Jharkhand High Court
Rishabh Swadeshi (Jv) vs Jharia Rehabilitation & ... on 28 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 13 of 2021
Rishabh Swadeshi (JV) --- --- Appellant
Versus
Jharia Rehabilitation & Development Authority
Through its Managing Director and others --- --- Respondents
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through: Video Conferencing
---
For the Appellant: Mr. Indrajit Sinha, Advocate
---
05 / 28.09.2021 Learned counsel for the appellant Mr. Indrajit Sinha while assailing the
impugned judgement, has made three fold submissions:
(i) that the learned writ court has committed an error in refusing to interfere in
the rejection of the solvency certificate / bank certificate submitted by the
petitioner during technical bid by the Respondent Nos. 1 to 3. It is submitted
that the Employer had not undertaken pre-qualification of potential bidders. As
per Clause 4.3 (g) of Part-A of the Bid Document, no particular format was
prescribed. The solvency certificate submitted by the appellant met the
requirement of the bidder as a reputed company with good financial standing. It
also provided that if the work is awarded, the bank shall be able to provide
overdraft /credit facilities to the extent of the amount required to meet the
working capital for executing the work during the contract period. The
Solvency Certificate of the joint venture bidder/ appellant herein is at page 166
of the Memo of Appeal. It is submitted that the banker certificate in respect of
lead partner clearly indicates that it is enjoying credit facilities to tune of
Rs. 72.50 crores which is more than the required amount of Rs. 15.75 crore.
Bank in the last paragraph has merely clarified that this information is furnished
without any risk and responsibility on their part in any respect whatsoever,
more particularly either as guarantor or otherwise. The certificate furnished by
the other joint venture company M/s Swadesi Civil Infrastructure Private
Limited which is at page 165 of the Memo of Appeal which shows that it was
enjoying overdraft facilities of Rs. 10.00 crore as on 24.04.2019 which was
more than required limit of 5.25 crore. In addition to the above, banker had also
certified that overdraft / credit facilities to the extent of Rs. 21.00 crore can be
further provided if the work is awarded and the company complies the terms
that provide STDR for the same. Later part of the certificate does not in any
manner affect the fulfilment of the criteria as the same is over and above the
requirement. It is a formal line and by no stretch of imagination
makes the banker certificate conditional. In any case for availing the overdraft /
credit facilities a Company has to comply with certain conditions which may
include Special Term Deposit Requirement. Therefore, despite both partners of
the joint venture meeting the requirement of solvency certificate, rejection of
the same by respondent no.1 Jharia Rehabilitation and Development Authority
(in short 'J.R.D.A') was per se illegal and unlawful. Learned counsel for the
appellant has referred to Clause 26.1 of SBD and submitted that the bidding
document has to be substantially responsive. The condition was therefore
directory and not mandatory, as has been read by the Employer during
Technical Evaluation. Learned writ court committed an error in refusing to
interfere in the matter, though rejection was arbitrary and illegal.
ii. It has been further urged that respondent no. 4 to whom the work has
been awarded, has indulged in suppressing the material facts relating to its
debarment / recession of contract which amounts to misrepresentation and / or
fraud. It is submitted that as per Clause 4.8 of the Bid Document, bidders
despite meeting the qualifying criteria were subject to be disqualified if they
have record of poor performance such as abandoning the works, not properly
completing the contract, inordinate delay in completion, litigation history,
financial failures, etc. Clause 37 lays down that the Employer will not only
reject the proposal if a Bidder is found to have indulged in corrupt or fraudulent
practices but would also declare the bidder ineligible to be awarded a work in
future. The Respondent No. 4 did not disclose about the letter no. 352 dated
14.03.2019 issued by the Government of Bihar, by which the contract was
rescinded and consequent filing of CWJC No. 6949/2019 before the Hon'ble
Patna High Court. Respondent No. 4 tried to justify it through their counter
affidavit that non-disclosure of this solitary case whereby they have neither
been blacklisted nor debarred, cannot be said to be concealment of the fact. It is
submitted that they were obliged to disclose about the rescission of the contract
which was under challenge in CWJC No. 6949/2019 in terms of clause 4.8 and
proforma at page 113 of the Memo of Appeal. The learned writ court has
however not made any comments upon this act of suppression on the part of the
respondent no. 4 in the impugned judgment.
iii. That the respondent employer has failed to adhere to the tender
conditions by awarding the work to the Respondent nos. 4 and 5 by dividing the
work into half. They have failed to show under which provision of CPWD
rules, such a course of action was permissible and as to how they have relied
upon the Jharkhand PWD Code of 2012 and / or Coal India Manual when the
relevant clause 31.1.1 (iii) at page 100 of the memo of appeal clearly shows that
if more than one bidder is found to be the lowest, then CPWD norms will be
followed for award of contract. By the impugned judgment, learned writ court
has erroneously held that as per the guidelines of the donor agency being the
Coal India Limited which has funded the project, if there are more than one
lowest bidder and splitting of the work is not considered necessary feasible,
then only final L-1 may be decided by calling all L-1 bidders to submit the
reduced price online through reverse auction amongst the L-1 bidders. It is
submitted that instead of splitting of the work, Respondents ought to have
entered into fresh negotiation for determining the L-1 bidders amongst the
lowest bidders. Even otherwise, splitting of the work after opening of the
financial bid amounted to changing the rules of the game after it has begun
which effectively denied the privilege of participation on equality terms to
many other eligible bidders who might have been inclined to participate in the
bid. Based on these submissions, impugned judgment has been assailed. It is
submitted that the petitioner has taken all three grounds before the learned Writ
Court which however erroneously failed to properly consider the same.
2. Issue notice on the Respondents under registered cover with A/D.
Learned counsel for the appellant undertakes to get the notice effected on the
registered e-mail address of the Respondents and also through Dasti. Requisites
for all these modes be submitted within one week. Office to issue draft of
service of notice through e-mail and Dasti upon learned counsel for the
appellant within one week thereafter. After effecting service of notice through
latter two modes i.e. e-mail and Dasti, a supplementary affidavit be filed
enclosing proof of service within three weeks thereafter.
3. Matter be listed in the month of November 2021.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Ranjeet/
