Delhi High Court
M/S Middle East Onshore And ... vs Oil And Natural Gas Corporation ... on 14 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th November, 2018
+ LPA 630/2018
M/S MIDDLE EAST ONSHORE AND OFFSHORE OIL AND GAS
EQUIPMENT FZE ..... Appellant
Through: Mr. S. Sharma and Ms. Priyanka Das,
Advs.
versus
OIL AND NATURAL GAS CORPORATION LIMITED
& ORS ..... Respondents
Through: Mr. A.C. Mishra and Ms. Pallavi
Dubey, Advs. for ONGC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CAV. No. 1037/2018
As learned counsel for the caveator appears, caveat stands
discharged.
CM. No. 47203/2018 and 47204/2018 (for exemptions)
Exemptions allowed subject to all just exceptions.
Applications stand disposed of.
LPA 630/2018
1. The challenge in the Appeal is to the order dated 26th
October, 2018 passed by the learned Single Judge in W.P.(C)
11171/2018 whereby the learned Single Judge has disposed of the
writ petition by directing the respondents to complete the enquiry as
initiated against the appellant as expeditiously as possible not later
than 4 weeks from that date after giving the appellant due
opportunity of being heard.
2. The facts as noted from the record are that the appellant
herein had challenged before the learned Single Judge the
communication dated 31st August, 2018 whereby the dealings of the
respondents with the appellant have been suspended pending
enquiry instituted against the appellant for its blacklisting. The
ground for initiating the enquiry against the appellant was its failure
to perform the contract for supply of high-strength proppants and
20/14 Mesh which was awarded to the appellant on 21 st July, 2017.
The justification given by the appellant for the non-supply of the
material concerned within the period of 60 days of purchase was
that, there was suspension of supply of electricity to its
manufacturing units from where the goods were to be supplied.
3. It was contended on behalf of the appellant that the goods
have since been manufactured from different facilities, the same be
inspected so that the supply can be made.
4. Respondents herein had relied upon Paragraph 51 of the
General Conditions of the Contract forming part of Purchase Order
dated 7th September, 2017 to contend that the same stipulates that
pending completion of inquiry process for putting the supplier on
holiday, the respondents shall neither issue any tender enquiry to the
defaulting supplier nor shall consider their offer in any ongoing
tender.
5. Learned Single Judge noting the fact that the goods were not
supplied and without expressing any opinion on the merits of the
allegations was of the view that the appropriate should be to give
direction for the completion of inquiry, a reference of which has
already been above.
6. It is the submission of the learned counsel for the appellant
that the appellant is not aggrieved by the direction given by the
learned Single Judge for completion of inquiry within four weeks
but pending finalization of the enquiry, the appellant should be
permitted to participate in five tenders which have been floated by
the respondents, the closing dates of which are 1st November, 2018,
5th November, 2018, 29th November, 2018, 20th November, 2018
and 27th November, 2018 respectively. According to him, if
nothing adverse is found against the appellant in the inquiry, it shall
lose the benefit of participating in five tenders as referred above.
The learned Counsel refers to a judgment of this court in the case of
M/s. Aurochem (India) Private Ltd. v. Union of India and Ors.
Civil Writ Petition No. 4307/93 and other connected matter to
contend that the blacklisting has to be tested on the touchstone of
Articles 14 and 16 and the same must be resorted to only in
appropriate cases on dire necessity where the facts of the case do
warrant exercise of such power and where without exercise of
interim power, the exercise of ultimate power would be rendered a
farce. He also relied upon the judgment of the Division Bench of
Bombay High Court in Paras V. Mehta India Inhabitant v.
Mumbai Municipal Corporation 2013 SCC OnLine Bom 1118 to
contend that the Court had directed the respondents to permit the
petitioner therein to take part in the tender process and consider the
same uninfluenced by the impugned letter / circular and if the
petitioner's bid is the most competitive, even then the respondents
shall not award contracts or issue work orders to the petitioner, until
the outcome of the inquiry / investigation.
7. Having considered the aforesaid submission made, suffice it
to state that in the case in hand, Para 51 of the General Conditions
of Contract as relied upon by the learned Single Judge vide (ii)
stipulates as under:
"Pending completion of the enquiry process for
putting the supplier on holiday, the ONGC shall
neither issue any tender enquiry to the defaulting
supplier nor shall consider their offer in any
ongoing tender.
8. The aforesaid stipulation is clear, which has been agreed to
by the appellant herein while signing the Contract. The submission
made by the learned counsel for the appellant is apparently at
variance with the aforesaid stipulation. The appellant having agreed
to such a stipulation cannot now contend that de-hors the said
stipulation in the contract, it should be allowed to participate in the
tender process pending inquiry. Any such direction shall amount to
rewriting of the Contract which is impermissible. The judgments as
relied upon by the learned counsel for the appellant are
distinguishable on facts, hence have no applicability. The
impugned order passed by the learned Single Judge is justified. We
do not see any reason to interfere in the impugned order.
The appeal is dismissed.
CM. No. 47203/2018 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
NOVEMBER 14, 2018/jg
