Gauhati High Court
Fabtech Projects And Engineers ... vs Numaligarh Refinery Limited on 17 January, 2022
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GAHC010003062022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/129/2022
FABTECH PROJECTS AND ENGINEERS LTD
A COMPANY INCORPORATED UNDER THE PROVISIONA OF THE
COMPANIES ACT, 1956 AND HAVING THE REGD. OFFICE AT J-504, MIDC,
BHOSARI, PUNE-411026, THROUGH AUTHORIZED SIGNATORY
MOHAMMAD SHAMIM, S/O. LT. ABDUL JABBAR SARMA, R/O. HOUSE
NO.16, ANANDA NAGAR, BYE LANE NO.2 P.O. AND P.S. NOONMATI, DIST.
KAMRUP (M), ASSAM, GUWAHATI-781005.
VERSUS
NUMALIGARH REFINERY LIMITED
THROUGH ITS MANAGING DIRECTOR, GOLAGHAT, NUMALIGARH,
ASSAM-785699.
Advocate for the Petitioner : MR. A LAL
Advocate for the Respondent :
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
17-01-2022
Learned counsels for the petitioner, namely, Mr. C. P. Sharma, Sr. Advocate, assisted by Mr.
A. Lal, as well as learned counsel for the sole respondent Mr. N. Deka, were heard on 11.01.2022
and fixed the matter today for order.
2) Petitioner is a company registered under the Companies Act, 1956 and is engaged in the
business of Design, fabrication, construction of pressure vessels including mounted storage
vessels, heat exchangers, piping and skids of various industries; Execution of large engineering
projects in the field of pressurised tanks and vessels and providing EPC services to reputed Oil
Companies and Multi National Companies and Manufacturing 100% Cotton Yarn.
3) Since 24.09.2019, the petitioner company was under Corporate Insolvency Resolution
Process (CIRP, in short) that was initiated by the National Company Law Tribunal, Mumbai under
the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016, in short). The said
Tribunal on 24.09.2019 itself appointed an Interim Resolution Professional (IRP, in short) to
conduct the CIRP of the petitioner company, who on 16.01.2020 issued the requisite Form G and
thereafter on 04.03.2020 and 27.08.2020 issued revised Form G in two newspapers, one in
English and other in Marathi language, inviting Expression of Interest (EOI, in short) from
Prospective Resolution Applicants (PRAs).
4) It is stated that the consortium of Manjeet Cotton Private Limited and Parason Machinery
(India) Private Limited being interested to revive the petitioner company under IBC, 2016
submitted its EOI on 08.01.2021. Considering the same the Resolution Professional issued
Request for Resolution Plan (RFRP, in short) to the PRAs. Accordingly, the PRAs submitted the
Resolution Plan for consideration of the Committee of Creditors (COC, in short) as per Section 30
of the IBC, 2016, stating that the PRAs shall bring in an amount of Rs. 197 Crores, out of which
Rs. 50 Crores shall be infused as and by way of working capital into the petitioner company and
the remaining amount shall be paid to various financial creditors in the manner as provided in the
plan including certain operational creditors and also for the treatment of the liabilities, loans and
outgoing and dues of all the creditors of the petitioner company as well as further treatment for
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its effective revival.
5) As the said Resolution Plan submitted by the PRAs was approved by the COCs by the
majority voting (e-voting) of 85.15% that was held between 02.02.2021 to 18.02.2021 as per the
provisions of Section 30 (4) of the IBC, 2016, the Resolution Professional immediately on
27.02.2021 filed an application under Section 30(6) of the IBC, 2016 being I.A. No. 607/2021
before the NCLT, Mumbai for approval of the said Resolution Plan by the Adjudicating Authority
under Section 31 of the IBC, 2016. Since the I.A. for approval of the Resolution Plan was pending
before NCLT, Mumbai, since later part of February, 2021 the Resolution Applicant, who have taken
over the petitioner company, filed an application before the said Tribunal for urgent listing and
hearing of the said I.A. showing the urgency and requirement for approval of the concerned
Resolution Plan under Section 31 of the IBC, 2016.
6) Pursuant to the said application of the Resolution Applicant, the NCLT, Mumbai heard the
I.A. No. 607/2021 from time to time and closed the said Interlocutory Application on 29.10.2021
for orders. The NCLT, Mumbai by its Order dated 16.11.2021 allowed the said I.A. No. 607/2021
approving the Resolution Plan and disposed of the said application and it was signed and
uploaded on 24.11.2021.
7) After approval of the said Resolution Plan by the NCLT, Mumbai by its order dated
16.11.2021 and on uploading of the same in its website on 24.11.2021, copy of the said order
was obtained and the Balance Sheet and Financial Statement of the petitioner company was
prepared showing its Net Worth of Rs. 122 Crores and Working Capital availability of Rs. 23
Crores.
8) In the meanwhile, the sole respondent Numaligarh Refinery Limited (NRL, in short) issued
Notice Inviting Tender being Bidding Document No./Tender No. 082176C/NRL/T/TANKS-2/07
inviting Bids for execution of "STORAGE TANKS PACKAGE PHASE 2 (8 NOS.) WORKS" ("Project")
for Numaligarh Refinery Expansion Project at NRL Numaligarh Refinery located at Numaligarh,
Assam, India being undertaken by it on open Domestic Competitive Bidding (E-Bidding) under
single stage two-bid system (Part-1: Techno-Commercial Bid and Part-2: Price Bid) from
competent Bidders with sound technical and financial capabilities fulfilling the Bidder Qualification
Criteria as specified in said tender document.
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9) The Tender download schedule as per the said NIT was from 01.09.2021 upto 16:00
Hours of 06.10.2021 and submission of bid schedule was from 11:00 Hours of 04.10.2021 to
16:00 Hours of 06.10.2021. However, with regard to the said NIT, respondent NRL issued
corrigendum from time to time and the last date for submission of bid by all the prospective
bidders was extended up to 03.11.2021.
10) As per the said NIT issued by the respondent NRL, each bidder is required to submit
documents fulfilling the technical and financial criteria as specified in the tender document
stipulating that the financial bid of only such bidder shall be opened, whose technical bid is found
to be qualified. Further, the said NIT indicates that the qualification Criteria is divided into two
aspects, i.e., the previous experience of the prospective bidder of completing the similar work and
the financial capability to complete the said work.
11) Clause 10.2 of the said Tender relates to Financial Criteria where as Clauses 10.2.1,
10.2.2. and 10.2.3 stipulate the detail regarding Financial Criteria. Clause 10.2.1 specifies -- The
average annual turnover of the Bidder shall be equal to or more than Indian Rupees of 16.80
Crores during the three immediately preceding financial years from the date of issue of Bidding
Documents. Clause 10.2.2 specifies -- Bidder shall have positive net worth for the immediately
preceding financial year as per the latest audited report and Clause 10.2.3 specifies -- The Bidder
must have a minimum working capital of amount equivalent to Indian Rupees of 5.60 Crores as
per immediate proceeding financial year audited annual Report.
12) Petitioner stated that on the last date of submission of bids by the prospective bidders,
i.e. on 03.11.2021, it submitted the bid with a letter dated 30.10.2021, stating that being under
the Corporate Insolvency Resolution Process (CIRP), it is unable to submit relevant documents
pertaining to Positive Net Worth and Working Capital requirements for want of finalisation of its
Balance Sheet further stating that as when the order is passed by the NCLT, the relevant
documents will be made available for appropriate evaluation by the respondent.
13) Petitioner also stated that after the order of the NCLT, Mumbai dated 16.11.2021, on
preparing its audited Balance Sheet for the year 2020-21, it immediately submitted the same
before the respondent authorities on 14.12.2021 by e-mail as well as courier service, requesting
the respondent that as the Resolution Plan of the petitioner has been approved, therefore its
Balance Sheet and Financial Statements be considered.
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14) Petitioner further stated that between 22.12.2021 to 30.12.2021 several e-mails have
been communicated by the respondent to the petitioner raising various techno-commercial
queries in respect of the bid submitted by it, which the petitioner responded vide e-mail as well as
telephonically clarifying those queries.
15) It is stated that in terms of the said NIT issued by the sole respondent, the petitioner
along with nine other bidders have submitted their bids and that the respondent is in the process
of evaluating the technical bids submitted by the bidders and that the commercial bids have not
yet opened. It is also stated by the petitioner that the financial bids of those bidders will be
opened whose technical bids are found to be qualified.
16) Petitioner submits that the respondent and its project management consultant are not
ready and willing to accept any further documents submitted by the petitioner after the last date
of submission of bids, i.e., 03.11.2021 and accordingly informed the petitioner.
17) Petitioner stated that it could not file the relevant financial documents along with its bid
on 03.11.2021, the last date of submission of bids, for the want of order from the NCLT and
owing to the peculiar facts as connected herein. Petitioner further stated that it has no malafide
intentions in not submitting the relevant financial documents before the last date of submission of
bids nor does it is gaining any undue advantage over the other bidders.
18) Hence, this writ petition by the petitioner praying amongst others for a direction to the
respondent to accept and consider the Balance Sheet and other Financial Documents/Statements
submitted by the petitioner, as produced at Annexure-10 to this petition, while evaluating the
financial criteria in Technical Qualification of the petitioner in the subject tender floated by the
respondent by Notice Inviting Tender bearing No. 082176C/NRL/T/TANKS-2/07 and not to
disqualify the petitioner for want of not having positive net worth and/or working capital
requirement while evaluating the bid of the petitioner and/or technical qualification criteria as
mentioned in the aforesaid NIT of the respondent.
19) Petitioner also brought to the notice of the Court that it filed Writ Petition (ST) No.
25690/2021 before the High Court of Judicature at Bombay, being Writ Petition No. 6/2022, but
due to the issue of jurisdiction, the same was withdrawn on 04.01.2022 with liberty to approach
this Court. To that extent copy of said order dated 04.01.2022 passed in Writ Petition No. 6/2022
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by the Bombay High Court has been placed before the Court.
20) Mr. C. P. Sharma, learned Senior counsel for the petitioner stating the maxim "actus
curiae neminem gravabit" submitted that an act of court or delay in the procedure shall prejudice
no man. As such he submitted that as the matter of CIRP was pending before the NCLT, Mumbai
much prior to the date of downloading of the tender document and the last date of submission of
bid pertaining to the NIT involved in the case, whereas the said Tribunal passed the order only on
16.11.2021 that was uploaded on 24.11.2021, which is after 03.11.2021, the last date of
submission of Bid by the prospective Bidders; therefore, the prayer of the petitioner needs to be
considered and allowed.
21) Mr. Sharma in support of his submission placed the decision of the Hon'ble Supreme
Court in the case of Atma Ram Mittal -Vs- Ishwar Singh Punia, reported in (1988) 4 SCC 284.
22) Mr. N. Deka, learned counsel for the sole respondent NRL submitted that apparently the
petitioner did not submit certain requisite financial documents along with its bid on the last date
of submission of bid in terms of the NIT issued by the NRL, involved in the present case.
23) Mr. Deka, on instruction also submitted that presently the technical bids of the bidders are
in the process of evaluation and the bidders whose technical bids are found to be qualified; their
financial bids shall be opened shortly. Mr. Deka on instruction also stated that respondent NRL
shall abide by any terms that may elucidate in the order to be passed by the Court but technical
bid of the petitioner has to undergo the required scrutiny.
24) With regard to the NIT involved in the case wherein e-tender was issued, Mr. Sharma,
learned counsel appearing for the petitioner stated that the concerned e-portal/platform on which
such e-tender was to be uploaded/ submitted by the prospective bidder pursuant to the NIT No.
082176C/NRL/T/ TANKS-2/07, issued by the respondent, is no longer active/in force and is not
operable by any such bidder after the last date of submission of bid, i.e. 03.11.2021. Mr. Deka,
learned counsel appearing for the respondent admitting the fact stated that after the last date
and time of submission/ uploading of bid, the concerned e-portal becomes defunct.
25) Heard the submissions of the learned counsels of both the parties and also considered
the judgment of the Hon'ble Supreme Court in the case of Atma Ram Mittal (supra).
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26) In the case of Atma Ram Mittal (supra) (1988) 4 SCC 284, the Hon'ble Supreme Court on
the basis of legal maxim actus curiae neminem gravabit have settled that no man should suffer
because of the fault of the court or delay in the procedure.
27) The Hon'ble Supreme Court in the case of Kalabharati Advertising -Vs- Hemant Vimalnath
Narichania, reported in (2010) 9 SCC 437 have held that wherein it has been ruled that the
maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no
one, becomes applicable when a situation is projected where the court is under an obligation to
undo the wrong done to a party by the act of the court. In a case, where any undeserved or
unfair advantage has been gained by a party invoking the jurisdiction of the court, and the same
requires to be neutralised, the said maxim is to be made applicable.
28) It is settled that legal maxims serve as guiding principles. In the case of Sarah Mathew
-Vs- Institute of Cardio Vascular Diseases, reported in (2014) 2 SCC 62 the Hon'ble Apex Court in
its Constitution Bench have held that the legal maxim actus curiae neminem gravabit means that
the act of court shall prejudice no man and that the court's inaction in applying mind to the
suspected offence should not be allowed to cause prejudice to a diligent complainant.
29) In the case of Neeraj Kumar Sainy -Vs- State of U.P., reported in (2017) 14 SCC 136, the
Hon'ble Apex Court, while considering the legal maxim actus curiae neminem gravabit have held
that -- Needless to say, it is well settled in law that no one should suffer any prejudice because of
the act of the court but the legal maxim that has been taken recourse to cannot operate in a
vacuum and it has to get the sustenance from the facts.
30) A three Judges Bench of the Hon'ble Supreme Court in the case of Jang Singh -Vs- Brij
Lal and Others, reported in AIR 1966 SC 1631 with regard to the legal maxim actus curiae
neminem gravabit have held that -- If the litigant acts on the faith of that information the Courts
cannot hold him responsible for a mistake which it itself caused. There is no higher principle for
the guidance of the Court than the one that no act of Courts should harm a litigant and it is the
bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be
restored to the position he would have occupied but for that mistake. This is aptly summed up in
the maxim: "Actus curiae neminem gravabit''.
31) It is seen that the NCLT, Mumbai on 24.09.2019 placed the petitioner company under
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CIRP under the provisions of the Insolvency and Bankruptcy Code, 2016 and also appointed IRP
to conduct the CIRP. Said IRP issued requisite Form G inviting EOI in August 2020 from PRAs of
the petitioner company. Pursuant to the same the consortium of Manjeet Cotton Private Limited
and Parason Machinery (India) Private Limited as PRAs on 08.01.2021 submitted the EOI to
revive the petitioner company under the IBC. Thereafter on the communication of the IRP the
PRAs submitted the Request for Resolution Plan, which was placed before the Committee of
Creditors as required under Section 30 of the IBC, 2016. The COCs by majority voting between
the period from 02.02.2021 to 18.02.2021 approved the Resolution Plan submitted by the PRAs
as required under Section 30 (4) of the IBC, 2016 and the concerned Resolution Professional on
27.02.2021 itself filed the necessary application before the NCLT, Mumbai being I.A. No. 607/2021
for approval of the said Resolution Plan by the Adjudicating Authority as required under Section
31 of the IBC, 2016 and the same was filed prior to 31 st March, 2021. As the said I.A. was
pending before the NCLT, Mumbai since 27.02.2021 for approval of the relevant Resolution Plan
and considering the urgency in the matter, the Resolution Applicant submitted the necessary
application before the NCLT, Mumbai on 16.10.2021 for urgent listing of said I.A. No. 607/2021
for its hearing and for approval of the Resolution Plan submitted in the matter. Thereafter, the
NCLT, Mumbai heard the said I.A. No. 607/2021 from time to time and closed the said I.A. on
29.10.2021 for orders. All these were prior to the last date of submission of the NIT involved in
the case, i.e., prior to 03.11.2021.
32) The NCLT, Mumbai by its Order dated 16.11.2021 disposed of the said I.A. No. 607/2021
approving the Resolution Plan, which was signed and uploaded on 24.11.2021 and thereafter on
obtaining the copyof the said order dated 16.11.2021, the Balance Sheet and Financial Statement
of the petitioner company could be prepared showing Net Worth of Rs. 122 Crores and Working
Capital availability of Rs. 23 Crores, which the petitioner submitted before the respondent NRL on
14.12.2021 by e-mail and courier service, and all these are after 03.11.2021, the last date of
submission of the NIT involved in the case.
33) It is also seen that after the Committee of Creditors by majority voting approved the
Resolution Plan of the Resolution Applicants, the Resolution Professional immediately filed the I.A.
No. 607/2021 before NCLT, Mumbai on 27.02.2021 for approval of the said Resolution Plan.
Further, the Resolution Applicant, have also filed an application before the said Tribunal for urgent
listing and hearing of the said I.A. No. 607/2021. All these show that the Resolution Professional
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as well as the Resolution Applicant acted diligently and much before the last date of submission of
bid, i.e., 03.11.2021; but the NCLT, Mumbai disposed of the said I.A. No. 607/2021 only on
16.11.2021 allowing the same and approving the Resolution Plan, as noted above.
34) The Court have also seen that till the decision of the NCLT, Mumbai dated 16.11.2021
passed in said I.A. No. 607/2021 approving the relevant Resolution Plan that was signed and
uploaded on 24.11.202, involved in the proceeding of the Corporate Insolvency Resolution
Process against the petitioner pending before the said Tribunal, the requisite Balance Sheet and
Financial Statement of the petitioner company could not have been prepared.
35) For the reasons above, no fault can be attributed to the petitioner company for not
furnishing its requisite Balance Sheet and other Financial Documents/Statements along with its
bid on the last date of submission of bid on 03.11.2021 in pursuance of the NIT No.
082176C/NRL/T/TANKS-2/07 issued by the respondent.
36) The Court have also noticed that the bids of the bidders are in the process of technical
evaluation and the financial bids of the technically qualified bidders are yet to be opened.
37) Considering the entire aspect of the matter, pursuant to the NIT No.
082176C/NRL/T/TANKS-2/07 issued by the respondent, the petitioner is directed to submit its
requisite Balance Sheet and other Financial Documents/ Statements, duly signed by its authority,
as provided in Annexure-10 to this petition, both by e-mail and also by submitting copies of the
same physically, before the sole respondent on or before 04:00 pm of 24 th January, 2022,
obtaining necessary acknowledgment from the respondent in that regard.
38) In the event of submitting the requisite Balance Sheet and other Financial
Documents/Statements by the petitioner, as directed and within the time so specified, the
respondent NRL shall evaluate the financial criteria in Technical Qualification of the petitioner in
the subject tender floated by the respondent by Notice Inviting Tender bearing No.
082176C/NRL/T/TANKS-2/07 in terms of the conditions and Bidder Qualification Criteria
incorporated in the said Tender floated by the respondent, involved in this case.
39) However, it is made clear that respondent NRL shall not disqualify the petitioner for want
of not having positive Net Worth and/or Working Capital requirement while evaluating the bid of
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the petitioner and/or technical qualification criteria, which it could not furnish along with its bid
document on 03.11.2021, i.e., the last date of submission of bid for want of the approval of the
Resolution Plan, which the National Company Law Tribunal, Mumbai subsequently allowed on
16.11.2021 while disposing of said I.A. No. 607/2021, noted above.
40) With the above observation and direction, this writ petition stands allowed to the extent
above.
41) Consequently, the interim order passed earlier on 11.01.2022 is hereby recalled/stands
vacated.
JUDGE
Comparing Assistant
