Chattisgarh High Court
M/S Kanchan Creation Ltd vs Chhattisgarh State Power ... on 18 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 4670 of 2021
M/s Kanchan Creation Ltd. A Company Registered Under The Provisions
Companies Act 1956, Having Its Registered Office At 30 Jail Road, Indore
M.P. Through Its Authorized Signatory Representative Namely Shri Mubarik
Khan Ghouri, S/o Late Mahammad Khan Aged About 78 Years, R/o Nurani
Chowk, Raja Talab, Raipur, District Raipur Chhattisgarh
---- Petitioner
Versus
1. Chhattisgarh State Power Transmission Company Limited
Chhattisgarh State Power Transmission Company Limited A
Government Of Chhattisgarh Undertaking, Through Its Managing
Director, Chhattisgrh State Power Transmission Company Limited,
Vidyut Sewa Bhawan, Daganiya Raipur, District Raipur Chhattisgarh
2. Chief Engineer, Chhattisgarh State Power Transmission Company
Limited, Shed No. 4 Daganiya Raipur, District Raipur Chhattisgarh
3. M/s Effective Enterpries, A Partnership Firm Registered Under The
Partnership Act, 1932 Having Its Registered Office At Shop No. 131 E
Market Sector - 6 Bhilai District Durg Chhhattisgrh Through Its One Of
The Partner Namely Vijay Ashish Sharma S/o M.D. Sharma Aged
About 53 Years, R/o Quarter No. 5-A Street No. 38 Sector 4 Bhilai
District Durg Chhattisgrh
4. Bank Of Baroda, Through Its Branch Manager, Bank Of Baroda,
Choubey Coloney Branch, Raipur District Raipur Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System)
For Petitioner : Mr. Manoj Paranjpe, Advocate
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Goutam Bhaduri, Judge
Order on Board
Per Arup Kumar Goswami, Chief Justice
18.11.2021
Heard Mr. Manoj Paranjpe, learned counsel for the petitioner.
2. Chhattisgarh State Power Transmission Company Limited issued a
Tender No.S/S-O&M-12/21-24/72 dated 30.04.2021 on the subject of
"Operation (including cleaning, watch and ward) Work of 31 Nos.220/132 KV
Sub-stations of CG State". The last date and time of sale of tender
documents was fixed on 29.05.2021 at 17.00 Hrs. The last date and time of
submission of tender was fixed on 31.05.2021 at 11.30 Hrs and the last date
and time of opening of tender (techno-commercial) was fixed on 29.05.2021
at 17.00 Hrs.
3. The petitioner along with three others participated in the aforesaid
tender process. While the petitioner was declared as L-3 bidder, the
respondent No.3 was declared as L-1 bidder and one M/s. Jai Enterprises
was declared as L-2 bidder.
4. Clause 1.17 of the tender is on the subject of "Criteria for Placement of
Order" and it provides that the tendering authority reserves the right to
distribute entire tendered quantity amongst 03 No. (maximum) bidders as per
rules of the tendering authority. The distribution ratio is also indicated therein
in a tabular form. It envisages distribution of work from L-1 to L-3 bidder by
counter offered rate of L-1 bidder. In case, any bidder refuses to accept the
counter offered rate, then next rank bidder, will be given chance to accept the
quantity at the counter offered rate of L-1 bidder. In case, L-2 and L-3 bidders
refuse to accept the offer, then the complete quantity will be allotted to L-1
bidder. The quantity distribution to various bidders standing at different
position would be 60% and 40% in respect of L-1 bidder and L-2 bidder,
respectively, in case there are two bidders and 50%, 30% and 20% in
respect of L-1 bidder, L-2 bidder and L-3 bidder, respectively, in case there
are three bidders. There is a note appended to Clause 1.17, but for the
purpose of this case, it is not relevant and therefore, it is not considered
necessary to deal with the stipulations put-forth in the note.
5. Clause 1.19 of the tender is on the subject of "LoI / LoA" and it
provides as follows :
"1.19 LoI / LoA :- Accepted L-1 rate shall be counter offer
to bidders standing up to L-3 position, accordingly
LoI/LoA shall be issued to L-2 and L-3 bidders. The
bidder shall submit acceptance of LoI within 07 days
from its issuance along with one copy of LoI signed by
bidder. In case of acceptance of LoIs is not received in
time, the allotted quantity shall be distributed to the other
bidder as per the distribution ratio mentioned in the table
above."
6. Clause 1.20 of the tender is on the subject of "Agreement" and it
provides as follows :
"1.20 Agreement :- The contractor will execute an
agreement on non-judicial stamp paper worth Rs.300/-
with revenue stamp of Rs.01 (one) affixed on it, as per
the Annexure-I enclosed with this tender document. The
cost of stamp paper etc. shall be borne by the
contractor. The agreement shall be executed within 07
days from the date of issue of detailed order for
execution of contract."
7. The petitioner being L-3 bidder, having accepted offered rate of L-1
bidder, was allotted Letter of Intent ('LoI') by the respondent No.2 on
24.09.2021 and after acceptance of LoI, Letter of Acceptance ('LoA') was
issued to it on 30.09.2021.
8. By the said LoI dated 24.09.2021, the petitioner was requested to
comply with the Security Deposit clause of tender within 30 days (i.e. up to
23.10.2021) of issuance of LoI, further indicating that the amount of Security
Deposit is Rs.42,47,900/-, being 10% of contract value. It was also indicated
that if the petitioner fails to submit Security Deposit / Bank Guarantee within
30 days (i.e. up to 23.10.2021) from the date of issuance of the letter dated
24.09.2021, the work that may be allotted to the petitioner might be
distributed among other bidders as per tender clause.
9. Mr. Manoj Pranajpe, learned counsel appearing for the petitioner
submits that in order to comply with the requirement of making deposit of
Security Deposit, petitioner had taken steps for obtaining Bank Guarantee,
but for reasons beyond his control, formalities for obtaining the Bank
Guarantee could not be completed due to technical reasons and as such, by
letter dated 29.10.2021, the petitioner had informed the Chief Engineer, i.e.,
respondent No. 2 that the Bank Gurantee will be submitted by 20.11.2021.
Even the Bank had issued a letter dated 29.10.2021 informing the
respondent No. 2, that issuance of Bank Gurantee will take 10-15 days
more, but without responding to the said request, the work order was issued
in favour of respondent No.3 on 29.10.2021 for the balance work in addition
to the work which was earlier allotted to him being 50% of total 31 Nos. of
220/132 KV Sub-stations. Learned counsel has drawn the attention of the
Court to Clause 1.21 of the tender on the subject of "Security Deposit" to
contend that the Bank Guarantee is to be submitted normally within 30 days
from the date of issue of LoI / LoA and therefore, when the petitioner had
requested for extension of time, the respondent authorities were obligated to
consider the request of the petitioner for extension of period of time for
furnishing Bank Guarantee and they having not done so, allotment of work
meant for the petitioner in favour of respondent No.3 is not sustainable in
law.
10. By an order dated 29.10.2021, respondent No.3 has been alloted 12
Nos. of 220/132 KV Sub-stations in addition to an order dated 29.10.2021,
which Mr. Paranjpe submits was towards allotted quantity of the respondent
No. 3 being the L-1 bidder. 50% of 31 Sub-stations works out to be 15 or 16.
The total Sub-stations allotted to respondent No.3 does not add up to 31 as
the two orders dated 29.10.2021 add up to only 27 or 28. Be that as it may.
11. To appreciate the contention advanced by Mr. Paranjpe, it would be
appropriate to quote Clause 1.21 in its entirety :
"1.21 Security Deposit :- The contractor shall furnish
security deposit either in the form of DD drawn in favour
of Manager (RAO-HQ), CSPTCL, Raipur or in the form of
Bank Guarantee issued by Nationalized/Scheduled Bank
for faithful performance of the order and to cover the
contract period. The contractor shall be required to pay
security deposit for an amount of 10% of contract value
(including GST/Cess etc, if any).
The bank guarantee shall be submitted normally within
30 days from the date of issue of LoI / LoA and shall be
kept valid for complete contract period including 06
Month claim period. The bank guarantee shall be
submitted on stamp paper worth Rs.250/- or as per the
prevailing legal requirements/ any other amount as per
the C.G. Stamp Duty Act. No interest shall be paid by
CSPTCL on the security deposit. In case of non-
fulfillment of contractual obligations by the supplier the
security deposit shall be forfeited.
If bidder fails to submit Security Deposit/Bank Guarantee
within 30 days from the date of issue of LoA/LoI, the
work allotted to them may be distributed among other
bidders as per company's rule. In the event of extension
of completion date, the validity of the bank guarantee
shall also be suitably extended.
Note : 1) Without acceptance of security deposit by
order placing authority, no payment will be released to
the contractor.
However, it shall be the sole responsibility of the
bidder to ensure the payment to their staff within 07
days after the end of each calendar month.
2) The security deposit shall be released only after
satisfactory completion of the work duly certified by the
concerned OIC."
12. According to the own case of the petitioner, the request was made to
the respondent No.2 to extend the period of time for furnishing Bank
Guarantee on 29.10.2021. The LoI to which reference is made in the earlier
part of the judgment, goes to show that the petitioner was required to make
Security Deposit on or before 23.10.2021. Therefore, the request was
beyond the prescribed period of time. That apart, it is not that the bidder was
required to furnish only Bank Guarantee as it is made explicitly clear in
Clause 1.21 that the contractor shall furnish Security Deposit either in the
form of Demand Draft or in the form of Bank Guarantee. If for any reason,
there was any difficulty in obtaining the Bank Guarantee, nothing prevented
the petitioner to furnish Demand Draft within the stipulated period of time. No
doubt, it is also indicated that the Bank Guarantee is normally to be
submitted within a period of 30 days from the date of issue of LoI / LoA. But it
is to be noticed that it was also indicated that if the bidder fails to submit
Security Deposit/Bank Guarantee within 30 days from the date of issue of
LoI / LoA, the work allotted to them might be distributed among other bidders
as per rules of the tendering authority. Therefore, if a bidder does not submit
the Bank Guarantee within a period of 30 days (in the present case, 30 days
from issuance of LoI), he runs the risk of his work being allotted to others at
the discretion of the tendering authority. In the instant case, the petitioner
had accepted the LoI wherein Security Deposit was directed to be furnished
within 30 days.
13. In view of the above discussion, we are of the considered opinion that
the respondents No.1 and 2 did not act arbitrarily or illegally in allotting the
work of the petitioner in favour of the L-1 bidder. Accordingly, the writ petition
is dismissed at the motion stage in limine. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Goutam Bhaduri)
Chief Justice Judge
Anu
