M/S. Apex Encon Projects Pvt. Ltd. ... vs Director General Married ...
2015 Latest Caselaw 1580 Del

$~13
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 24.02.2015

+       W.P.(C) 6695/2014 & CM Appl. 15887/2014

M/S. APEX ENCON PROJECTS PVT. LTD. DELHI                     .... Petitioners

                                       Versus

DIRECTOR GENERAL MARRIED ACCOMMODATION PROJECT
DELHI & ANR                          ..... Respondents

Advocates who appeared in this case:
For the Petitioner  : Mr T.V.L.Narasimha Rao and Mr Anurag Jain, Advocates.
For the Respondents : Mr Jasmeet Singh CGSC with Mr Kritik, Advocate for UOI.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. An invitation for pre-qualification of contractors was taken out by

the Director General Married Accommodation Project (MAP), Ministry

of Defence, Government of India, by virtue of notice dated 29.05.2014.

It may be pointed out that several works were specified in the said

invitation. The present petition is concerned with the work listed at serial

No.6. The same is as under: -

PQ No : DGMAP/PH-II/NOTICE NO.1 OF 2014-15

Sl Name of Work Estimated Value of Average Solvency Period of No. cost of satisfactorily yearly (in Competition work (in completed Financial Crore) Crore) similar Turnover works (in Crore)

----- ------ ------ ------- ------ ------- ------

------ ------ ------ ------ ------ ------ ------

  6    COMPLETION OF       155.00  One work of      46.50   46.50    25 Months
       BALANCE                     93 Crore or
       WORKS         FOR           two works of
       CONSTRUCTION                62.00 Crore
       OF    DWELLING              each or three
       UNITS                       works       of
       INCLUDING                   46.50 Crore
       ALLIED                      each
       SERVICES FOR
       OFFICERS, JCOs
       &     ORS      AT
       HYDERABAD
       (AF), DUNDIGAL,
       SECUNDERABAD,
       BEGUMPET (AF),
       BIDAR,
       HAKIMPET (AF)
----- ------                -----       ------       ----     ----      -----

2. It may be pointed out that only the balance work, as indicated in

serial No.6, is the subject matter of the present petition. Earlier, the

contract for construction of the dwelling units had been awarded to the

petitioner. That contract was cancelled by the respondent under condition

Nos 46, 47 and 48 of the general conditions of contract. The petitioner's

bid has been rejected on the ground-- "03 MAP contracts cancelled

earlier". The 03 MAP Contracts mentioned above relate to the works at

Bhatinda, Jabalpur and Secunderabad. The present tender pertains to the

balance work at Secunderabad.

3. It is the case of the respondent that since the petitioner did not

successfully complete the work at Secunderabad, it is ineligible to

participate in the subject tender, which is for the balance work left

unfinished by the petitioner.

4. The learned counsel for the respondent drew our attention to the

first proviso to Clause 60 (Arbitration) of the general conditions of

contract of the earlier contract. The said proviso reads as under:-

"Provided that in the event of abandonment of the works or cancellation of the Contract under Condition Nos. 46,47 and 48 hereof, such reference shall not take place until alternative arrangements have been finalised by the Government to get the works completed by or through any other Contractor or Contractors or Agency or Agencies."

5. In reference to the above provision, the learned counsel for the

respondent submitted that it was absolutely clear that if the work was

abandoned or cancelled under any of the Condition Nos. 46, 47 and 48,

the arbitration was not to take place unless and until alternative

arrangements had been finalized to get the works completed by or

through any other contractor or contractors or agency or agencies. It was,

therefore, submitted that the petitioner as well as the respondent were

well aware that in case the contract remains unfinished, the respondent

has the right to get it completed by someone else, other than the

petitioner. In this background, it was submitted that the petitioner could

not participate in the tender for the balance work, because the

understanding under the original contract was that the work would be

completed through some other contractor.

6. The learned counsel for the petitioner, however, submitted that

there is no disqualification of the petitioner in the current notice inviting

the qualification bid. He submitted that in an earlier round, when the very

same balance work was tendered on 20.12.2013, there was a specific

Clause (Clause 2.7), which enabled the respondents to disqualify a party

from participating in the tender, if that party had a record of negative

performance, such as abandoning the work or not completing the contract

etc. The learned counsel for the petitioner submitted that a clause similar

to Clause 2.7 in the earlier round was not included in the subject tender

and, therefore, it meant that the petitioner did not suffer from any

disqualification.

7. We have considered the arguments advanced by the counsel for the

parties and we find that the initial contract, that was awarded for the

Secunderabad Project to the petitioner, was left incomplete by the

petitioner. We are not going into the merits of that matter because that

would be the subject matter of arbitration. We are making it clear that we

have not expressed any opinion, as to whether the petitioner was in the

wrong or the respondent was in the wrong. The fact of the matter is that

the earlier contract clearly stipulated that if the same was cancelled or

abandoned under any of the condition Nos. 46, 47 and 48, the respondent

would have the right to get the works completed through some other

contractor.

8. This according to us, excluded the petitioner from being considered

for completing the balance work. The present tender is with regard to the

balance work. Therefore, it was well within the rights of the respondent

to reject the bid of the present petitioner on account of the fact that it is

with regard to the Secunderabad Project, which had been cancelled and it

was only the balance work, which was the subject matter of the present

tender.

9. In these circumstances, the writ petition does not have any merit,

the same is dismissed and the interim order is vacated. There shall be no

order as to costs.

                                         BADAR DURREZ AHMED, J



FEBRUARY 24, 2015                             SANJEEV SACHDEVA, J
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