishing a tender. Until and unless a tender is signed, the same cannot be treated to be a valid tender and omission to sign the tender document cannot be treated to be a curable defect. Conditions No.7 and 9 of tender document,

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(4 of 4)

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[CW-16695/2018]

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reproduced hereinabove, explicitly enjoins upon a bidder to sign the tender document.

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The petitioner’s contention that he has nevertheless signed the technical bid (Annex.1) and accepted all the terms and conditions of the tender, hence, it should be treated to be a sufficient compliance of Conditions Nos.7 and 9 of the terms and conditions, cannot be countenanced for the reasons stated above.

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The petitioner’s other contention that other bidders have been permitted to cure the defects, which were major defects, cannot be gone into or considered behind the back of such bidders, as the petitioner has chosen not to implead them as party respondent.

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This being the position, this Court does not find any error in the action of the respondent No.2 in rejecting petitioner’s technical bid. The writ petition is, therefore, dismissed.

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The Stay Petition No.16676/2018 also stands disposed of accordingly.

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As there is no factual mis-statement and the petitioner’s case is based upon a legal argument, though unsustainable, the cost of Rs.50,000/-, deposited by the petitioner in the form of Demand Draft, pursuant to the order dated 29.10.2018, be returned to it forthwith.

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(DINESH MEHTA),J

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75-skm/-

M/S. Eswara Kamadhenu Restaurant Private Limited v. the Union of India

Case brief

What is this about?

What did the court decide?

M/S. Eswara Kamadhenu Restaurant Private Limited v. the Union of India

Case brief

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What did the court decide?

What the court decided

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