M/S Godrej Sara Lee Ltd. vs Union Of India & Ors.
2011 Latest Caselaw 6176 Del

*                  THE HIGH COURT OF DELHI AT NEW DELHI

+                                   REV. PET. 396 OF 2008
                                             In
                                   W.P.(C) 17267 OF 2006

%                                       Judgment Reserved on:29.09.2011
                                       Judgment delivered on: 16.12.2011


M/S GODREJ SARA LEE LTD.                                         ...PETITIONER
                                                 Through:   Mr.   A.N.   Haskar,  Sr.
                                                            Advocate with Mr. Rajeev
                                                            M.Roy, Mr. Ashish Kothari,
                                                            Advocates.
                                                 VERSUS

UNION OF INDIA & ORS.                                         ... RESPONDENTS

                                                 Through:   Mr.   Sumit      Pushkarana,
                                                            Advocate for R-1 to R-4
                                                            Mr. Akhil Sibal, Advocate
                                                            with Mr. Pradeep Chhindra,
                                                            Mr.     Amit       Aggarwal,
                                                            Advocates for R.5

CORAM :

         HON'BLE THE ACTING CHIEF JUSTICE
         HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


A.K. SIKRI,ACTING CHIEF JUSTICE:

1. The review petitioner had filed the aforesaid writ petition

No.17267/2006 raising various grievances on the basis of which

few reliefs were prayed for. Some of the demands of the

petitioner were accepted by the respondent no.1 on the basis of

which interim orders were passed and the same was incorporated

in the final judgment rendered on 11th April, 2008. The only

question that survived for consideration by the Court on which

arguments were advanced by the learned counsel for the parties

related to conditions stipulated in the addendum to the tender

inquiry/notice for the supply to be made in the year 2007-08 of

DEPA 20% spray and DEPA 50% lotion. The Division Bench of this

Court vide aforesaid judgment dated 11th April, 2008 repelled the

contention of the petitioner upholding the validity of the said

condition namely Transfer of Technology from DRDO as a

condition precedent for the manufacture being treated eligible for

making the required supply. By this review petition, the petitioner

seeks review of the aforesaid view taken by the Division Bench.

2. Few facts germane for aforesaid controversy may be

recapitulated here which can be distilled from the impugned

judgment review whereof sought by the petitioner.

The petitioner claims to be a leading manufacturer of hygiene

products and mosquito repellents which it sells not only in the

open market but even to the country's military and paramilitary

forces. In response to a tender inquiry issued by the Directorate

General of Supplies and Transport, New Delhi, the petitioner

submitted its tender for supply of what is called "Diethyl Phenyl

Acetaminde"(DEPA) in Isopropanol 50% (formulation) and was

found to be the lowest tenderer for the same. However, the

petitioner was not a registered manufacturer, only 20% of the

supplies was reserved for it. This was in keeping with the

provisions of para 3(c) of the terms and conditions regulating the

supply. . One of the grievances which the petitioner had made in

the writ petition was that although 20% of the supplies in terms of

the above stipulation had to be allotted to the petitioner, no

orders for making the supplies were being placed with it. It is this

entitlement of the petitioner to receive the orders to the extent of

20% of the supplies which was agreed to by the respondent and

on which statement dated 15th January, 2008 was made.

Therefore this aspect stood redressed.

3. Coming to the bone of contention, the conditions stipulated

in the Addendum dated 3rd November, 2006 issued to the tender

inquiry/notice, which are in palatable to the petitioner, are as

under: -

"For DEPA 20% Spray & DEPA 50% only: All tenderers desirous to participate in the tender process are required to get Transfer of Technology (TOT) from DRDE, DRDO, Jhansi Road, Gwalior. Tender Enquiry for these items

will only be issued to the firms on production of TOT to DDST, Delhi Area, Delhi Cantt. Those firms who have applied for TOT from the specified authorities, however, have not been able to obtain the TOT at the time of purchase of tenders would be issued with Provisional Tenders pending obtaining of TOT on production of documentary evidence in support of their claim. In the absence of TOT, their bids will be treated as technically invalid and the status of the firm on the date of tender opening will be treated as final. The prospective tenderers are advised to get in touch with DRDE, DRDO, Gwalior for obtaining TOT and specification for the above items. All other terms and conditions of the original tender notice shall remain unchanged"

Admittedly, the petitioner has not applied for or secured the

transfer of technology stipulated in the aforesaid addendum.

Because of this reason, the respondent no.1 treated it as ineligible

for submitting any tender for the supply required by the

Directorate General of Supplies and Transport for the year 2007-

08. This was the reason that the petitioner challenged the

aforesaid stipulations. This challenge was predicated on two

grounds. Firstly, it is contended that the patent granted in favour

of DRDE for DEPA 20% Spray and DEPA 50% Lotion had expired

by efflux of time thereby entitling every manufacturer to

undertake manufacture and marketing of the said product without

any legal impediment or compulsion of obtaining a Transfer of

Technology. Secondly, it is argued that there was nothing unique

about the formulation which the DRDE, DRDO claims to have

evolved so as to require a license/transfer of technology from it

before the manufacturers are permitted to submit their tenders.

The Division Bench, however, repelled this challenge holding that

the aforesaid condition was justified and valid. Perusal of the

judgment would show that the Court was of the view that validity

of the condition would depend upon whether the formulation was

in any way unique or at least different from one which the

petitioner is presently using for the manufacture of its product. If

the formulation which the DRDO had evolved was unique or at

least different from the formulations/specifications under which

the petitioner is manufacturing its product, it would be open to the

respondents to put such conditions namely the party offering to

make supply must possess the technology for the preparation of

the product and that justifies the transfer of technology so that

the supplier uses the same know-how and manufacture the

product which is needed by the respondents. It was more so

when the respondent had, at no stage declined to offer, the

transfer of technology to the petitioner. Thereafter, on facts of

the present case, the Court concluded that the petitioner was

manufacturing its product using different technology than the

technology developed by the DRDO. Discussion in this behalf goes

as under:-

"A perusal of the said compilation would show that the petitioner manufactures its products using three distinct components namely DEPA 20% v/v in IPA, Perfume & LPG in ratio of 74%, 1% and 25% respectively. A perusal of the work instructions for the product would reveal that while DEPA 20% is used with IPA and perfume, the IPA and perfume are of 100% purity. DEPA 20% used in the manufacture of the product is with 99.24% purity. The method of manufacture has also been set out in the form of a flow chart by the petitioner. This information when compared with the specifications and the formula which the DRDO has evolved would show that there is considerable difference not only in terms of the inputs that go into the preparation of the product which the army requires for its personnel but also the method by which the said product is prepared. We cannot, for obvious reasons, enlist the salient features that distinguish the two preparations in terms of the method of manufacture or the composition of the product. Any such exercise is bound to result in a public disclosure of what is, according to the DRDO, a secret formula evolved by it which it is ready to share with only those willing to approach it for the transfer of the technology. Suffice it to say that there is a significant difference in the formula which the petitioner, on the one hand and respondent/DRDO on the other, use for manufacture of their respective products. Such being the position, the DRDO is entitled to argue, as indeed it has, that its product is custom-made for the Armed forces no matter any one, who seeks a Transfer of Technology from it, would be entitled not only to make supplies to the Army but also market the

product within and outside the country. In that view, therefore, the requirement of obtaining a transfer of technology from the DRDO cannot be said to be irrelevant or arbitrary nor can it be said that the said requirement has been stipulated to benefit only the chosen few manufacturers of the product. It was and continues to be open to the petitioner to seek a proper transfer of a technology from the DRDO and thus, acquire the qualification prescribed by the Directorate General for making of the supply of the said product which must conform to the specifications and the formula that has been prepared by the DRDO on the basis of extensive tests and experiments. Such being the position, we see no reason to interfere with the ongoing tender process insofar as the same insists on the Transfer of Technology from the DRDO as a condition of eligibility for the manufacturers to submit their tenders in response to the tender inquiry issued by the Directorate General of Supplies of Transport."

4. It is aforesaid analysis which is questioned by the petitioner

by means of this review petition arguing that composition of the

petitioner‟s formulation was not different than that of DRDO and

the Court erred in arriving at contrary conclusion. In support of

this submission Mr. Haksar, learned Senior Counsel appearing for

the review petitioner took us through to the licence given by the

Food and Drug Administration to the petitioner for manufacture of

the product in question and sought to compare the same with the

terms and conditions contained in Notice Inviting Tender. He also

submitted that the composition of the respondent no.5 in

manufacturing the same product was identical. According to him

this was the error committed by the Division Bench which was

apparent on the face of the record as it was due to non-

consideration of the relevant documents and, therefore, the

present review petition was maintainable as held by the Apex

Court in Rajender Singh Vs. Lt. Governor, Andaman &

Nicobar Islands and Others, (2005) 13 SCC 289.

5. Mr. Sumit Pushkarana, learned counsel appearing for

respondents no. 1 to 4 and Mr. Akhil Sibal, arguing for respondent

no.5 have refuted the aforesaid submission. It was argued that

not only this review was misconceived and not maintainable but it

was devoid of any merit as well. Questioning the maintainability

and motives of this review petition, it was submitted that the

petitioner had filed the SLP which was withdrawn as the Apex

Court was not agreeing with the submission of the petitioner.

However, only after the judgment was reserved, the petitioner

submitted the application under the Right to Information Act on

25th February, 2008 and on that basis of information given to the

petitioner, the petitioner filed an application on 15th March, 2008

which never got listed. Thus, the background which is sought to

be projected now was never brought to the notice of the Division

Bench nor any case was argued on that basis. It was only after

the judgment delivered on 11th April, 2008 that such a plea was

taken in Supreme Court as well as in the present review petition.

On this premise, it was submitted that there was no error

apparent on the face of record which warranted interference in the

impugned order. It was argued that question in writ petition was

as to whether the Transfer of Technology was required for

becoming eligible for tender and this is the question which was

answered by the Division Bench. The petitioner was trying to

make out a different case altogether.

6. Learned Counsel for the DRDO additionally submitted that

composition of the product manufactured by the petitioner or the

respondent no.5 on the basis of Transfer of Technology was not

the issue and the main issue was efficacy of the product. It was

this aspect which was the main consideration on which judgment

of the Division Bench rested.

7. We are inclined to accept the contention of counsel for the

respondents.

8. The aforesaid order of the Division Bench was challenged by

filing SLP in the Supreme Court. This SLP was dismissed as

withdrawn vide orders dated 11th September, 2008 resulting in

the following order:-

"Learned Counsel for the petitioner wants to withdraw the petition stating that the High Court shall be moved in review. We express no opinion in that regard. The special leave petition is, accordingly, dismissed as withdrawn."

9. It is clear that the Supreme Court did not give any

opportunity to the petitioner to move the review petition. It was

the petitioner who made the statement to this effect and the

Supreme Court promptly clarified that it was not expressing any

opinion in this regard, viz whether such a review, in the facts and

circumstances of the case, is permissible or not. No doubt, even

if the SLP is dismissed in limine that does not imply that the view

of the High Court has been accepted and the review petition could

be filed. However, when such a review petition is filed, it has to be

adjudged having regard to the limited scope of review jurisdiction.

Viewed from this angle, we find that the learned counsel for the

respondents are justified in their submissions that the documents

on which reliance is placed now were not before the Court at the

time when the matter was heard and judgment reserved and,

therefore, it cannot be said that there was any error apparent on

the face of record warranting review.

10. Writ petition was filed in the year 2006. After counter

affidavits to this writ petition were filed, stand of the official

respondent became known to the petitioner. The petitioner did

not take any steps to obtain information. It woke up only after

the case was argued and judgment reserved on 15th January,

2008. Almost 40 days thereafter, application was preferred under

RTI and information was obtained on which the petitioner now

relies upon. However, even when such an information was

obtained, the petitioner did not exercise any due diligence in

bringing this information to the notice of the Court, though

application was filed on 15th March, 2008. No steps were taken

for getting this application listed. As per the procedure, once the

judgment is reserved, Registry does not list such applications or

place it before the Court till there is a specific direction of the

Court to this effect. Obviously, the Court can give direction only

when it is brought to the notice of the Court. No such attempt was

made for reasons best known to the petitioner, which felt

satisfied by filing the application in the Registry when such a step

was of no consequence. The judgment was delivered by the

Division Bench on the basis of material placed before it, and on

the basis of arguments advanced. Thus when the material sought

to be relied upon now was never placed by the petitioner before

the Court, it cannot be said that there is an error apparent on the

face of the record.

11. Even new material on the basis of which review is sought,

can be taken into consideration only when it is shown that such a

material was not known or could not be found out by the

petitioner in spite of exercising due diligence. Rule 1 of Order 47

of the Code of Civil Procedure furnishes the ground of review on

this basis.

12. As stated above, it is a case of total lack of due diligence on

the part of the petitioner. When the petitioner could move such

an application under the Right to Information Act on 25th

February, 2008, he could have moved such an application even

during the pendency of the writ petition. The petitioner showed

lackadaisical attitude in not bringing the same to the notice of the

Court. For all this, it is the petitioner who has missed the bus.

13. Even otherwise, we do not find any ground for seeking

review of the judgment dated 11th April, 2008. We find substance

and force in the contention of the respondents that subtle

distinction is to be drawn between the product and efficacy

thereof. This is a decision rendered on merits by the Division

Bench after going through the relevant consideration. We feel

that it is a correct decision on merits.

14. For all these reasons, this review petition is dismissed with

costs quantified at Rs.25,000/-.

15. The costs shall be paid to the „Bar Council of Delhi Indigent

& Disabled Lawyers Account‟

ACTING CHIEF JUSTICE

(SIDDHARTH MRIDUL) JUDGE DECEMBER 16, 2011 skb