Mbz-Rcc (Jv) vs Mumbai Metropolitan Region ...
2021 Latest Caselaw 7591 Bom

                                                                               30.wpl.12010-21.doc

Bhogale


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                         WRIT PETITION (L) NO.12010 OF 2021

       MBZ-RCC (JV)                                                       .. Petitioner
               vs.
       Mumbai Metropolitan Region Development Authority .. Respondent
                                      --------------------
       Ms. Amrita Panda, Mr. Ravichandra S. Hegde a/w Mr. Ashish
       Venugopal, Ms. Ankita Roy and Ms. Parinaz Bharucha I/b. Parinam
       Law Associates for the Petitioner.
       Mr. Gaurav Joshi, Senior Advocate a/w Mr. Raj Panchmatia, Mr.
       Peshwan Jehangir, Mr. Jaideep Singh Khattar, Mr. Anindya Basarkod
       and Mr. Nihar Thakkar I/b. Khaitan & Co. for Respondent.
                                      --------------------

                                     CORAM : S.C. GUPTE &
                                                 M.S.KARNIK, JJ.

                                     DATE      : 8th JUNE, 2021
                                                (THROUGH V.C.)

       P.C.

This Writ Petition challenges certain clauses of a notice

inviting tender issued by the Respondent. Learned counsel for the

Respondent tenders a short reply. The same is taken on record.

2. The Respondent Authority had earlier issued a notice inviting

tender for part design and construction of elevated viaduct and

stations for a certain linkage of Mumbai Metro Rail Project. The

Petitioner was the successful bidder. A letter of intent was issued to

it. According to the Respondent, the Petitioner, however, did not

carry out the work with dispatch and as a result, the contract was

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terminated by letter dated 31.01.2020. The Petitioner's bank

guarantees of about Rs.155 Crores for three particular contracts

have been invoked and encashed by the Respondent. This

termination and invocation of bank guarantees are subject matters

of a presently pending arbitration reference between the parties.

As a result of termination of the Petitioner's contract, a fresh Notice

Informing Tender (NIT) was issued by the Respondent Authority.

The Petitioner has been excluded for participating in the tendering

process due to the termination of its contract by virtue of the very

clauses incorporated in NIT, which are the subject matter of

challenge in the present Petition.

3. The main ground on which the Petitioner has been

disqualified is contained in Clause 1.1.3.1(v)(b) of NIT, which

prohibits a tenderer from biding for the contract, if his contract

having value of more than 10% of NIT cost of work, executed either

individually or in a JV/Consortium, should have been

rescinded/terminated by the Respondent Authority after award due

to non-performance by the tenderer or any JV/Consortium member

during the last 3 years. The rescision/termination of its original

contract itself has necessitated issuance of the present NIT. It is

not in dispute that the same clauses and their legality have been

the subject matter of challenge in the case of BVG India Ltd. Vs.

State of Maharashtra and Ors. 1 decided by a Division Bench of

this Court. The Division Bench has repelled the challenge to these

1 2021 SCC OnLine Bom 412

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Clauses in that case. Learned counsel for the Petitioner agrees that

this judgment fully covers her client's case and there are no

distinguishing features. We are in agreement with, and are bound

by, the decision of the Division Bench in that case. There is

nothing for us to take a diferent view.

4. Learned counsel for the Petitioner prays for some interim

protection in the matter, since she would like to carry this order in

an appeal before the Supreme Court. We are informed by learned

counsel for the Petitioner that Delhi High Court has taken a

diferent view of the challenge to the subject Clauses, and the

order passed by this Court in the case of BVG India Ltd. Vs.

State of Maharashtra and Ors. has been a subject matter of

challenge in an SLP already filed from that order. Learned counsel

submits that the Petitioner is already in Supreme Court under

Article 32 of the Constitution of India challenging these very

Clauses which are challenged here. That is no ground for granting

any interim protection to the Petitioner.

5. The Petition accordingly stand rejected.

6. No order as to costs.

 (M.S.KARNIK, J.)                                          (S.C.GUPTE, J.)




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