M/S. Adishakti Petroleum ... vs Indian Oil Corporation Ltd. ...
2021 Latest Caselaw 12555 Bom

        20-wp-1024-21(j).odt                                           1/11


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY


                               NAGPUR BENCH, NAGPUR


                          WRIT PETITION NO. 1024 OF 2021


        1.       M/s Adishakti Petroleum Service,
                 Indian Oil Corporation Dealer at
                 Manjankhed (K), Taluka Chandur Railway
                 District Amravati, through its Proprietor
                 Roshan C. Agrawal

        2.       M/s Agrawal Service Centre,
                 Indian Oil Corporation Dealer at Chandur
                 Railway, Taluka Chandur Railway
                 District Amravati through its
                 Proprietor, Champalal N. Agrawal ..... PETITIONERS

                                    // VERSUS //

        1.       Indian Oil Corporation Ltd.,
                 Indian Oil Bhavan, BKC, G Block
                 Bandra East, Mumbai 400 051
                 through its Chief General Manager
                 E-mail : [email protected]

        2.       Sushant Kumar
                 Deputy General Manager, Indian Oil
                 Corporation, Indian Oil Bhavan, BKC
                 G Block, Bandra East, Mumbai 400 051
                 through its General Manager (Operation)
                 Email : [email protected]

        3.       Akola Terminal, Indian Oil Corporation,
                 Akola Petroleum Depot, Gaigaon
                 Tahsil Balapur, District Akola 444109
                 Email : [email protected]        ...RESPONDENTS

        =-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Firdoz Mirza, Advocate for petitioners.
        Shri Rohit Joshi, Advocate for respondent nos.1 to 3.
        =-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-



::: Uploaded on - 07/09/2021                         ::: Downloaded on - 10/10/2021 17:45:39 :::
         20-wp-1024-21(j).odt                                       2/11


                                     CORAM : SUNIL B. SHUKRE AND
                                             ANIL S.KILOR, JJ.

DATED : 3rd September, 2021.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Heard Shri Firdoz Mirza, learned counsel for the

petitioner and Shri Rohit Joshi, learned counsel for the

respondent nos. 1 to 3.

2. Rule. Rule is made returnable forthwith. Heard

finally by consent of the parties.

3. At the outset, we must record the statement

made on behalf of the learned counsel for the respondents

Shri Rohit Joshi. He states on instructions, that none of the

respondents wish to file any reply to this petition. The reason

given for not filing of the reply is that there is an admission

given by the petitioners in their communication dated 19 th

November, 2020 about the delay on their part, in opening the

portal which put the petitioners on notice that TT of higher

capacity is required or petitioners are required to modify the

consortium to ensure that the offered TT takes care of the

volume.

20-wp-1024-21(j).odt 3/11

4. This notice was published on the portal of the

respondent no.1 on 26th November, 2019 and it was

admittedly opened on 9th February, 2020, after about a delay

of two and half months.

5. The delay being part of the record could not have

been denied by the petitioners. But, the petitioners have

given their explanation in the communication dated 19 th

November, 2020 and have also stated about the efforts taken

by them to meet the Tender Inviting Authority and the Deputy

General Manager (Operation), MSO at Mumbai. They have

also stated that they had booked Tata Company's LPT 2818 of

higher capacity and had sent the booking slip alongwith their

reply to the authority.

6. Such admission given by the petitioners

regarding their belatedly opening of the portal and reading

the notice in question cannot however, be construed as

accepting the entire stand of the respondents. This is evident

not only from the communication dated 19 th November, 2020,

but also from the various mails and the correspondences that

have been exchanged between the petitioners and the

respondents.

20-wp-1024-21(j).odt 4/11

7. Be that as it may, now, there is no reply filed by

any of the respondents.

8. So far as the dispute regarding demand of higher

capacity of TT or modification of consortium is concerned, a

few clauses of the expression of interest would help us in

adjudicating upon the dispute. These clauses are clause 5,

clause 16 and clause 17. They are reproduced as below:

5. RO Dealers/Consumers can offer ready TT (With RC & PESO Licence) OR offer TT with Purchase Invoice (containing chasis No.) OR offer TT with Booking Slip for the Chassis from authorize dealer. Separate purchase invoice/booking slip shall be required to be submitted for each of the TT offered.

16. After submission of the EOI a committee shall evaluate the offers of TTs through customized Excel tool considering various factors like sales volume, RTD, Average Speed of TTs, working days, Loading/Unloading time etc. The customized excel tool calculates the number of TTs required considering volumes of understanding partners for last 12 months and RTD etc. In case the there is a mismatch w.r.t. viability, the dealers will be asked to either offer additional TT or exclude understanding members as the case may be. This process shall be complete within 2 months of the submission of EOL. The decision of the Committee shall be final in evaluation of the feasibility of TTs offered and understanding arrangement.

17. If average monthly sales of dealer (of preceding two FY) is more than 200 KL per month, the committee shall recommend to dealer to offer higher capacity TT only (18 KL or above).

20-wp-1024-21(j).odt 5/11

9. These clauses would show that the bidders can

offer the vehicles which are called tanker trucks readily

available with them or also the tanker trucks which are about

to be made available to them on the basis of their purchase

invoice or can offer the tanker trucks which are going to be

made available to them in near future. The capacity of the

tanker trucks offerred would have to be of 18 kiloliters or

more when the average monthly sales of the dealer or bidder

is more than 200 kiloliters of POL. The entire process of

evaluation of the bids shall be completed by the Committee

within two months of the submission of the expression of

interest. Clause 17, in particular, indicates that if it is noticed

by the Committee that the capacity of offered TT is lower, it

can recommend to the dealer or the bidder offering of a

higher capacity TT.

10. In the light of clause 17 of EOI, it appears, that

the Committee on 26th November, 2019 posted a notice on the

portal of the respondent no.1 advising the petitioners to offer

another TT or higher capacity TT or to modify consortium to

ensure that the offered TT takes care of the volume. It also

gave a warning to the petitioners, that in case they did not

submit the required documents by 3rd December, 2019 by

20-wp-1024-21(j).odt 6/11

11.00 a.m., their consortium shall be dropped. The

petitioners, however, did not open the portal till February,

2020 and when they came across this notice, by that time the

deadline fixed by the notice posted on the portal on 26 th

November, 2019, had expired. Yet the petitioners made an

effort to convince the authorities that as they have already

booked higher capacity TT, their acceptance of the offer

should be left unmodified and unharmed and the acceptance

of the offer had already been done by the Committee when it

sent a communication to the petitioners on 13 th July, 2019

(Page 22). But, the same was not accepted by the respondents

and by the impugned communication dated on 12th

November, 2020, the petitioners were informed by the

respondent no.2 that they did not respond on the line of the

recommendation of the Committee, and hence their

consortium was dropped but their EOI was accepted. This

letter has been challenged in the present petition.

11. Learned counsel for the petitioners has

submitted, by placing his reliance on the aforestated clauses

of the EOI and second communication received by the

petitioners from the Committee on 7th November, 2020

20-wp-1024-21(j).odt 7/11

accepting their tender, that the impugned communication

issued by respondent no.2 is arbitrary and illegal.

12. Shri Joshi, learned counsel for the respondents

submits that the petitioners are responsible for not responding

to the recommendation of the Committee within the deadline

given by the Committee and therefore, now the respondents

cannot claim that their offer be accepted as it is and without

any conditions.

13. We are not inclined to accept the stand taken by

the respondents. The reasons are many. Firstly, the

evaluation of the offers of the tenderers was to be completed

by the Committee within two months from the submission of

the EOI. In this case the EOIs were submitted on 4 th June,

2019 and that means the evaluation ought to have been

completed latest by 3rd August, 2019. In fact, the evaluation

was also completed by the Committee within the stipulated

period of time. This could be seen from its communication

dated 13th July, 2019 (page no.22). By this communication,

the Committee informed the petitioners that their bid was

admitted and that they were called upon to get in touch with

the Tender Inviting Authority. It was after a delay of about

20-wp-1024-21(j).odt 8/11

five and half months or to be precise on 26 th November, 2019

that the petitioners were informed by the Committee that the

petitioners were required to offer another TT or higher

capacity TT or modify the consortium. Such communication

after having completed evaluation of the offers within the

stipulated period of time could not have been issued by the

Committee and if it was issued by the Committee, the

Committee should have been taken into consideration the

explanation given by the petitioners in giving their belated

response. Infact, it is seen by us from the communication

dated 7th November, 2020 that the Committee was indeed

mindful of the explanation given by the petitioners in giving

their belated response and was also considerate in respect of

the same and that was the reason why, the Committee by this

very communication dated 7th November, 2020, informed the

petitioners that their tender was accepted following the

technical evaluation of the duly constituted committee and

then it called upon the petitioners to contact Tender Inviting

Authority.

14. The above discussion would clarify a few but

important aspects of the matter. Firstly, the evaluation which

was to be completed latest by 3rd August, 2019, was not

20-wp-1024-21(j).odt 9/11

completed in stipulated time and there was some delay on the

part of the evaluation Committee, in completing the same.

Secondly, there was a belated demand made by the

Committee from the petitioners for their submission of the

higher capacity TT or modification of their consortium.

Thirdly, petitioners had given their offer for providing higher

capacity TT, though with some delay. Fourthly, taking into

consideration all the facts and circumstances of the case, the

Committee also concluded their extended evaluation by

informing the petitioners that their tender was accepted by

the Committee as per its communication dated 7th November,

2020.

15. Now, if the evaluation of the offer given by the

petitioners was complete in all respects by 7 th November,

2020, we do not understand as to what made respondent no.2

to send another communication dated 12th November, 2020 to

the petitioners informing them that as they were not

responsive online, he has dropped the consortium. This

communication which is impugned here, has been sent by the

respondent no.2 in his capacity as DGM (OPS), MSO and not

in its capacity as any member of the evaluation Committee. It

is also not known to us as to who were the members of the

20-wp-1024-21(j).odt 10/11

evaluation Committee, as no reply has been chosen to be filed

by any the respondents. Nevertheless, on bare reading of the

impugned communication, one can very well see that it has

not been issued by Mr. Sushant Kumar in his capacity of being

a member of any Committee, but, in his capacity as Deputy

General Manager (OPS), MSO. As per the terms and

conditions stated in the EOI, there is no role contemplated for

the Deputy General Manager, the respondent no.2, as regards

the decision to be taken in the matter of evaluation of the

tenders and their acceptance. The sole authority in this

regard has been conferred upon the Committee, as seen from

the clause 16 of the E.O.I.

16. In view of above, we find that the impugned

communication to the extent it drops petitioners consortium is

arbitrary and illegal. It runs contrary to the decision of the

Committee communicated to the petitioners as per the

communication dated 7th November, 2020. It is also not

written to the petitioners in the capacity of any Member of the

Committee by respondent no.2. The petition, therefore,

deserves to be allowed.

20-wp-1024-21(j).odt 11/11

17. The petition is allowed in terms of prayer clause

(a). Rule accordingly. No costs.

                        JUDGE                                           JUDGE
  sknair