Sh. Ashish Wadia vs M.C.D. And Anr.
2002 Latest Caselaw 1773 Del

JUDGMENT

S. Mukerjee, J.

IAs No. 12988/2000 & 8422/02

1. These are two applications by plaintiff ad-interim injunction in a suit for permanent and mandatory injunction.

(MCD) is allotting parking sites all over Delhi on license basis. The present suit pertains to one of such parking site known as "UNDERGROUND PARKING AT ASAF ALI ROAD CAR PARKING".

3. The defendant No. 1 on 7th October, 2000 issued a NIT (notice inviting tenders) for giving the above said car-parking, on license, for a period of one year. The said notice was published in various papers and it contained the terms an conditions to be complied with, at the time of submission of tender.

4. The extract from terms and conditions are as under :-

"Tenderer should have a permanent tax account number (PAN) and shall submit certified copies of latest income tax clearance certificate Along with the tender form. The tendering party must also submit (i) details of bank account with documentary evidence regarding the financial position, previous experience and ability to execute the contract work, (ii) proof of residence (photo copy of ration card/ electoral identity card duly attested by a Gazetted officer) and a recent pass port size photo graph of the person signing the application form. Tenders not accompanied by those documents will be rejected outright. Any contractor/tenderers who has not cleared any past dues, if any, of Remunerative Project Cell or has been blacklisted need not apply against this tender and their tenders, if submitted, shall be rejected without assigning any reasons."

5. The last date for submission of tenders is shown as 24th October, 2000 by 10 am, and date and time for opening of tenders, was stipulated as 24th October, 2000 at 11.00 am.

6. The plaintiff's case is that he submitted his tender, and duly complied with all the terms and conditions of the same.

7. The plaintiff offered a license fee of Rs. 8,55,555.00 per month. Since plaintiff was the highest and was meeting all the requirements, he ought to have been straightaway granted the tender.

8. Instead of so awarding the tender to the plaintiff, who was eligible in all respects and had given the highest offer.

9. It is submitted that by a conspiracy the defendant No. 2 who was not even a genuine purchaser of tender form, and was hopelessly ineligible on several accounts, has been set up just to defeat the due rights and entitlement of the plaintiff.

10. The defendant No. 2 was thereby shown as having submitted his tender quoting a license fee of Rs. 8,56,886.00 per month, thus generating a small difference of Rs. 1331/- over the license fee quoted by plaintiff by manipulation and with a view to avoid tender to the defendant No. 2, by this manipulation.

11. As per the submissions of the plaintiff, one Shri Sache Singh who is having a proprietorship firm under the name and style of M/s. SS Company, had been blacklisted by the defendant No. 1 in 1999.

12. The defendant No. 2 firm, it is alleged, has been floated just on the eve of the tender process by the said Shir Sache Singh. It has three partners viz Shri Gajender Singh, Shri Pramod Kumar and Shri Krishan, out of whom Shri Gajender Singh is alleged to be the brother-in-law of Shri Sache Singh, (brother of wife of Shri Sache Singh), Shri Pramod Kumar was and still working as driver of Shri Sache Singh while the third partner viz Shri Krishan, is stated to be first cousin brother of Shri Sache Singh.

13. The defendant No. 2, in the written statement, has admitted that Shri Gajender Singh is the brother-in-law and Shri Krishan is also in his relation. It has been only denied that Shri Pramod Kumar is/was driver of Shri Sache Singh.

14. The defendant No. 2 was shown as the highest bidder and a provisional offer/letter was issued to defendant No. 2, by MCD on 17.11.2000.

15. Aggrieved by the alleged manipulated denial of plaintiff's just right and entitlement and one the other hand issuance of provisional offer of allotment in favor of defendant No. 2 who was manifestly ineligible, the plaintiff has come to Court by filing the present suit for restraining the defendant No. 1 from accepting the tender of defendant No. 2, and also praying for a mandatory injunction for directing the defendant No. 1 to accept the tender of plaintiff.

16. It is vehemently contended that the tender submitted by the defendant No. 2, was not complete and thus could not have been considered, and rather ought to have been rejected summarily.

17. The plaintiff contends this on the following accounts :-

(i) The defendant No. 2 was set up by a blacklisted person, in gross violation of condition No. 2 of terms and conditions of the tender. The source of funds for the security deposit originated from the defendant No. 2 and his bank;

(ii) In terms of conditions No. 3, the tenderer had to have a Permanent Account Number (PAN) and the tender had to be accompanied by a certified copy of latest Income Tax Clearance Certificate. This was also violated;

(iii) Every tenderer must have had a Permanent Bank Account, and Along with the tender the details of bank accounts with documentary evidence regarding financial position, and previous experience as well as ability to execute such type of contract, also to be submitted. This was violated;

(iv) The tenderer had to submit/disclose, in writing, all the relevant facts as to ownership of the concerned agency and constitution of business. In relation to a proprietory concern, the name of the proprietor, and for a firm, the names of all the partners with attested copy of the partnership deed was required to be submitted Along with the tender form. Furthermore, the partnership firm had to be registered. All this was given the go-by.

(v) The tender was dated 28.10.2000 and defendant No. 2 was just born on 23.10.2000 and could not have had any experience at all.

(vi) The bid of defendant No. 2 itself was introduced by manipulation. The defendant No. 2 was not even a purchaser of tender form and that is why the relevant register of MCD is missing and use of white fluid in the record exposes the manipulation.

(vii) A tender such as of defendant No. 2, which is not accompanied by mandatory documents, had to be rejected summarily.

18. The plaintiff contends that the defendant No. 2 failed to submit copy of the partnership deed Along with the tender and status of the persons concerned. The plaintiff further contends that the defendant No. 2 is not a registered partnership firm. The defendant No. 2 firm is also not an Income Tax assessed. It does not have any Permanent Account Number. This fact is admitted by the defendant No. 2, since defendant No. 2 in the tender form, has stated, that it has applied for the same. If defendant No. 2 was not an Income Tax assessed, it would not have the latest Income Tax Clearance certificate. Thus, there was no question of and defendant No. 2 submitting the certified copy of the same Along with the tender.

19. Defendant No. 2 did not give its financial status or documentary evidence regarding bank account and financial status. The defendant No. 2 also did not submit any evidence/documents of previous experience and ability to execute the contract work. It is also contended by plaintiff that these were the mandatory conditions of a valid tender and in the absence of the above details/documents, the tender ought to have been rejected summarily.

20. It has been pointed out during the hearing that Defendant No. 2 is also experience-wise and financially ineligible. A perusal of tax claims of Defendant No. 2 (i.e. Gajinder Singh) shows that it was having very low income and was paying very small amounts as tax. In fact in the Year 2000-2001, a Tax of Rs. 400/- is paid. For the earlier year it is Rs. 250/- which could neither inspire confidence about financial status or experience.

21. At this interim stage I don't propose to go into detailed scrutiny of rival contentions as the same may prejudice the respective parties.

22. However a reading of written statement of Defendant No. 2 does shows that it is admitted that the firm of Defendant No. 2 was born only on 23.10.2000. It is also admitted that firm of Defendant No. 2 was neither an Income Tax assessed nor was having PAN number. Even the firm was not having Income Tax Clearance Certificate. Therefore defendant No. 2 was manifestly ineligible.

23. It is contended by the plaintiff that because of pendency this case, the existing contractor of parking site whose Contract came to an end way back in Year 2000, is still continuing with the running of site. Therefore it would be in the interest of justice that the plaintiff who effectively is the highest bidder, should be allowed to run the parking site as an interim measure.

24. I have heard the rival contentions of parties and have gone through the records as well as pleading of parties. I am of the opinion that the specific allegations of plaintiff with respect to lack of eligibility essential qualifications of tenderer have not been denied by Defendant No. 2 nor countered by MCD.

25. The allegations of manipulation in favor of Defendant No. 2 by the officials of Defendant No. 1 also appears to be substantiated as the Register of Sale of tender forms has not been produced despite an order directing production of the same.

26. In view of the above it stands established that plaintiff has a strong prima facie case in his favor and also balance of convenience lies in favor of the plaintiff who is the highest bidder having good and established credentials. It is not the case of the MCD that all the offers were rejected as being below expectation. This Court also takes judicial notice of the aspect admitted by learned counsel for MCD during the hearing, that the general practice of MCD wherever the highest tenderer is found ineligible, is to award the tender to the next highest bidder.

27. In this case plaintiff is the highest bidder. Defendant No. 2 is prima facie ineligible on almost every count, and to say the least on the basis of the Income Tax records relied upon showing negligible payment of few hundred rupees per year only in the past two years, and also the firm having been incorporated on the same day, the position as regards experience and performance both is doubtful, quite apart from the souring of funds from the black-listed party (which point can even be left aside for the time being). The plaintiff being the highest bidder and the bid amount claimed for ward by MCD having difference of just a thousand rupees or so (which is prima facie manipulated/ ineligible), and keeping in view the cause of purity in award of public tenders I feel irreparable hardship will result in case the interim injunction is not granted.

28. In view of the above I direct that pending disposal of the suit which I propose to expedite by directions given separately today instead of the order of status quo granted vide order dated 15.12.2000, in relation to the provisional offer/letter in favor of Defendant No. 2 dated 17.11.2000 till the disposal of the suit. It is further directed by way of ad-interim order/ injunction that instead of the present/ existing contractor who has no manner of right at all, the plaintiff will be permitted to run the parking facility in question by a provisional letter of allotment on the same lines and for the same amount as had been issued in the case of defendant No. 2 pending final disposal of the suit. This provisional allotment letter may be issued within a period of one week from the date of this order, and the plaintiff be placed in possession of the parking lot within a further period of three days thereafter.

29. Applications stand disposal of. The observations made above are confined to the purpose of interim consideration only.