Kerala High Court
M/S.Elcome Technologies Private ... vs State Of Kerala on 4 January, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
WP(C) NO. 9925 OF 2017
PETITIONER:
M/S.ELCOME TECHNOLOGIES PVT. LTD,
ELCOME HOUSE,A-06,INFOCITY,SECTOR 34,GURGAON-122002,
HARYANA REPRESENTED BY POWER OF ATTORNEY HOLDER,
SANTHOSH JACOB, GENERAL MANAGER (MARKETING)
BY ADVS.
SRI.R.S.KALKURA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, INFORMATION
TECHNOLOGY,GOVERNMENT OF KERALA,
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
2 THE KERALA STATE ELECTRICITY BOARD LTD,
VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695
004, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR
3 CHAIRMAN & MANAGING DIRECTOR,
THE KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM - 695 004.
4 CHIEF ENGINEER (CIVIL),
DAM SAFETY & DRIP VAIDYUTHI BHAVANAM, PATTOM, PATTOM,
THIRUVANANTHAPURAM - 695 004.
5 DEPUTY CHIEF ENGINEER (R & DS & DRIP)
RESEARCH & DAM SAFETY ORGANISATION,KSEB LIMITED,
PALLAM P.O, KOTTAYAM - 686 007
6 MS. ENCARDIO RITE ELECTRONICS PVT LTDA-7INDUSTRIAL
ESTATE,TALKATORA ROAD,
LUCKNOW - 226 011, UTTAR PRADESH
WP(C) NO. 9925 OF 2017
2
7** AIMIL LTD,
NAIMEX HOUSE, 88/1 OUTER RING ROAD,NAGAVARA,
BANGALORE 560 045.
**ADDRESS OF R7
M/SO. AIMIL LIMITED, NAIMEX HOUSE, INDUSTRIAL
ESTATE, MATHURA ROAD, NEW DELHI - 110 044.
REPRESENTED BY ITS MANAGING DIRECTOR
ADDRESS OF R7 IS CORRECTED AS PER ORDER DATED
25.10.2017 IN I.A.NO.16776/2017.
BY ADVS.
SRI.RAJU JOSEPH (SR.)
SRI.S.SHYAM KUMAR
SRI.K.K.KARAPPANKUTTY
SRI.RAJU JOSEPH SR.
SRI.GEORGEKUTTY MATHEW, SC, KSEB
SRI.ARUNKUMAR A., SC, KSEB
SRI.JOSEPH ANTONY C
SRI. JOSEPH ANTONY C (FOR R2 TO R5)
SMT.RESHMI THOMAS, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 9925 OF 2017
3
JUDGMENT
The petitioner has approached this Court challenging the
rejection of its bid for award of work under Ext.P2 e-tender. It is the
case of the petitioner that the petitioner has been excluded from the
bid illegally and without just reason. After the writ petition was
admitted, the work was tendered in favour of the 6th respondent.
2. The learned counsel appearing for the 6th respondent as
well as the learned Counsel appearing for the Kerala State Electricity
Board (respondents 2 to 5) would submit that the 6 th respondent has
almost completed the work. The learned counsel appearing for
respondents 2 to 5 would submit that the tender of the petitioner was
rejected as tender fee and EMD fee stated to have been paid by the
petitioner was 'subject to Bank clearance'. It is submitted that
instructions to bidders (Clause 15.3(a)) reads thus:-
"The online payment of bid security and bid
submissions fee should be made sufficiently early such that
the specified date and time of the opening of the bid the
status of payment should be successful. No "subject to
Bank clearance" status will be entertained."
It is submitted with reference to Ext.R2(a) that as far as the
WP(C) NO. 9925 OF 2017
petitioner is concerned the e-tendering system of the Government of
Kerala reflected that the payment of tender fee and EMD fee was a
failure and as subject to Bank clearance.
3. The learned counsel appearing for the petitioner seeks
time to obtain instructions from his client.
4. Having heard the learned counsel for the petitioner, the
learned counsel appearing for respondents 2 to 5 and the learned
counsel appearing for the 6th respondent and in the background of
the facts noticed above, I am of the view that this writ petition need
not be adjourned to enable the counsel for the petitioner to obtain
instructions. The tender of the petitioner was rejected on account of
the fact that the tender fee and the EMD was not successfully
remitted by the petitioner. There is absolutely no illegality in the
rejection of the tender as it was rejected for non compliance of the
conditions of tender. That apart, it appears that by passage of time
the 6th respondent, who was awarded with the work has almost
completed the work. Therefore, even if this Court were to find any
illegality in the rejection of the bid of the petitioner, it would be only
appropriate that this Court withholds relief in exercise of discretion.
It is settled law that relief under Article 226 of the Constitution of
India is discretionary and cannot be sought as a matter of right.
WP(C) NO. 9925 OF 2017
Therefore, this writ petition will stand dismissed.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 9925 OF 2017
APPENDIX OF WP(C) 9925/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DATED
15-3-2017 EXECUTED BY THE DIRECTOR OF
PETITIONER COMPANY IN FAVOUR OF THE
GENERAL MANAGER (MARKETING) OF THE
COMPANY DULY AUTHORIOSING AND EMPOWERING
HIM TO REPRESENT THE PETITIONER IN LEGAL
PROCEEDINGS
EXHIBIT P2 TRUE COPY OF THE E-TENDER BEARING NO BID
NO KL KSEB DRIP W8/VIII(G)/CE-2/2016-17
DATED 23-08-2016
EXHIBIT P3 TRUE COPY OF THE CONFIRMATION DATED 17-
1-2017 ISSUED BY THE 1ST RESPONDENT
THROUGH THE E-TENDERING SYSTEM PORTAL
EXHIBIT P4 TRUE COPY OF THE BID NEARING ID 191427
DATED 18-1-2017 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITED BY
THE PETITIONER WITH M/S. KOTAK MAHINDRA
BANK FOR NEFT TRANSACTION OF RS.
10,000/- BEARING THE TENDER FEE
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF ACCOUNT
ISSUED BY THE KOTAK MAHINDRA BANK
SHOWING DEDUCTION OF RS. 10,000/- FROM
THE ACCOUNT OF THE PETITIONER MAINTAINED
AT KOTAK MAHINDRA BANK
EXHIBIT P7 TRUE COPY OF THE BANK GUARANTEE ISSUED
BY KOTAK MAHINDRA BANK FOR RS.
2,00,000/- IN FAVOUR OF THE 5TH
RESPONDENT BEARING NO 0172BG16016549
DATED 15-12-2016
EXHIBIT P8 TRUE COPY OF THE BID OPENING SUMMARY
DATED 25-1-2017 ISSUED BY THE 4TH
RESPONDENT
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 27-1-2017
SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT ALONG WITH THE
ACKNOWLEDGMENT OF RECEIPT ENDORSED ON
THE SAME BY THE 4TH RESPONDENT
EXHIBIT P10 TRUE COPY OF THE LETTER DATED 6-2-2017
ISSUED BY THE PETITIONER TO THE 4TH
RESPONDENT
EXHIBIT P11 TRUE COPY OF THE SUIT NOTICE DATED 14-2-
WP(C) NO. 9925 OF 2017
2017 ISSUED BY THE COUNSEL FOR THE
PETITIONER TO THE RESPONDENTS 3 AND 4
EXHIBIT P12(A) TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD ACKNOWLEDGING RECEIPT OF THE SAID
NOTICE EVIDENCING RECEIPT OF EXHIBIT P11
NOTICE BY RESPONDENT 3
EXHIBIT P12(B) TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD ACKNOWLEDGING RECEIPT OF THE SAID
NOTICE EVIDENCING RECEIPT OF EXHIBIT P11
NOTICE BY RESPONDENT 4
EXHIBIT P13 TRUE COPY OF THE REPLY DATED 7-2-2017
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER RECEIVED ON 13-2-2017
EXHIBIT P14 TRUE COPY OF THE LETTER DATED 02.03.2017
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER
EXHIBIT P15 TRUE COPY OF THE QUERIES RAISED BY THE
PETITIONER TO THE 4TH RESPONDENT AS PER
LETTER DATED 5-10-2016
EXHIBIT P16 TRUE COPY OF THE QUERIES RAISED BY THE
PETITIONER TO THE 4TH RESPONDENT AS PER
LETTER DATED 28-10-2016
EXHIBIT P17 TRUE COPY OF THE REMINDER SENT BY THE
PETITIONER TO THE 4TH RESPONDENT AS PER
LETTER DATED 3-11-2016
EXHIBIT P18 TRUE COPY OF THE REMINDER SENT BY THE
PETITIONER TO THE 4TH RESPONDENT AS PER
LETTER DATED 10-01-2017
