Delhi High Court
Super Medicare Agencies vs State (Nct Of Delhi) & Ors on 25 February, 2020
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 25.02.2020
+ W.P.(C) 10536/2018 & CM 41114/2018
SUPER MEDICARE AGENCIES ..... Petitioner
Through: Mr.Sanjay Sehgal, Adv.
versus
STATE (NCT OF DELHI) & ORS ..... Respondents
Through: Mr.Ramesh Singh, GNCTD with
Mr.Chirayu Jain, Mr.Ishan
Agrawal, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed by the petitioner praying for
the following reliefs:
"1. Issue direction, writ or order to Respondent
No. 2 to issue supply order to the petitioner;
2. Issue direction, writ or order to Respondents not
to declare fresh tender for the abovementioned
medical equipment's required for the health
facilities unless the completion of the present
contract between the parties;"
WP(C) No. 10536/2018 Page 1
2. It is the case of the petitioner that the respondent no.4 had
floated a tender on 16.03.2016 for supply of Medical
Equipment for the proposed polyclinics, Mohalla clinics and
other health facilities. The petitioner was declared L1 in
Group-A of the said tender on 27.07.2017. By a
communication dated 06.04.2018, the respondent no.5 informed
the petitioner about acceptance of its bid for procurement of
254 units of Multipara Cardiac Monitor (Group-A) and called
upon the petitioner to submit the Performance Security Deposit
along with the Contract Form and Manufacturer Authorization
Form within 15 days of the said letter. The petitioner duly
complied with the requisition on 20.04.2018 and submitted all
the documents including the bank guarantee for an amount of
Rs.81,83,000/-. The respondents also released the Earnest
Money Deposit of Rs.20 lacs to the petitioner as the Bank
Guarantee had been submitted by it. However, as the supply
order was not thereafter issued by the respondent, the present
petition was filed.
3. The respondent in its counter affidavit has stated that the
supply order was not issued to the petitioner pursuant to a
complaint alleging major irregularities, being filed by one
Krishna Health Care through the Anti Corruption Branch on
03.08.2018. It was further found that the equipment was also
available in the Government e-Market Place (GeM) and in
accordance with the General Financial Rules (GFR), 2017, an
equipment which is available on GeM was to be procured only
WP(C) No. 10536/2018 Page 2
through GeM. It is further contended that due to delay in
finalization of the tender, it was felt that the indenting hospitals
might have procured the equipment already from GeM.
Therefore, the respondent took a decision on 11.02.2019 to
cancel the tender and allow the remaining hospitals also to
procure their monitors from GeM.
4. The counter affidavit does not state if the above decision
was ever communicated to the petitioner. It is also to be
noted that the present petition had been filed on or around
27.09.2018. It seems that the decision of the respondent has
been taken only as a reaction to the notice issued by this Court
on the present petition by its order dated 03.10.2018.
5. The learned counsel for the respondent has also produced
before me the relevant file notings leading to the decision. The
office noting clearly records that the equipment in question was
not available on GeM at the time of floating of the tender or its
finalization. It was available only thereafter.
6. As far as the complaint is concerned, it is not contended
if any merit was found in such complaint.
7. Similarly, submission that the hospitals may have
procured the equipment from GeM, apart from being a mere
conjecture, even otherwise cannot be accepted as it has been
admitted that the equipment was not available on GeM till
much after finalization of the tender.
8. The respondent being bound by Article 14 of the
Constitution of India even in matters of contract, cannot act in
WP(C) No. 10536/2018 Page 3
an arbitrary manner. A concluding contract cannot be re-
opened only because of certain subsequent developments. The
respondent should have considered that the petitioner had not
only signed the contract but had also acted adverse to its
interest by furnishing the bank guarantee and procuring the
equipment for making supplies to the respondent, which was to
be made within a time bound manner.
9. The learned counsel for the respondent has placed
reliance on the judgment of the Supreme Court in Rishi Kiran
Logistics Pvt. Ltd. vs. Board of Trustees of Kandla Port Trust
& Ors. (2015) 13 SCC 233 to contend that the remedy of the
petitioner would be only in claim of damages as the decision of
the respondent cannot be called arbitrary.
10. In my view, the said judgment would not be applicable to
the facts of the present case. Admittedly, the equipment was
not available on the GeM till after the finalization of the
contract in favour of the petitioner. In the present case, the
tender had been floated in the year 2016 and reached its
finalization only in April, 2018. For almost two years, the
equipment was not available on GeM. The petitioner cannot be
made to suffer for such delay.
11. It is also to be noted that the decision of the respondent
had not even been communicated to the petitioner and was
taken only after filing of the present petition.
12. In view of the above, the decision of the respondent to
terminate the contract is set aside. The respondent shall
WP(C) No. 10536/2018 Page 4
consequently issue supply orders to the petitioner within four
weeks from today as much time has already lapsed since
finalization of the tender. There shall be no order as to costs.
NAVIN CHAWLA, J
FEBRUARY 25, 2020
RN
WP(C) No. 10536/2018 Page 5
