Delhi High Court
Punj Lloyd Infrastructure Ltd vs National Highways Authority Of ... on 19 September, 2017
$~ 56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7036/2010 & CM 13962/2010, 2307/2011
PUNJ LLOYD INFRASTRUCTURE LTD ..... Petitioner
Through: Mr S. Venkatesh, Mr Varun singh
and Mr Sandeep Rajpurohit,
Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY
OF INDIA AND ANR ..... Respondents
Through: Ms Gunjan Sinha Jain, Advocate with
Ms Bhavana Singh, Mr Mukesh
Kumar, Advocates NHAI.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 19.09.2017
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, praying as
under:-
"a) Issue a writ of Certiorari or any other appropriate writ
quashing the Impugned Communication No.
NHAI/BOT/DBFO/11019/02/07/336 dated September 14,
2010 issued by the Respondent No.1 to the Petitioner;
b) Issue a writ of Prohibition or any other appropriate writ
restraining Respondent No.1, its principal officers, servants,
agents and all other persons acting for and on its behalf from
invoking/partially invoking Bank Guarantee No.
2181GBID000310 dated August 6, 2010 issued by Respondent
No.2; and restraining Respondent No.2 from honouring any
invocation of the Bank Guarantee No. 2181GBID000310 by
the Respondent No.1;
c) Award the costs of the present proceedings in favour of the
Plaintiff and against the Defendant No.1."
2. The petitioner had submitted a bid for executing the works of
"Development and Operation/Maintenance of the four-laning of the Jetpur -
Somnath Section of N.H. 8 - D from Km 0.000 to Km 127.600 in the State of
Gujarat under NHDP, Phase III to be executed as BOT (TOLL) on DBFOT
Pattern Project" ("the Project"). The aforesaid bid was submitted pursuant
to a Request for Quote (hereafter "RFQ") issued by the respondent no.1
(hereafter 'NHAI'). The petitioner was shortlisted as one of the technically
qualified bidders and in May, 2010 NHAI issued a Request for Proposal
(hereafter „RFP‟) upon payment of ₹1,66,000/-.
3. Thereafter, on 09.08.2010, the petitioner submitted its bid along with
the requisite enclosures as mentioned in the bid document. The petitioner
also furnished a bid security in the form of a bank guarantee in the sum of
₹8,28,00,000/- as well as the Power of Attorney (hereafter „POA‟) dated
26.07.2010 in favour of Mr Rajat Vijay Seksaria, General Manager,
authorizing him to sign and submit the bid documents. The petitioner also
submitted a certified copy of a resolution of its Board of Directors passed on
20.07.2010, whereby Mr Seksaria was authorized to sign the documents on
behalf of the petitioner.
4. The POA was duly notarized on 26.07.2010; however, it incorrectly
mentioned the date 29.07.2010. According to the petitioner, this was an
inadvertent mistake committed by the Notary while authenticating the POA.
On discovering this mistake, the petitioner sent a letter dated 18.08.2010,
enclosing a certificate dated 17.08.2010 issued by the Notary acknowledging
the said error and certifying that the POA was, in fact, attested on
26.07.2010. The NHAI treated the petitioner‟s bid as non-responsive and by
a letter dated 21.09.2010, communicated the same to the petitioner. The
petitioner was further informed that in terms of clause 2.20.7 (a) of the RFP,
5% of the petitioner‟s bid security would be forfeited. (the said
communication is impugned in the present petition).
5. The petitioner filed a suit being CS (OS) 2000/2010, inter alia,
seeking an order restraining NHAI from encashing the bank guarantee (bid
security). However, by an order dated 27.09.2010, passed by a coordinate
bench of this Court, the plaint was rejected, leaving it open for the petitioner
to file a suit for recovery.
6. Thereafter, the petitioner filed the present petition and by an order
dated 21.10.2010, the encashment of the bank guarantee, as furnished by the
petitioner, was restrained.
7. The learned counsel for the petitioner submitted that POA was
submitted as per the format provided under the RFP documents and
petitioner‟s bid could not be turned down as non-responsive. He further
submitted that an inadvertent error as to the date of attestation could not
render the petitioner‟s bid to be termed as 'non-responsive'. And,
consequently, NHAI could not forfeit any part of the bid security. He
referred to the decision of a Division Bench of this Court in Madhucon
Projects Ltd. v. National Highways Authority of India (W.P.(C) No.
8418/2010) decided on 10.03.2011 in support of his contention.
8. Ms Gunjan Sinha Jain, learned counsel appearing for NHAI conceded
that the facts in the case of Madhucon Projects Ltd. (supra) were similar to
the facts in the present case and the said decision would be applicable.
However, she submitted that in that case the Division Bench had referred to
the decision of the Supreme Court in Poddar Steel Corporation v. Ganesh
Engineering Works and Ors.: (1991) 3 SCC 273, which was considered by
the Supreme Court in a later decision in Central Coalfields Limited and
Anr. v. SLL-SML (Joint Venture Consortium) and Others: (2016) 8 SCC
622 wherein the Supreme Court had observed that the participation principle
as laid down in Ramana Dayaram Shetty v. International Airport
Authority of India: (1979) 3 SCC 489 had been ignored by the Supreme
Court in Poddar Steel (supra). She submitted that in this view the decision
in Madhucon Projects Ltd. (supra), ought to be reconsidered.
9. Undisputedly, the decision of the Division Bench in case of
Madhucon Projects Ltd. (supra) is applicable in the facts of the present
case. In that case the court had held that "A typographical error of a date in
the Power of Attorney when it is duly signed, accepted and notarized can at
worst be a technical defect". A plain reading of the judgment clearly
indicates that the Court did not accept that a typographical error in the POA
could be considered as a deviation and, therefore, directed that the bid in that
case be considered as responsive. NHAI had appealed against the aforesaid
decision by filing a Special Leave Petition before the Supreme Court of
India (SLP (C) 15738/2011 which was subsequently converted to Civil
Appeal No. 3055/2015 on leave being granted). By an order dated
17.03.2015, the Supreme Court granted leave but did not interfere with the
decision of the Division Bench except to set aside the costs imposed. The
Supreme Court, inter alia, held that "since the Division Bench has applied
Fateh Chand vs. Balkishan Dass AIR 1963 SC 1405 and thus had found no
legal propriety in the deduction of 5% of the Bid Security, this Appeal does
not call any further consideration".
10. In view of the above decision the question whether any part of the bid
security submitted by the petitioner can be forfeited, is no longer res integra.
11. The decision of the Supreme Court in Central Coalfields Limited and
Anr. (supra) is not applicable. In that case, the Supreme Court had held that
the issue regarding acceptance or rejection of a bid should be looked at not
only from the point of view of the unsuccessful party but also from the point
of view of the employer. It was observed that the question "whether a term
of NIT is essential or not is a decision taken by the employer which should
be respected"; it is in this context that the Supreme Court had referred to the
decision in Poddar Steel (supra). In the present case, it is nobody‟s case
that the requirement of furnishing a duly Notarised POA is not an essential
term; the issue, essentially, is whether the said term had been complied with.
12. Given that the date of attestation was a typographical error, the POA
could not be considered as not in conformity with the RFP. A typographical
error did not render the POA non-complaint with the RFP.
13. In view of the above, the petition is allowed and the communication
dated 14.09.2010 is set aside. NHAI is directed to return the bank guarantee
furnished by the petitioner along with its bid. The pending applications are
also stand disposed of. The parties are left to bear their own costs.
VIBHU BAKHRU, J
SEPTEMBER 19, 2017
pkv
