Kerala High Court
Citsa Technologies Pvt. Ltd vs Kerala State Information ... on 13 April, 2023
W.P.(C). No.13573 of 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
WP(C) NO. 13573 OF 2023
PETITIONER:
CITSA TECHNOLOGIES PVT. LTD.
REGISTERED OFFICE AT 424 A, MANAKANDATHIL HOUSE,
MADAPLATHURUTH, MOOTHAKUNNAM, NORTH PARAVOOR,
ERNAKULAM. REPRESENTED BY ITS MANAGING DIRECTOR
SREEKUMAR P. M., PIN - 683516
BY ADVS.
UTHARA A.S
C.UNNIKRISHNAN (KOLLAM)
ANANDA PADMANABHAN
NIDHI BALACHANDRAN
VIJAYKRISHNAN S. MENON
VIVEK NAIR P.
GOUTHAM KRISHNA U.B.
RESPONDENTS:
1 KERALA STATE INFORMATION TECHNOLOGY INFRASTRUCTURE
(KSITIL)
REPRESENTED BY MANAGING DIRECTOR, 1ST FLOOR,
SANKETHIKA, PF ROAD, VRINDAVAN GARDEN, PATTOM P.O.,
THIRUVANATHAPURAM, PIN - 695004
2 THE CHAIRMAN
KERALA STATE INFORMATION TECHNOLOGY INFRASTRUCTURE
(KSITI), 1ST FLOOR, SANKETHIKA, PF ROAD, VRINDAVAN
GARDEN, PATTOM P.O., THIRUVANATHAPURAM., PIN - 695004
3 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVT. OF KERALA,
DEPARTMENT OF I.T., SECRETARIAT, TRIVANDRUM., PIN -
695001
BY ADV K.A. ABDUL SALAM FOR R1 & R2
SRI.S.KANNAN, GOVERNMENT PLEADER FOR R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No.13573 of 2023 2
JUDGMENT
Dated this the 13th day of April, 2023
This writ petition is filed by a start-up company incorporated in the year
2017, challenging Exhibit P6 communication issued by the Kerala State
Information Technology Infrastructure, Thiruvananthapuram - the 1st
respondent, cancelling a tender floated by it for administrative reasons and for
other related and consequential releifs.
2. The case of the petitioner is that responding to a tender invited by the 1 st
respondent, the petitioner submitted an e-tender, and deposited an amount of
Rs 5 lakhs towards the Earnest Money Deposit, and a fee of Rs.17,700/-, along
with all other required documents. Petitioner qualified in the technical bid after
the evaluation of tender by the evaluation committee, along with some other
participants.
3. The case of the petitioner is that the petitioner became the successful
lowest bidder with a quote of Rs.29, 99,99,999/-, however the tender was
cancelled for administrative reasons. The case projected by the petitioner is that
the tender was cancelled without assigning valid and adequate reasons through
a non speaking order and therefore, it is liable to be quashed. That apart, it is
contended that the reasons shown in Exhibit P6 communication for cancellation
of the tender for administrative reasons cannot be a reason for cancellation of
the entire tender process, especially when no details about the administrative
reasons are stated. Therefore, it is contended that in the absence of valid
reasons for the cancellation of the tender, it will amount to administrative bias
and administrative mala fides. Other contentions are also raised.
4. I have heard learned counsel for petitioner - Sri.C.Unnikrishan (Kollam),
learned Standing Counsel - Sri.K.A.Abdul Salam for the 1st respondent company
and its Chairman - the 2nd respondent, learned Government Pleader -
Sri.S.Kannan and perused the pleadings and material on record.
5. The sole question to be considered is whether any interference is required
to Exhibit P6 communication issued by the 1st respondent cancelling the tender
notification ? In my considered opinion, merely because the petitioner has
participated in a tender proceeding and has become successful, the petitioner
cannot make any claim out of the same since the offer made by the petitioner
was never accepted by the 1st respondent so as to culminate in a cause of action.
6. This I say because, the tender invited in question is a commercial one and
guided by the provisions of the Indian Contract Act, 1872. At the most it could
be said that by submitting the tender along with the tender requirements, the
petitioner has signified its willingness to do a contract. It may be true, in the two
cover bid system, the petitioner along with others were technically qualified; and
ultimately, the financial bid of the petitioner was the lowest one.
7. But fact remains, the 1st respondent has not accepted the proposal made
and no letter of acceptance was issued to the petitioner. Therefore, there are no
concluded terms and conditions in the tender procedure by and between the
parties. Merely because the petitioner has satisfied the requirements of the
tender inviting notice, that doesn't mean that the petitioner is entitled to be
awarded with the contract. The tender authority is always vested with the liberty
and powers to confer the contract on a suitable person or to cancel the same, if
it is found to be not feasible and acceptable to the tender inviting authority. It is
for the authority to decide as to how and the manner in which the tender is to be
taken into a logical conclusion to the advantage and benefit of the authority. The
tender inviting authority is not expected to pass a speaking order when the
tender is cancelled. This is more so, when no letter of acceptance was issued to
the petitioner on the basis of the proposal or offer made by the petitioner.
8. Section 4 of the Indian Contract Act makes it clear that the communication
of a proposal is complete when it comes to the knowledge of the person to
whom it is made; the communication of an acceptance is complete, as against
the proposer, when it is put in a course of transmission to him so as to be out of
the power of the acceptor; as against the acceptor, when it comes to the
knowledge of the proposer. Therefore, this is a case where there was no
acceptance of the willingness offered by the petitioner. Section 5 of the Indian
Contract Act deals with revocation of proposals and acceptance, which specifies
that a proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards. It further
specifies that an acceptance may be revoked at any time before the
communication of the acceptance is complete as against the acceptor, but not
afterwards. Section 7 specifies that acceptance must be absolute and in order to
convert a proposal into a promise the acceptance must be; (1) be absolute and
unqualified; (2) be expressed in some usual and reasonable manner, unless the
proposal prescribes the manner in which it is to be accepted. If the proposal
prescribes a manner in which it is to be accepted, and the acceptance is not
made in such manner, the proposer may, within a reasonable time after the
acceptance is communicated to him, insist that his proposal shall be accepted in
the prescribed manner, and not otherwise; but, if he fails to do so, he accepts
the acceptance. Section 8 deals with acceptance by performing conditions, or
receiving consideration, which states that performance of the conditions of a
proposal, or the acceptance of any consideration for a reciprocal promise which
may be offered with a proposal, is an acceptance of the proposal. Section 9
states that in so far as proposal or acceptance of any promise is made in words,
the promise is said to be expressed and in so far as such proposal or acceptance
is made otherwise than in words, the promise is said to be implied.
9. Therefore, it could be seen that there is no concluded acceptance of
contract by and between the petitioner and the 1st respondent company in order
to create any cause of action. To institute a litigation, there should be sufficient
reasons creating a cause of action thus enabling the litigant to seek to adjudicate
an issue. Here is a case where the tender inviting authority without accepting the
proposal or offer made by the petitioner in a manner known to law, has
cancelled the invitation of tender itself for administrative reasons of the 1 st
respondent company. A writ court is not expected to dig out the administrative
reasons unless any mala fides or such other similar grounds are established by
the petitioner. There is no such case for the petitioner. Therefore in my
considered opinion, there is no cause of action for the petitioner to contend and
canvass that the cancellation of the tender notification is illegal or arbitrary, since
the offer made by the petitioner has never culminated in a contract of binding
nature on the 1st respondent company in terms of law. Upshot of the discussion
is that, the petitioner has not made out any case of arbitrariness, illegality, mala
fides or other unfairness, justifying me to interfere with Exhibit P6 order of
cancellation of tender notification of the 1st respondent company.
Needless to say, the writ petition fails, accordingly, it is dismissed.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 13573/2023
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE E-TENDER NOTIFICATION NO.
KSITIL/KFONE/ 2022-23/18 DATED 18/01/2023
Exhibit P2 A TRUE COPY OF THE PROPOSAL DATED 15/02/2023
Exhibit P3 A TRUE COPY OF THE SYSTEM GENERATED EMAIL
FROM THE 1ST RESPONDENT DATED 17/02/2023
Exhibit P4 A TRUE COPY OF THE EMAIL INVITATION WITH
MEETING LINK DATED 04/03/2023
Exhibit P5 A TRUE COPY OF THE FINANCIAL SUMMARY OF ALL
BIDDERS
Exhibit P6 A TRUE COPY OF THE CANCELLATION CORRIGENDUM
DATED 03/04/2023
Exhibit P7 A TRUE COPY OF THE INCORPORATION
CERTIFICATION OF THE COMPANY
Exhibit P8 A TRUE COPY OF THE CERTIFICATION OF
RECOGNITION DATED 16/2/2018 ISSUED BY THE
DIPP (DEPARTMENT OF INDUSTRY AND PROMOTIONS
COUNCIL)
Exhibit P9 A TRUE COPY OF THE STARTUP CERTIFICATED DATED
19/04/2019 ISSUED BY KERALA STARTUP MISSION
Exhibit P10 A TRUE COPY OF THE UDYAM REGISTRATION
CERTIFICATE DATED 10/11/2020 ISSUED BY THE
MINISTRY OF MSME
Exhibit P11 A TRUE COPY OF THE NOTIFICATIONS ISSUED BY
THE GOVT. DATED 05/07/2022
Exhibit P12 A TRUE COPY OF THE WORK ORDER ISSUED BY BEL
IN FAVOR OF THE PETITIONER
Exhibit P13 A TRUE COPY OF THE PURCHASE ORDER DATED
28/09/2019
