Private Limited & Anr vs Union Of India & Ors
2022 Latest Caselaw 6419 Cal

   Ct. 05
Item No.07
08.09.2022
(Suvendu)



                          WPA 20114 of 2022


                   Techma Engineering Enterprise
                       Private Limited & Anr.
                                Vs.
                        Union of India & Ors.


                     Mr. Jishnu Chowdhury
                     Mr. Rudrajit Sarkar
                     Mr. Assish Chowdhury
                     Mr. Rabindra Kumar Mitra
                     Ms. A. Basu
                     Ms. Puja Tripathy
                                      ............for the petitioners

                     Mr. Ashok Bhaumik
                                .......for the respondent Nos. 1-3

The affidavit of service is taken on record.

The petitioners complain of a unilateral

change of the tender terms by the Easter Railways

to the detriment of the petitioners. The petitioners

seek a stay of the further process of the said

tender which involves manufacturing and supply

of metal liners to Eastern Railways.

According to learned counsel appearing

for the petitioners, the tender terms incorporated

in the Notice Inviting Tender dated 20.10.2021

was the basis on which the petitioners agreed to

participate in the tender on 25.11.2021. The

Letter of Acceptance of 17.03.2022, however,

changed at least two Clauses of the Special and

General Clauses of the Contract which were a part

of the NIT dated 20.10.2021. Of the two Clauses,

the petitioners are particularly aggrieved by Clause

5(i) which introduces the commencement of

delivery period within three months of issue of the

contract. Counsel submits that the petitioners

may not have participated in the tender had the

petitioners been made aware of the changes which

were inserted later.

Learned counsel appearing for the

respondent Eastern Railways submits that the

petitioners have come to the Court at a belated

stage and the petitioners have failed to supply the

liners despite six months having elapsed from the

issuance of the Letter of Acceptance.

Upon consideration of the documents

placed before the Court on behalf of the parties, it

is apparent that under Clause 5(i), an additional

term was introduced in the Letter of Acceptance

dated 17.03.2022, which was not part of the NIT.

A tender is an invitation to offer, which, in this

case, was made on 20.10.2021 persuading the

petitioners to participate in the tender. The

petitioners' participation may be seen as accepting

an offer which was altered on 17.03.2022 by way

of the Letter of Acceptance in the form of a

counter-offer. The change in the Letter of

Acceptance amounts to a significant alteration

amounting to changing the rules of the game after

the petitioners entered the arena.

Any unilateral change made to the

contractual terms by one of the parties to the

contract mounts to destruction of the contract and

cannot be insisted upon unless the other party

agrees to the alteration. Such unilateral changes

subsequent to acceptance of the offer has a direct

bearing on the binding nature of the contract.

Refer: Suresh Kumar Wadhwa Vs. State of Madhya

Pradesh & Ors., (2017) 16 SCC 757 and Moolji

Jaith & Co. Vs. Seth Kirodimal, AIR 1961 Ker 21.

The judgment in Tej Prakash Pathak & Ors. Vs.

Rajasthan High Court & Ors., (2013) 4 SCC 540,

supports the principle that a change in the rules of

game either midstream or after the game is played

cannot be done.

It also appears from the documents that

other Railways / respondents before the Court

have started issuing purchase orders on the

petitioners based on the altered terms in the Letter

of Acceptance.

The petitioners are hence entitled to relief.

The objection taken on behalf of the

Railways of the petitioners' not supplying the

goods is without basis since the petitioners have

written to the Railways from April to August, 2022

recording their objections to the additions of terms

in the Letter of Acceptance.

This Court is of the considered view that

until the respondents produce their defence by

way of affidavits, the Eastern Railways as well as

the other respondents should be restrained from

proceeding any further with the tender or the

purchase orders issued on the petitioners.

Let affidavit-in-opposition be filed within

one week after reopening of the Court in

November, 2022, as prayed for; Reply within one

week thereafter.

List this matter on 22nd November, 2022.

Urgent photostat certified copy of this

order, if applied for, be given to the parties on

usual undertakings.

(Moushumi Bhattacharya, J.)