Calcutta High Court
Blue Max Enterprise vs Union Of India And Others on 18 July, 2023
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Original Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPO No. 2085 of 2022
Blue Max Enterprise
Vs.
Union of India and others
For the petitioner : Mr. Mukteswar Maity, Adv.
Ms. Nupur Chaudhuri, Adv.
For the respondents : Mr. D.N. Ray, Adv.
Mr. Sourav Halder, Adv.
Mr. Rajesh Kr. Shah, Adv.
Hearing concluded on : 12.07.2023
Judgment on : 18.07.2023
The Court:-
1. The petitioner was successful in a tender called by the Railway
Authorities and supplied certain materials pursuant thereto.
2. Learned counsel for the petitioner argues that, at the time of
supplying such materials, a guarantee of six months was given by the
petitioner. The manufacturers‟ guarantee for such period was also
annexed and uploaded, along with the bid document, and was
accepted by the respondent-Authorities.
3. However, after the supply and acceptance of the same as well as
payment of the dues of the petitioner, the respondent-Authorities
made a money claim from the petitioner on the allegation that the
samples which were tested were found defective.
4. The petitioner argues that the sample testing was done by the Railway
Authorities, admittedly, after the guarantee period of six months from
supply. As such, it is argued that the claim of the respondent-
Authorities is required to be set aside.
5. Learned counsel appearing for the respondent-Authorities places
reliance on the relevant clause of the General Conditions of Contract
(GCC), which provides for a general warranty/guarantee of 30 months
after delivery.
6. It is submitted that the said clause overrides any document which
might have been submitted by the petitioner. That apart, it is argued
that the respondent-Authorities accepted the bid documents without
agreeing in any manner to the guarantee being limited to six months.
7. A perusal of the documents annexed to the pleadings indicates that
the petitioner‟s bid documents included a mention to the effect that
the validity of 30 days SVC was applicable and the manufacturer‟s
test-cum-guarantee certificate for six months would accompany
supply.
8. Such enumeration finds place under the caption "Deviation Details",
below the heading „Commercial Deviation‟ of the relevant document
annexed at page 29 of the writ petition dated May 2, 2020.
9. However, in the very next page, there is a clause in the bid document
whereby the petitioner/bidder accepts that the petitioner had not
quoted any deviation in any uploaded document and the purchaser
may, at his discretion, ignore any such deviation, if quoted, while
issuing the contract.
10. Hence, from a composite reading of the said documents, it is seen that
that although the petitioner had produced a certificate of guarantee
for six months issued by the manufacturer of the goods, there was no
counter-offer made by the petitioner to the effect that the guarantee as
stipulated in the General Conditions of Contract would be curtailed
and limited to six months. Hence, there arises no question of
acceptance by the respondent-Authorities of any such counter-offer.
11. In the Advance Acceptance document dated July 3, 2019, issued by
the respondent-Authorities, there is nothing to indicate that the
stipulated guarantee period as per the GCC was agreed to be deviated
from in any manner.
12. In fact, in "Other terms and Conditions", it was mentioned that
standard governing conditions would be the IRS conditions of contract
and that the contract shall be governed by the latest version of IRS
conditions of contract and all other terms and conditions incorporated
in the tender documents.
13. Thus, there is nothing on record to indicate that there was any
deviation from the General Conditions of the Contract or the tender
document.
14. The General Conditions of the Contract was admittedly a part of the
contract between the parties, even in terms of the documents annexed
by the petitioner. Clause 3202 thereof specifies that the contractor
also guarantees that the goods/stores/articles would continue to
conform to the description and quality as aforesaid, for a period of 30
months after their delivery ... and the warranty shall survive
notwithstanding that fact that the goods/stores/articles may have
been inspected, accepted and payment thereof made by the purchaser.
15. Although the sample tests in the present case were taken beyond six
months, such tests took place well within the warranty period of 30
months, as stipulated in Clause 3202. Hence, there does not arise
any occasion on the part of the respondent Authorities to have
committed any breach of contract in undertaking such sample tests
within the guarantee period as stipulated in the GCC.
16. Hence, the impugned communications dated October 11, 2021 and
February 23, 2022, made by the respondent-Authorities, which allege
that the sample fails in breaking strength test as per specification
mentioned in PO, cannot be faulted. In such view of the matter, the
respondents have claimed an amount of Rs.1,52,125/- or equivalent,
paid against supply of 601kgs quantity from any outstanding bill of
the petitioner. In view of the terms of the contract as discussed above,
no arbitrariness, mala fides or illegality can be attributed to such
claim, to necessitate interference in the writ jurisdiction.
17. Accordingly, WPO No.2085 of 2022 is dismissed on contest without
any order as to costs.
18. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
