Delhi High Court
Attal Plastics vs Union Of India & Ors on 6 May, 2025
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 25.04.2025
Judgment delivered on: 06.05.2025
+ W.P.(C) 3816/2025, CM APPLS. 17777-17778/2025
ATTAL PLASTICS .....Petitioners
versus
UNION OF INDIA& ORS. .....Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. Avi Singh, Sr. Adv. with Mr. Shiven
Verma and Mr. Shikhar Garg, Advocates
For the Respondent: Mr. Chetan Sharma, ASG, Mr. Sanat
Kumar, Sr. Adv, Mr. Anurag Ahluwalia,
Sr. Adv, Mr. Vikram Jetly, CGSC, Mr.
Nishant Gautam, CGSC, Ms. Rukmini
Bobde, CGSC with Mr. Amit Gupta, Mr.
Saurabh Tripathi, Ms. Shreya Jetly, Tushar
Jain, Mr. Vinayak Aren, Ms. Kanika Gupta,
Mr. Vardhman Kaushik, Mr. Mayank
Sharma and Mr. Vipul Verma, Advs with
Mr. Rudra Paliwal and Mr. Amit Acharya,
GP for UoI/NSICL. Mr. Milind Ramteka,
Director, PM Vishwakarna, Ministry of
MSMEs, GOI. Mr Kartikeya Tanton,
Director, Planning and Marketing, NSICL.
Mr. Rajesh Jain, Chief General Manager,
NSICL.
Ms. Nidhi Mohan Parashar, Advocate with
Ms. Meghna Jandu, Mr. Amar Bajpayee,
Mr. Shubham Ranakoti & Mr. Bharat,
Advocates for Respondent No.3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J.
1. Present writ petition has been filed under Article 226 of the
Constitution of India, 1950, seeking quashing of the notice dated
26.01.2025, whereby the petitioner was disqualified from the Technical Bid
as also the subsequent notice dated 31.01.2025, whereby the
Representation letter dated 26.01.2025 of the petitioner was rejected. The
petitioner further seeks quashing of the notice dated 26.01.2025, whereby
the respondent no.3/Pragyawan Technologies Private Limited (hereinafter
referred as "respondent no.3") was held to be technically qualified. A
further prayer has been made to debar/blacklist respondent no.3 for
committing fraud by submitting fraudulent documents to participate in the
tender issued by respondent no.2/National Small Industries Corporation
Limited (hereinafter referred as "Corporation") and to reconsider and re-
evaluate the Technical Bid of the petitioner.
2. The facts germane to the issue at hand and culled out from the
present petition are as under:-
(i) The petitioner claims to be a proprietorship firm, duly
registered under the Micro, Small and Medium Enterprises
Development Act, 2006, having its registered office at 3-4-468,
Ground Floor, Opp. Reddy Women's College, Barkatpura,
Hyderabad- 500027, and stated to be engaged in the manufacturing
and sale of non-woven bags, school bags, duffle bags, laptop cases,
luggage and trolley bags, delivery bags, recycled cotton bags, school
belts and kits.
(ii) Respondent no.1 is the Union of India through the Ministry of
Micro, Small and Medium Enterprises (MSME). The Corporation is
an ISO 9001:2015 certified Government of India Enterprise under
respondent no.1. Its objective is to promote, aid, and foster the growth
of micro, small, and medium enterprises in the country, and it operates
through a countrywide network of offices and Technical Centres.
(iii) Respondent no.3 is stated to be a private limited company,
incorporated on 18.07.2011, registered in the category of "small-
enterprises", and as per the Udyam Certificate, has declared its major
activity as "manufacturing".
(iv) On 03.08.2024, the Corporation issued a Request for Proposal
(RFP) (on behalf of the Ministry of MSME) bearing Reference No.
NSIC/PMV/2023-24/WASHERMAN/07/(R3) for Selection of Vendor
for supplying Tool Kits for Washerman (Dhobi) under Prime Minister
Vishwakarma Scheme. The Corporation subsequently issued 3
Corrigendum amending/correcting certain clauses of the RFP.
(v) It is the case of the petitioner that on 19.12.2024, both the
petitioner and respondent no.3 had participated in the subject tender
and had submitted its online bid as per the terms and conditions of
RFP. However, when the Technical Bid was opened on 26.01.2025,
the petitioner was disqualified vide notice dated 26.01.2025 on the
alleged ground that the invoices submitted by the petitioner reflect
supply to one vendor only, which is not valid as per "retail
experience".
(vi) Aggrieved thereof, the petitioner submitted a representation to
the Corporation vide letter dated 26.01.2025 for re-evaluation of its
technical bid. However, considering the objections so raised regarding
the invoices submitted not fulfilling the retail experience criteria, the
petitioner re-submitted the documents under "Private/Institutional
Sales" and requested the Corporation to re-evaluate the Technical Bid
in terms of the re-filed documents.
(vii) However, the representation of the petitioner was rejected by
the Corporation vide notice dated 31.01.2025 simply on the ground
that "new documents submitted with representation are not
acceptable".
(viii) It is the petitioner's case that despite the clear provisions
against the corrupt and fraudulent practices, the respondent no.3 was
able to continue in the said tender because the Corporation failed to
verify the documents/information submitted by the respondent no.3.
(ix) Aggrieved by the aforesaid, the petitioner had also submitted a
representation dated 10.03.2025 with the Corporation requesting it to
take strict action as per the terms of the tender. It is the petitioner's
case that since no action has been taken so far by the Corporation, the
petitioner has approached this Court by way of the present petition.
CONTENTIONS OF THE PETITIONER:-
3. Mr. Avi Singh, learned Senior Counsel briefly referred to the
background facts and events leading to the filing of the present writ
petition. He submitted that the original RFP did not explicitly define the
term "Retail sales", as requiring multiple vendors. He submitted that after
being technically disqualified, the petitioner had made a representation to
the Corporation, explaining that the sale, distribution or delivery of a
commodity even to an individual vendor can be termed as "Retail sale" as
per Rule 2(l) of the Legal Metrology (Packaged Commodity) Rules, 2011.
To submit further, he stated that "Retail sales" as per definition include
sales to individuals or groups for consumption, irrespective of the number
of vendors. That, based on the said definition, the petitioner had submitted
documents and invoices under the retail sales experience criteria.
4. Mr. Singh further contended that despite the explanation provided by
the petitioner in its representation, considering the objections so raised, the
petitioner re-filed some additional documents to substantiate its experience
in "Private/Institutional Sales" as per the tender requirement and requested
the Corporation to re-evaluate the Technical Bid of the petitioner. Learned
counsel submitted that the Corporation rejected the representation of the
petitioner on the flimsy pretext that "new documents submitted with the
representation are not acceptable" without considering the validity of such
documents. He also forcefully submitted that though he may have filed the
documents under the wrong head, i.e., Retail Sales, however, the RFP was
absolutely silent about the substantial difference between " Retail sales"
and Private/Institutional sales", nor were those phrases defined anywhere.
His contention also was that the qualifying eligibility criteria was the
number of items/units of the offered product sold e.g., in this case the
qualifying criteria was 22500 number of items/units which was fully
satisfied by the figure of 54909 units sold by the petitioner during the
relevant year. This was neither denied nor did the Corporation clarify that
the sale criteria had not been satisfied by the petitioner.
5. Learned senior counsel stoutly contended that the Corporation is
under an obligation to respond with detailed reasons as to why the fresh
documents, which, according to him, accord with the "Private/Institutional
sales" requirement, were overlooked. He further drew our attention to
Clause 7.3.5 of the Manual for Procurement of Goods, 2017, issued by the
Government of India, which also provides that in case of any shortfall in
documents with respect to the eligibility criteria, the same can be asked for
and considered.
6. Dilating his argument on the submission with respect to the two CA
certificates, learned senior counsel vociferously contended that the
Corporation had assumed that the two CA certificates were forged, merely
on the basis of them having been issued on the same date. However, it had
failed to consider that a CA can issue two certificates on the same day. He
referred to the 2 CA certificates dated 03.09.2024, one placed at page 144
and the other at 300 of the paperbook in support of his contention. He
further submitted that the question whether there is a forgery committed or
not, could have easily been ascertained by the Unique Document
Identification Number (hereinafter referred as "UDIN") ascribed to such
certificates and proof of their validity, being a mandatory requirement for
all practicing Chartered Accountants (hereinafter referred as "CA"). In the
instant case, he submitted that both the certificates have a valid UDIN,
which lists both the certificates, and the same could have been easily
clarified by the Petitioner, if an opportunity to be heard had been provided
to it before rejecting its Technical Bid and subsequent representation.
7. Learned senior counsel further submitted that the respondent no.3's
bid for RFP dated 03.08.2024 was accepted without verifying its document,
while in the past, respondent no.3 had participated in many of the RFPs
issued by Corporation by submitting fraudulent documents.
8. To illustrate the alleged fraud committed by respondent no.3, learned
senior counsel submitted that though in its Udyam Certificate, respondent
no.3 has stated its major activity as that of 'manufacturing', none of the
units mentioned in the Udyam certificate of the respondent no.3 are
manufacturing units, and a few of them do not even belong to the
respondent no.3. In support thereof, learned senior counsel drew our
attention to the photographs annexed to the writ petition.
9. Another contention learned senior counsel made was with respect to
the non grant of exemption from furnishing EMD on the basis that the
petitioner is also a small-scale industry under the MSME Guidelines. He
submitted that the Petitioner vide email dated 08.01.2025 informed the
Corporation that it fulfils all the criteria for exemption from furnishing the
earnest amount in the form of EMD and such exemption should also be
extended to it, however, the Corporation has remained non responsive even
till date.
10. He further submitted that Clause 4.5 of the RFP requires that the
bidder has to be either a manufacturer or a supplier. He relied upon Clause
10 of the Public Procurement Policy for Medium and Small Enterprises
Order, 2012 dated 23.03.2012 which provides for exemption to MSE from
payment of EMD. He submitted that the instant tender and requirement of
EMD therein is governed by the General Terms and Conditions dated
17.07.2024, which under part (m) sub-clause (xiii) of Clause 4 lays down
two conditions that are to be read conjointly for a Micro and Small
Enterprises (MSEs) in order to seek exemption from furnishing Bid
Security viz., (i) MSEs which have valid Udyam Registration; and (ii)
MSEs which are manufacturer of the offered Product or Service. He
submitted that being a manufacturer is an essential requirement for
exemption from depositing EMD.
11. Furthermore, as per the latest Udyam registration certificate of the
respondent no.3, the total number of employees is shown as 16 persons,
further evidencing that the operations of the respondent no.3 could not be
related to manufacturing, which is usually a labour-intensive activity.
Therefore, respondent No.3 has fraudulently, not only participated in the
tenders but also sought an exemption from depositing earnest money.
12. Learned senior counsel submitted that the Corporation in its counter
affidavit stated that respondent no.3 is exempt as per the Udyam
Certificate, however, respondent no.3 itself submitted they were exempt as
per the certificate issued by the Corporation. However, the claim that
respondent no.3 is a manufacturer with its factory at Noida has been
successfully falsified by the petitioner. He also contended that in the Major
Activity referred in the Udyam Certificate, respondent no.3 has entered
"manufacturing" which is self serving declaration that has not been verified
by anyone.
13. Mr. Singh, learned senior counsel thus submitted that keeping in
view the aforementioned undeniable facts the petitioner's Technical Bid
ought to be evaluated taking into consideration the fresh documents filed
by it along with the representation and simultaneously enquire into the
forged and fabricated documents furnished by respondent no.3 in the RFP.
CONTENTIONS OF THE CORPORATION:-
14. Mr. Anurag Ahluwalia, learned senior counsel submitted at the
outset that the petitioner has deliberately not impleaded the successful
bidder as a party respondent in the present writ petition in stark violation of
the settled law that in contractual matters, all parties who may or would get
adversely impacted ought to be impleaded. In fact, the petitioner has,
curiously, arrayed respondent no.3, who is L-6 and an unsuccessful bidder,
as party respondent no.3. It appears that the error is not innocent but
motivated. He urged that an adverse inference against the petitioner be
drawn on that count.
15. Learned senior counsel referred to Clause 4.4 of the RFP to submit
that the requirements for establishing experience and past performance of
the bidder are clearly specified and there is neither any ambiguity nor any
confusion as has been sought to be projected by the petitioner. The second
part of sub-clause (a) of Clause 4.4 mandates that the bidder or OEM
should have sold atleast 22,500 number of tools/items, which MAF is
required, to Private/Institutional or Retail or any other institution in any one
of the last five financial years. He submitted that to substantiate the
experience and past performance in order to evaluate the technical
eligibility, part (ii) of sub-clause (b) of Clause 4.4 stipulates the documents
required to demonstrate eligibility by way of sales to Private/Institutions
and CA certificate as per Annexure V-(B) duly filled in details of work
orders/contract agreements/purchase orders/LOAs/LOIs etc. Under the
Retail Sales head, in part (iii) of the said sub-clause, the documents
required to demonstrate eligibility, is the CA certificate as per Annexure V-
(B) and duly filled in details of Bill/Voucher No. and date, quantity, unit,
amount etc. Thus, according to learned senior counsel, there was no
confusion as to the nature of documents that were required to be submitted
under the head of either Private/Institutional Sale or Retail Sale.
16. Further, he submitted that the petitioner had furnished, along with its
bid, the Work Experience Certificate showing Retail Sale of the FY 2022-
23, which indicated a sale made for a quantity of 54,909 items, the same
was to only one single entity, whereas the requirement under the head of
Retail Sales obviously indicates sales to more than one entity. Thus, the CA
Certificate indicating experience to a single entity under the head of Retail
Sales was found to be unacceptable, and resulted in the petitioner being
technically disqualified on the ground that "In Annexure V(B) - Under
Retail experience submitted by Bidder, all invoices reflect supply to one
vendor only which is not valid as retail experience. Further, no supporting
documents are submitted for private/institutional sale". Learned senior
counsel stated that the petitioner in Annexure-V(B) under the retail
experience had incorporated the institutional experience, as all invoices
reflect supply to one vendor only which is invalid as "retail experience"
and further no supporting documents were submitted for
Private/Institutional Sales. Further, to the above, he contended that the
petitioner, without any context of the definition of "retail sales" used in the
Legal Metrology (Packaged Commodity) Rules, 2011, has tried to draw a
direct inference with the retail sale requirement under the present RFP. He
stoutly contended that the said definition provided under the said rules can
have no application in the present situation.
17. So far as the fresh CA Certificate furnished by the petitioner along
with its representation dated 27.01.2025 is concerned, learned senior
counsel submits that though the said certificate referred to
Private/Institutional Sale of the same quantity of products, however since it
was furnished after being technically disqualified, the same was rejected
vide reply dated 31.01.2025 clearly specifying that "New documents
submitted with representation are not acceptable". He also stoutly
contended that no such document could have been entertained by the
Corporation not only on the ground that the petitioner stood technically
disqualified as on 26.01.2025, but also that the Corporation was not under
any obligation to consider any such documents after such disqualification.
Additionally, he stated that it would not only be unfair to other similarly
situated bidders who may have been declared technically disqualified, but
would also jeopardise the RFP/Bid Process.
18. So far as the two CA certificates furnished by the petitioner are
concerned, learned senior counsel submitted that the said Annexure-V(B)
was required to be issued by the CA of the petitioner, which was submitted
as per the Annexure-V(B) in the name of H. Arora & Associates dated
03.09.2024. However, the Annexure-V(B), which was submitted by the
petitioner post its disqualification on 26.01.2025, was an amended one
issued by the same CA, namely, H. Arora & Associates, which reflects that
the date of issuance of the same was also 03.09.2024. He contended that for
a CA who has issued a particular certificate on 03.09.2024 enlisting a
product under "Retail Sales", it would be well nigh impossible and possibly
illegal, to list the same product under "Private/Institutional Sales" on the
same day. The 2nd Certificate dated 03.09.2024, which was furnished
alongwith the representation dated 26.01.2025, casts grave doubt and
suspicion about the genuineness and authenticity of the Certificate. Thus,
the conclusion that the same may be forged and fabricated was rightly
reached by the Corporation.
19. Choosing to compare the CA Certificate in respect of details under
the head of Retail Sales for FY 2022-23, learned senior counsel submitted
that the sale indicated therein was made to a single entity namely, Daenyx
International Pvt. Ltd for a total quantity of 54,909 units. He argued that on
a close observation, under the head "Product Description", model name of
the washing machine is "Daenyx 6.5 Glory" which establishes that the
OEM i.e., Sun Home Appliances Pvt. Ltd., and the Client i.e., Daenyx
International Pvt. Ltd are run by the same persons in different names. He
contended that an online search clearly established that both the aforesaid
Companies had only two Directors, namely, Ms. Gurmeet Kaur Kalra and
Mr. Jasraj Singh Kalra, who are common to both. Premised on the
aforesaid, learned senior counsel submitted that this would violate part (iv)
sub-clause (b) of Clause 4.4 of the RFP which categorically bars a
"transfer" to be considered as sales for the purpose of meeting the technical
criteria. Learned senior counsel was at great pains to explain that this
transaction, if the veil is lifted, would establish that this is not a sale but a
pure case of inter-company transfer. Thus, not fulfilling the technical
criteria entailing disqualification of the Technical Bid of the petitioner.
20. Further, to the submission of the petitioner regarding the respondent
no.3 neither being the manufacturer nor the supplier, learned senior counsel
countered this by stating that the said aspect also applies to the petitioner
since even the petitioner is neither the manufacturer nor supplier of Tool
Kits, however, the bid of the petitioner was not disqualified for this reason.
Additionally, he placed reliance on Clause 5.4 of the RFP, which required
that the bidder could be the direct manufacturer of the tool kit or could also
bid as a supplier, subject to providing a valid MAF from its OEM. He
vehemently contended that since the respondent no.3 had furnished a valid
MAF from its OEM, it was declared technically qualified and thus, the
allegation made by the petitioner is completely baseless.
21. He further submitted that in Clause 3(f) of the Instructions to Bidders
(ITB) of the RFP, it is categorically provided that bidders shall be
exempted from submission of EMD as defined in Public Procurement
Policy, 2012 issued by the Ministry of MSME. Further, Clause 10 of the
said policy provides that Micro and Small enterprises are eligible for
exemption from submission of the earnest money. Regarding the same,
learned senior counsel submitted that the respondent no.3 had furnished the
Udyam Certificate issued by the Ministry of MSME as per Annexure-II(B),
which reflects that respondent no.3 falls under the category of "Small
industry" and thus, was exempted from submitting EMD. Moreover, he
stated that the Corporation has no reason to disbelieve the Udyam
Certificate furnished by the respondent no.3.
22. Mr. Ahluwalia, learned senior counsel also contended that the scope
of the writ petition does not extend to settling personal rivalry between the
private parties and thus, this petition deserves to be dismissed solely on this
ground. He also emphasised that about, 147877 artisans have already
registered themselves under the scheme to avail benefits which are to be
conferred or granted to them and this type of frivolous litigations are
delaying and protracting welfare measures sought to be extended by the
Corporation.
CONTENTIONS OF THE RESPONDENT NO.3/PRAGYAWAN
TECHNOLOGIES PRIVATE LIMITED:-
23. At the outset, Ms. Nidhi Parashar, learned counsel for the respondent
no.3 stated that the petitioner had deliberately not arraigned M/s Vindhya
Telelinks Ltd., and M/s ITI Ltd., who were declared as L1 and L2 bidders.
She submitted that the non-impleadment of the said entities constitutes a
material defect, which merits outright dismissal of the instant writ petition.
She also vehemently contended that respondent no.3 is placed at L-6 in the
list of successful bidders and cannot be granted any award since it is
restricted only to L-1 and L-2, thus, respondent no.3 is not required to be
made a party in the instant petition.
24. Learned counsel submitted that the Udyam Certificate placed on
record by the petitioner is sufficient for respondent no.3 to be granted
exemption from furnishing EMD apart from being entitled under part
(m)(viii) of sub-clause (xiii) of Clause 4 of the GeM GTC for exemption
from EMD. Thus, according to her, the petitioner cannot make any
grievance out of it. Moreover, she contends that the petitioner is itself a
violator inasmuch as, even before the present writ was filed, the petitioner
had withdrawn its EMD, meaning thereby it has no locus to level false and
frivolous allegations against respondent no.3. This also shows that the
petitioner had accepted its disqualification without any demur.
25. Moreover, learned counsel also contended that this Court in writ
jurisdiction would not appreciate disputed questions of facts and thus the
entire thrust of the petitioner being predicated thereon, the petition deserves
to be dismissed.
ANALYSIS AND CONCLUSION:-
26. Having heard the learned Senior Counsel for the parties and
meticulously perusing the documents on record, we are not inclined to
interfere in the present writ for the following reasons.
27. Before we examine the contours of this case, it is relevant to consider
the importance of certain dates. The RFP was notified on 03.08.2024; the
last date for submission of bid was 20.12.2024; the technical bids were
opened on 26.01.2025 and the financial bids were opened on 31.01.2025.
It is to be noted that petitioner's technical bid was declared to be
disqualified keeping in view the assertion by the Corporation that the CA
certificate regarding MAF issued by the OEM regarding retail sales to one
entity did not fall within the eligibility criteria stipulated in part (iii) sub-
clause (b) of Clause 4.4 of the RFP. Subsequently, on 31.01.2025, not only
were the financial bids opened, even the list of successful bidders who were
declared as L-1 and L-2 was also notified. Yet, the petitioner did not
approach this court till almost two months elapsed and then filed the
present writ petition on 21.03.2025. It is also significant to note that in the
meanwhile, the petitioner had already withdrawn the EMD furnished to the
Corporation. As a sequitor, it can be inferred that the petitioner has
unequivocally accepted his technical disqualification without a protest or
demur. In such circumstances, it is not required for this Court to entertain
the writ petition. However, since the matter has been heard at length along
with other similar matters, we proceed to render our opinion on the
arguments addressed.
28. A bare perusal of Clauses 7.3.4 and 7.3.5 of the Manual for
Procurement of Goods, 2017 appears to indicate that if there are any minor
error/discrepancies or non-submission of copies of certain documents, the
tender issuing authority may, if it so desires, seek clarification from the
bidders who would have a right to furnish clarification or if need be the
requisite documents in order to satisfy the tender issuing authority. For
clarification para 7.3.4 and 7.3.5 of the Manual for Procurement of Goods,
2017 read thus:
"7.3.4Minor Infirmity/Irregularity/Non-conformity
During the preliminary examination, some minor infirmity and/or
irregularity and/or nonconformity may also be found in some tenders.
Such minor issues could be a missing pages/attachment or illegibility in
a submitted document; non-submission of requisite number of copies of
a document. There have been also cases where the bidder submitted the
amendment Bank Guarantee, but omitted to submit the main portion of
Bid Document. The court ruled that this is a minor irregularity. Such
minor issues may be waived provided they do not constitute any
material deviation (please refer to Para 7.4.1 (iv)) and financial impact
and, also, do not prejudice or affect the ranking order of the tenderers.
Wherever necessary, observations on such 'minor' issues (as mentioned
above) may be conveyed to the tenderer by registered letter/speed post,
and so on, asking him to respond by a specified date also mentioning
therein that, if the tenderer does not conform Procuring Entity's view or
respond by that specified date, his tender will be liable to be rejected.
Depending on the outcome, such tenders are to be ignored or
considered further.
7.3.5Clarification of Bids/Shortfall Documents
During evaluation and comparison of bids, the purchaser may, at his
discretion, ask the bidder for clarifications on the bid. The request for
clarification shall be given in writing by registered/speed post, asking
the tenderer to respond by a specified date, and also mentioning therein
that, if the tenderer does not comply or respond by the date, his tender
will be liable to be rejected. Depending on the outcome, such tenders
are to be ignored or considered further. No change in prices or
By:VINOD KUMAR
Signing Date:07.05.2025
15:31:11
substance of the bid shall be sought, offered or permitted. No postbid
clarification at the initiative of the bidder shall be entertained. The
shortfall information/documents should be sought only in case of
historical documents which pre-existed at the time of the tender opening
and which have not undergone change since then. These should be
called only on basis of the recommendations of the TC. (Example: if the
Permanent Account Number, registration with sales tax/VAT has been
asked to be submitted and the tenderer has not provided them, these
documents may be asked for with a target date as above). So far as the
submission of documents is concerned with regard to qualification
criteria, after submission of the tender, only related shortfall documents
should be asked for and considered. For example, if the bidder has
submitted a supply order without its completion/performance
certificate, the certificate can be asked for and considered. However, no
new supply order should be asked for so as to qualify the bidder."
Nothing in either of the clauses of the Manual for Procurement of
Goods, 2017 appear to indicate that a bidder whose document has been
found to be lacking in merit/substance, can be permitted subsequently to,
by way of clarification, replace such document which was essential as per
the eligibility criteria and not furnished initially in accordance with the
requirements of the RFP. Essentially, such clauses clearly appear to come
to the rescue of the genuine bidders who may have made inadvertent minor
errors of the nature specified therein, to rectify or clarify only such minor
discrepancies. Simultaneously, the said clauses would surely not aid a
bidder whose document, furnished in respect of an essential eligibility
criteria, itself is found to be lacking in substance.
29. Applying this to the facts of the present case, it is observed that the
CA Certificate dated 03.09.2024 furnished by the petitioner along with its
bid, under the Retail Sales head did not fulfill the criteria specified in sub-
clause (b) of Clause 4.4 predicated whereon, the petitioner was declared
technically disqualified. Subsequently, post such disqualification, by way
of a representation dated 26.01.2025, the petitioner enclosed therewith a
fresh CA Certificate showing sales under the Private/Institutional Sales
head, attempting to shift the category itself under which it applied. These
are two different certificates indicating two separate categories, which
cannot be said to be a minor mistake or a discrepancy which could be
subsequently rectified or clarified. No doubt, had the representation been
submitted at the preliminary inquiry stage, possibly, the petitioner's
submission would have some force in it. That having not been done in time,
the said submission relying upon Clauses 7.3.4 and 7.3.5 of the Manual for
Procurement of Goods, 2017 is unmerited.
30. Apart from the above, we have also perused the CA Certificate dated
03.09.2024 furnished by the petitioner alongwith its bid indicating Retail
Sales for the FY 2022-23. It clearly indicates sale only to one entity
comprising 54909 units of the offered product. The interpretation of the
Corporation that the Retail Sale would take within its ambit sale
transactions to multiple customer/consumers or even multiple entities not
restricted only to a single entity, appeals to us in view of the requirement
specified under the Retail Sales head. The Retail Sales as mentioned in part
(iii) sub-clause (b) of Clause 4.4 of the RFP regarding experience and past
performance required the bidders to provide a CA Certificate as per
Annexure V(B) duly filled with details of Bill/Voucher No. and date,
quantity, unit, amount etc. This, when compared with the requirements of
documents in support of private/institutional sales, clearly shows the
distinction. In part (ii) sub-clause (b) of Clause 4.4 regarding
Private/Institutional Sales what is required is a CA Certificate as per
Annexure V(B), duly filled with details of work orders/contract
agreements/purchase orders/LOAs/LOIs, along with a certificate for
successful completion/execution. If one were to compare part (ii) with part
(iii) it would bring to fore that retail sales would take within its ambit
transactions/sales to multiple customers or even multiple entities unlike
private or institutional sales which could or may be only to a single entity
and yet would fulfill the eligibility criteria. The reason is not far to see. In a
private/institutional sale, the ultimate object could be twofold, one for
internal or home consumption and two, for further retail sales. Whereas the
retail sale could be to either multiple customers or to multiple entities. This
appears to be the most plausible reason to draw distinction between private
institutional sales and retail sales. Otherwise, there would be no distinction,
and it would be otiose to have two separate and distinct heads for the same
experience and past performance. The Black's Law Dictionary defines
"Retail" as under:-
"The sales of goods or commodities to ultimate consumers, as
opposed to the sale for further distribution or processing."
The petitioner relied upon the definition of "Retail Sale" contained
in Rule 2 (l) of the Legal Metrology (Package Commodity) Rules, 2011,
which reads thus:
"2.Definitions
(l) "retail sale", in relation to a commodity, means the sale, distribution, or
delivery of such commodity through retail sales shops, agencies, or other
instrumentalities for consumption by an individual or group of individuals
or any other consumer."
Rather than finding any distinction as has been attempted to be
projected by the learned senior counsel for the petitioner, we find the
definition of "Retail" as contained in the Black's Law Dictionary not
distinctive from the one contained in Rule 2(l) of the Legal Metrology
(Package Commodity) Rules, 2011. In fact, the said Rules also clearly refer
to retail sales through shops, agencies, or other instrumentalities for
consumption by an individual or group of individuals or any other
consumer. Meaning thereby, it refers to sales to more than one individual
or entity. Thus, the submission of learned senior counsel for the petitioner
on the aforesaid is found to be unpersuasive and unmerited.
31. Yet another submission by the learned counsel for the Corporation
was that the sale transaction between the "Sun Home Appliances private
Limited" and "Daenyx International Private Limited" was not an actual sale
but an inter-company transfer/stock transfer premised on the basis that 2
directors of the aforesaid entities are common. In law, there is no quarrel
with the proposition that companies are recognized as juristic entities and
even if two companies have common Directors, they would ordinarily be
treated as two separate and independent juristic entities. The Corporation
has not placed on record any document to substantiate that the transaction
would amount to transfer leading to disqualification under Clause 4.4
providing for eligibility criteria for participating in the RFP. In the absence
of any such document, we are not inclined to accept the arguments
addressed on behalf of the Corporation which appears to be based on
inferential reasoning. However, that said, having regard to the analysis and
conclusion reached by us on merits hereinabove, we do not think that this
issue would have any bearing on the merits of the matter nor does it propel
us to have any different opinion. Thus, whether the transaction referred to
above, is "actual sale" or "transfer", would be irrelevant to render an
opinion on, given the facts and circumstances of the case.
32. Mr. Singh, learned senior counsel contended that the grant of
exemption from furnishing EMD to the respondent no.3 and non grant of
the same facility to the petitioner despite being registered as a Small Scale
Industry, is violative of the right of the petitioner as also abuse of such
authority to grant that benefit to respondent no.3 whose documents are
suspicious and not valid. We are not impressed with the said argument for
the reason that the genuineness and authenticity of the Udyam Certificate
issued by the Corporation in favour of respondent no.3 cannot be doubted
by this Court as it was for the Corporation to check and verify the
genuineness of documents and once accepted as genuine, this court under
Article 226 of the Constitution of India, surely cannot wade into the
territory of deciding disputed questions of facts, if at all. So far as the
submission of the petitioner as to whether there does or does not exist a
factory in the premises as mentioned in the Udyam Certificate is concerned,
the said issue too is a disputed question of fact and for the aforesaid reason
cannot be appreciated by this Court, particularly when the Corporation had
itself issued and accepted the said certificate as valid. In fact, the
photographs placed on record further affirm the issue to be one falling
within disputed questions which cannot be decided by us. Thus, we are not
persuaded by the said submission and find the same unmerited and reject it.
33. So far as the contention regarding non grant of exemption from
furnishing EMD despite falling within the definition of MSE as a small
scale industry is concerned, we find from the record that the petitioner had
in fact furnished the requisite EMD and also that post disqualification the
said EMD has already been withdrawn by it. Having regard to the fact that
the petitioner had voluntarily furnished the EMD without any protest or
demur and had also withdrawn it post disqualification, the argument seems
to be proceeding only for academic purposes. Thus, the question of grant or
non-grant of exemption from furnishing EMD being a pure academic
exercise having no consequences whatsoever as on date and in view of the
aforesaid fact, we are not inclined to traverse this controversy.
34. It is intriguing to note that the petitioner has arrayed respondent no.3
who, though was technically qualified, yet, after the financial bids were
opened was declared as L-6 in the list of successful bidders and not the L-1
and L-2. We note that according to the RFP only L-1 and L-2 were to be
awarded the contract in the ratio of 70:30 between L-1 and L-2, in that
order. In our considered opinion, respondent no.3 who was declared as L-6
is not a party which is either proper or necessary to be arrayed in the
present writ petition and it appears that it has been made party-respondent
with an oblique motive. It is trite that in a dispute pertaining to tenders
relating to public procurement by the government, the successful parties are
mandatorily required to be arrayed as parties to the petition, lest the
outcome of the said petition prejudices an unsuspecting and innocent party.
Thus, whether the respondent no.3 was granted exemption from furnishing
EMD overlooking false or fabricated documents or not, could not form the
subject matter of the present petition. We are therefore, of the considered
opinion that this submission in the context of respondent no.3 does not
require any opinion or observation by us and stands rejected.
35. In view of the above, we find no reasons to interfere or interdict with
the action taken by the Corporation in technically disqualifying the
petitioner and find no merit in the writ petition, which is dismissed, along
with the pending applications, if any.
TUSHAR RAO GEDELA, J
DEVENDRA KUMAR UPADHYAYA, CJ
May 6, 2025/ms/rl
