Delhi High Court
Lms Technologies Pvt Ltd vs Uoi & Ors on 6 November, 2009
Author: Badar Durrez Ahmed
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.11.2009
+ W.P.(C) 7763/2009
LMS TECHNOLOGIES PVT LTD ..... Petitioner
-versus-
UOI & ORS ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr M.A. Niyazi with Mr Manish Kumar,
Advocates
For the Respondent : Ms Jyoti Singh, Advocate for respondent
nos.1 to 3.
Mr Pramod B. Agarwala with Mr Abhishek
Baid, Advocates for respondent no.4.
Mr R.V. Sinha with Mr A.S. Singh,
Advocates for respondent No.5.
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in Digest?
BADAR DURREZ AHMED, J (ORAL)
1. We have heard the counsel for the parties at length spreading over
several dates. We have also examined the technical aspects of the matter as
presented by the respective counsel for the parties and their technical
experts. After long deliberations, the learned counsel for the petitioner,
upon instructions from his client, who is also present in court, does not press
for the prayer seeking the award of the tender to the petitioner. As an
incident thereof, the quashing of the award of the tender to the respondent
no. 4 also does not arise for consideration of this court. However, the
learned counsel for the petitioner lays stress and emphasis on his third prayer
which is for directing the respondent no. 5 - Central Vigilance Commission
to furnish and submit a time bound investigation report with regard to the
tender in question.
2. The learned counsel for the petitioner drew our attention to our order
dated 29.07.2009 passed in CM No. 9273/2009 in this writ petition wherein
we had directed that since the document filed by the respondent nos. 2 and 3
and the rejoinder filed by the petitioner to the counter affidavit of the
respondent nos. 2 and 3 are already on record, the respondent no. 5 would
also look into these documents at the time of giving the final report.
3. Thereafter, the report of the respondent no. 5 has been placed on
record and the same has been filed in the form of an affidavit of one Ms
Shalini Darbari working as Director in Central Vigilance Commission. The
affidavit is dated 06.10.2009. On going through the final report, we find that
the learned counsel for the petitioner is right in his submission that the
question of intercession which is to be found in Article 23.1 of the Defence
Procurement Manual - 2006 has not been examined in any detail. The said
Article 23.1 reads as under:-
"23.1 The SELLER confirms and declares to the BUYER
that the seller is the original manufacturer of the stores referred to in
this contract and has not engaged any individual or firm, whether
Indian or foreign whatsoever, to intercede, facilitate or in any way to
recommend to the Government of India or any of its functionaries,
whether officially or unofficially, to the award of the contract to the
SELLER; nor has any amount been paid, promised or intended to be
paid to any such individual or firm in respect of any such
intercession, facilitation or recommendation. The SELLER agrees
that if it is established at any time to the satisfaction of the BUYER
that the present declaration is in any way incorrect or if at a later
stage it is discovered by the Buyer that the SELLER has engaged
any such individual/firm, and paid or intended to pay any amount,
gift, reward, fees, commission or consideration to such person, party,
firm or institution, whether before or after the signing of this
contract, the SELLER will be liable to refund that amount to the
BUYER. The Seller will also be debarred from entering into any
supply Contract with the Government of India for a minimum period
of five years. The BUYER will also have a right to consider
cancellation of the Contract either wholly or in part, without any
entitlement or compensation to the Seller who shall in such event be
liable to refund all payments made by the BUYER in terms of the
Contract alongwith interest at the rate of 2% per annum above
LIBOR rate. The BUYER will also have the right to recover any
such amount from any contracts concluded earlier with the
Government of India."
4. According to the learned counsel for the petitioner, the GPS/DGPS
receiver, which is part of the subject tender, was manufactured by a
company named Hemisphere based in Canada. The said equipment was
supplied to a company named Leica Geosystems in Switzerland and Leica
Geosystems supplied the same to the respondent no. 4 - Elcome
Technologies Pvt Ltd, which, in turn, participated in the global tender and
ultimately was awarded the contract and supplied the equipment to the
respondent no. 2. According to the learned counsel for the petitioner, the
intervention of Leica Geosystems in the supply chain would amount to
intercession and would attract the provisions of Article 23.1 of the Defence
Procurement Manual - 2006. This aspect of the matter, in our view, requires
re-consideration by the CVC. Therefore, while we are not entertaining the
petition with regard to the first two reliefs of quashing the tender and
awarding the same to the petitioner, we are hereby issuing a direction to the
respondent no. 5 to examine the award of the tender to the respondent no. 4
from the standpoint of Article 23.1 of the Defence Procurement Manual -
2006.
With these directions, the writ petition stands disposed of.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
NOVEMBER 06, 2009
kks
