Bombay High Court
S. A. Yadav vs Union Of India Through Chief Engineer ... on 8 May, 2025
Author: M.S.Karnik
Bench: M. S. Karnik
2025:BHC-OS:8189-DB
910.wpl.14272-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 14272 OF 2025
M/s. S. A. Yadav,
through its Proprietor, Mr. Sunil Yadav,
having his office at 213, 2nd Floor,
Decision Tower, Pune - Satara Road,
near City Pride Theatre, Bibwewadi,
Pune - 411 037. ... Petitioner
Versus
Union of India Through Chief
Engineer (C/South),
Office of the CAO (C), Central Railway,
New Administrative Building,
D. N. Road, CSMT - 400 001. ... Respondent
****
Mr. Gautam Ankhad, Senior Advocate a/w Mr. Asif Lampwala
Mr. Chirag Sancheti, Mr. J. D'Souza i/b. Bulwark Solicitors, for
the Petitioner.
Ms. Anamika Malhotra, for the Respondent.
****
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
DATE : 8th MAY, 2025
JUDGMENT (PER M.S.KARNIK, J.) :
1. This Petition under Article 226 of the Constitution
of India seeks a relief directing the Respondent to consider
the amended bank guarantee submitted by the Petitioner on
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24th April 2025. The facts of the case in brief are that the
Petitioner is a proprietary concern primarily engaged as a
Contractor for various works pertaining to Public Sector
Undertaking. The Respondent through the office of the Chief
Engineer (C/South), Central Railway issued the tender which
is the subject matter of challenge in the present Petition. By
the letter dated 24th April 2025, the Petitioner forwarded an
amended bank guarantee for Rs.64,91,600/- having a validity
upto 30th September 2025. Due to inadvertence, on 3 rd March
2025, in response to the tender floated by the Respondent,
the Petitioner submitted the original bank guarantee towards
bid security for a validity upto 10th July 2025.
2. The Petitioner qualified all the technical and other
requirements set out in the tender. The Petitioner apprehends
that due to the bank guarantee being provided for a period
upto 30th July 2025, the Respondent may reject the bid
submitted by the Petitioner.
3. Mr. Gautam Ankhad, learned Senior Advocate for
the Petitioner submitted that although the period for
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submission of bids had elapsed, the bids have not been
opened. It is therefore submitted that no prejudice would be
caused to the Respondent if it takes into consideration the
amended bank guarantee submitted by the Petitioner.
4. A few facts need to be set out in some detail which
are as under :-
On 3rd February 2025, the Respondent floated a
tender dated 3rd February 2025 for civil works in the Pune -
Satara Section of Pune - Miraj Doubling Work. The tender was
for an advertised value of Rs.126,83,10,112.11. The bids in
respect of the subject tender were required to be submitted
between 18th February 2025 and 4th March 2025. Along with
the respective bids, bidders were required to furnish earnest
money in the form of a 'bid security' of Rs.64,91,600/-. The
subject tender required that if the bid security was being
submitted in the form of bank guarantee, the same shall
remain valid for a period of 90 days beyond the validity period
for the tender. The Petitioner submitted its bid on 4 th March
2025. By a letter dated 3rd March 2025, the Petitioner
submitted a bank guarantee towards the bid security for
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Rs.64,91,600/-. This bank guarantee was for a validity upto
30th July 2025.
5. In the interregnum, the Petitioner also submitted
bids for other tenders floated by the Respondent. However, on
21st April 2025 the bids submitted by the Petitioner were
rejected for non-compliance of technical requirements. On
making enquiries, the Petitioner learnt that the bank
guarantee submitted by the Petitioner towards bid security
was for a validity of a period less than 90 days from the
validity period of the respective tenders.
6. Immediately, on 24th April 2025, the Petitioner
addressed an email to the Respondent. Along with the email,
the Petitioner forwarded a scanned copy of a letter dated 24 th
April 2025 and amended bank guarantee for Rs.64,69,600/-
with a revised expiry period date of 30 th September 2025. The
Petitioner did not receive any response.
7. Learned Senior Advocate submitted that the
Petitioner has executed several other tenders issued by the
Respondent for civil work in other projects which work has
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been executed without any demur. The Petitioner did not
receive any response to the representation. Learned Senior
Advocate submitted that as the bids have not been opened in
response to the subject tender, no prejudice would be caused
if the Respondent takes into consideration the amended bank
guarantee submitted by the Petitioner.
8. Ms. Anamika Malhotra, learned counsel for the
Respondent vehemently opposed the Petition. It is submitted
that the Petitioner was aware of the tender conditions. It is
submitted that the bank guarantee is not in terms of the
conditions stipulated and hence the Petitioner is not entitled
to any relief prayed for in this Petition. It is submitted that the
Petitioner who claims to be well versed in executing the works
of the Respondent ought to have been careful and ought not
to be permitted to raise the plea of prejudice. She submits
that this is a mandatory condition which can not be rectified.
9. Heard learned counsel for the parties. In our
opinion, for the reasons stated hereafter the present Petition
deserves to be allowed. No doubt it is the case of the
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Petitioner that along with the bid document, the Petitioner had
submitted a bank guarantee towards bid security which was
valid upto 30th July 2025. Having realised that the validity
period was not in accordance with what is provided by the
tender conditions, the Petitioner on 24th April 2025 submitted
the amended bank guarantee for Rs.64,69,600/- with a
revised expiry date of 30th September 2025. In our opinion,
no prejudice would be caused if the Respondent is required to
take into consideration the amended bank guarantee
submitted by the Petitioner. While submitting the bank
guarantee towards the security, the Petitioner interpreted the
validity of the bank guarantee to mean 90 days from the
closing date of the tender i.e. 3rd June 2025. It is only on the
rejection of the bids in other tenders having similar
requirement, the Petitioner learnt that the Respondent's
interpretation is that 90 days is the validity of the tender from
the date of closing i.e. 4th March 2025 and therefore, the
requirement of the subject tender is to have the bank
guarantee kept alive for a period of 90 days after 3 rd June
2025 (i.e. 90 days beyond the period of 90 days from closing
of the tender).
910.wpl.14272-2025.odt
10. Clause 3(iv) reads thus :-
"The Tender Security shall remain valid for a period
of 90 days beyond the validity period for the Tender."
11. The Supreme Court in West Bengal State
Electricity Board vs. Patel Engineering Co. Ltd. & Ors. 1
in paragraph 26 has quoted paragraph 84 of the American
Jurisprudence (2nd Edition, Volume 64, page 944) which reads
that "As a general rule, equitable relief will be granted to a
bidder for a public contract where he has made a material
mistake of fact in the bid which he submitted, and where, upon
the discovery of that mistake, he acts promptly in informing
the public authorities and requesting withdrawal of his bid or
opportunity to rectify his mistake particularly where he does so
before any formal contract is entered into."
12. We therefore find force in the submission of Mr.
Gautam Ankhad, learned Senior Advocate that no prejudice
would be caused to the Respondent if the amended bank
guarantee as submitted by the Petitioner is accepted and the
Petitioner is allowed to correct the mistake which is bonafide.
The Petitioner carried a wrong impression as regards the
1 (2001) 2 SCC 451
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interpretation of the relevant provision and immediately on
realising the mistake, the Petitioner has taken steps to correct
the mistake. In such circumstances, we have no hesitation in
allowing the Petition in terms of prayer clause (a) which reads
thus :-
"(a) that this Hon'ble Court be pleased to issue a
writ of mandamus or any other similar writ or order
and direct the Respondent to consider the amended
bank guarantee submitted by the Petitioner on 24 th
April 2025."
13. The Writ Petition is disposed of.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Designation: PA To Honourable Judge
Date: 20/05/2025 13:06:36
