Lifetree Convergence Limited vs Mahanagar Telephone Nigvam Ltd.
2001 Latest Caselaw 1591 Del

JUDGMENT

Mukul Mudgal, J.

1. The main dispute in the petition which is required to be considered for the purposes of this interim application is the interpretation of Clause 3 and the eligibility of Zip Infotech who are the competing supplier of Software to respondent No. 2 who is the prime bidder of a Notice Inviting Tender issued by Respondent No. 1 M.T.N.L.

2. The relevant portion of Clause 3 of Notice Inviting Tender (hereinafter referred to as 'the NIT') reads as follows:

"i. The bidder should have authorization from the manufacturer for supply of all items related to Recharge Card Management System (RCMS) & Customer Care Management Systems (CCMS) as well as future maintenance support.

ii The bidder should have experience of setting up one such system for handling minimum 1,00,000 customers along with on line support. The relevant documents in support shall be furnished as per clause 13, Section 11 of tender document.

iii Bidder should have turn over of Rs.100 crore for the last two years."

3. A joint bid was made by Respondent No. 2 with consent of the petitioner and Respondent No. 5 who had entered into a Memorandum of Understanding by which Respondent No. 5 was to organize front ending of the bid through Respondent No. 2. The grievance of the petitioner raised in the petition is because Respondent No. 2 submitted two bids, one involving the joint venture of petitioner and Respondent No. 5 and the other with the technical support of Zip Infotech Ltd. and since only one bank guarantee was submitted by Respondent No. 2 on a query made by Respondent No. 1, Respondent No. 2 opted for the support system of Zip Infotech Ltd. by jettisoning the petitioner's participation.

4. The plea of the counsel for the petitioner is that the above clause has to be viewed in the context of the Software being used for large metropolises such as Mumbai & Delhi and read with other clauses of NIT made the requirement of running of a software for more than one lac subscribers imperative. Thus he submitted that the capacity had to be coupled with experience for 1 lacs subscribers which was only possessed by the petitioner in view of its wide experience of running 2 circles, i.e., Spice Telecom Punjab with a total subscriber base of 1,50,000 and the other Spice Telecom Karnataka with a total subscriber base of 1,30,000. It was averred by the petitioner that Zip Infotech did not possess the requisite experience of running a circle of one lac subscribers.

5. On behalf of the respondents, two preliminary pleas of locus standi qua petitioner & maintainability qua Respondent No. 5 were also raised. The respondent No. 5 was said to have 60% shares owned by a foreign company and consequently not amenable to writ jurisdiction.

6. In so far as the preliminary plea of respondent No. 5 is concerned, it is devoid of any merit as the preliminary clause of the agreement between the petitioner and respondent No. 5 reads as follows:

And whereas TBL and LCL are interested in joint bidding with Telecommunications Consultants India Ltd. (TCIL, TBL's parent organization) as the prime bidder against tender no MTNL /20-80(307)/2001-MM/RCMS & CCMS dated 19/01/2001 flated by MTNL for procurement of requisite hardware and development of software for rechargeable card management system and Customer Care Management System TCIL has accorded its consent for the same and in this context TBL and LCL have desired to enter into this MOU on terms and conditions hereinafter appearing.

The respondent No. 5 being a subsidary of respondent No. 2, which is undeniable amenable to Article 226 the amenability of respondent No. 5 to the writ petition can not be disputed. This plea is accordingly rejected.

7. It is further submitted that the petitioner's claim and grievance, if any, was only against respondent Nos. 2 & 5 and the tender floated by Respondent No. 1 MTNL cannot be impugned in this petition. This plea of respondent No. 5 is based on the fact that the petitioner itself is not a bidder and only provider of support services to respondent No. 2, TCIL which had given two options. The writ petition does not lie against respondent No. 2 as the petitioner was not a bidder. Clause 5.1, at page 29 of the petition, reads as follows

5.1 In the event that the successful bidder is a joint venture company formed of two or more companies, the Purchaser will require that the parties to the joint venture accept jointly and severally, all liabilities for all obligations under the contract.

8. Hence as per this clause the petitioner being a party to the joint venture is jointly and severally liabile for all obligations under the contract and thus cannot be denied the locus of maintaining the writ petition against, inter alia, respondent No. 2.

9. The petitioner's plea is that since the tender's requirement was the requisite experience of setting up of one such system for handling one lac customers along with on line support, therefore, not only was the experience of setting up of one such system for 1 lac customers necessary, but such a system should have actually handled one lac customers which experience Zip Infotech did not have. It is further submitted by the learned counsel for the petitioner that mere setting up of one such system does not give the experience of handling such 1 lac customers Along with on line support. It is also submitted that even the certificate provided by Zip Infotech reads as follows:

.. "The Intouch system is currently configured for 100,000 subscribers. Our current customers base requirements comprises of 25,000 Prepaid and 50,000 voicemail subscribers."

10. The petitioner's plea is that even this does not meet the qualifications set out in the notice of NIT. The respondent No. 1's plea is that according to their construction of NIT Zip Infotech qualifications set out above did satisfy the conditions in the NIT which only required the experience of setting up one such system for handling minimum one lac customers Along with on line support. It is submitted that the requirement is for experience of setting up one such system which is capable of handling one lac customers with on line support and the other requirement sought to be read in the NIT by the petitioner that apart from setting up such a system there must be minimum one lac customers is the correct interpretation.

11. I am prima facie of the view the construction placed upon the NIT by both the petitioner and the respondent are possible constructions. However since the respondent No. 2 has sought to construe the clause by treating the requirement to be only that of setting up of such a system capable of handling one lac customers, this construction is not so arbitrary or unreasonable so as to invite interference under Article 226 of the Constitution of India. The legal position in this resect is clearly stated in Tata Cellar v. Union of India , it has been held that interference is not warranted unless the decision is such which no reasonable person on proper application of mind could take and whether the wrong is of such a nature as to require intervention. In this view of the matter, I am satisfied that prima facie the petitioner has not been able to satisfy the Court that an interim order sought by the petitioner deserves to be granted. Accordingly the application for interim relief is rejected. However, it is clarified that the award of the tender will be subject to the result of the writ petition.

CW 4130/2001.

12. Rule.