Ksr Marine Services Pvt. Limited Rep. By ... vs State Of Kerala
2025 Latest Caselaw 1326 Ker

Kerala High Court

Ksr Marine Services Pvt. Limited Rep. By ... vs State Of Kerala on 9 June, 2025

Author: N.Nagaresh

Bench: N.Nagaresh

                                               2025:KER:39579

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947

                    WP(C) NO. 13872 OF 2025

PETITIONER:

         KSR MARINE SERVICES PVT. LIMITED,
         REP. BY AUTHORIZED SIGNATORY,
         ANEESH K.R.
         FLAT NO. 401, OCEAN VIEW APARTMENTS,
         7-5-176/1, PANDURANGAPURAM,
         VISHAKHAPATNAM, ANDHRA PRADESH,
         REPRESENTED BY ITS AUTHORIZED SIGNATORY
         ANEESH K.R, AGED 54 YEARS,
         S/O. LATE G. KARTHIKEYAN,
         MANAGING DIRECTOR,
         VICTORIAN DREDGING AND MARITIME VENTURES
         PVT. LTD., PPRRA 11, PALAPARAMBU ROAD,
         ELAMAKKARA, ERNAKULAM, PIN - 682026

         BY ADVS.
         SRI.D.KISHORE
         SMT.MEERA GOPINATH
         SRI.R.MURALEEKRISHNAN (MALAKKARA)
         SHRI.ANANT KISHORE


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY ITS SECRETARY,
         IRRIGATION DEPARTMENT, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN - 695001

    2    THE SUPERINTENDING ENGINEER,
         SIRUVANI PROJECT CIRCLE, CHUNNAMBUTHARA,
         PALAKKAD, PIN - 678012
                                               2025:KER:39579
W.P.(C) No.13872/2025
                             :2:


     3     THE KERALA STATE IT MISSION,
           RERESENTED BY ITS DIRECTOR,
           E-GOVERNMENT PROCUREMENT PMU & HELP DESK,
           SAANKETHIKA', NEAR EPF OFFICE, VRINDAVAN GARDENS,
           PATTOM, THIRUVANANTHAPURAM, PIN - 695004

     4     THE ICICI BANK,
           7-102/5 & 12, GROUND FLOOR, SAI ENCLAVE,
           AJAY CHAMBERS, UPPAL ROAD, HABSIGUDA,
           HYDERABAD, ANDHRA PRADESH,
           REPRESENTED BY ITS BRANCH MANAGER,
           PIN - 500007

           BY ADVS.
           SRI.LAL K.JOSEPH
           SRI.P.MURALEEDHARAN (THURAVOOR)
           SMT.T.A.LUXY
           SRI.SURESH SUKUMAR PISHARADY
           SRI.ANZIL SALIM
           SHRI.SANJAY SELLEN
           SRI.P.I.DAVIS, SPL. GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27.05.2025, THE COURT ON 09.06.2025 DELIVERED THE
FOLLOWING:
                                                                        2025:KER:39579
W.P.(C) No.13872/2025
                                            :3:




                                 N. NAGARESH, J.

                `````````````````````````````````````````````````````````````
                            W.P.(C) No.13872 of 2025

                `````````````````````````````````````````````````````````````
                       Dated this the 9th day of June, 2025


                                  JUDGMENT

~~~~~~~~~

The petitioner is a Company engaged in

Capital and Maintenance dredging projects. The petitioner

seeks to declare that non-submission of online bid by the

petitioner in furtherance of Ext.P1 tender notification on the last

date scheduled for submission is due to the error in

e-procurement portal and that the petitioner is entitled to submit

its bid.

2. The 2nd respondent invited international

competitive bidding in electronic tendering system for selecting

a contractor for awarding desiltation work of Mangalam 2025:KER:39579

Reservoir, as per Ext.P1 invitation for bids. The last date and

time for online bid submission was 29.03.2025 at 4 pm. The

last date of submission of documents offline was on 05.04.2025.

Technical and commercial bids were to be opened on

07.04.2025.

3. The petitioner attempted to submit online

tenders as per the directives in Ext.P1 before the last date and

time. The petitioner had remitted ₹25,05,900/- through the

online portal. The petitioner states that even though the money

was debited from the petitioner's Bank account, the same could

not be processed due to the fault of e-procurement system and

the petitioner could not move to the next level for uploading the

tender.

4. The petitioner therefore sent a communication

on 29.03.2025 at 12.57 pm to the 2nd respondent pointing out

that the tender documents could not be uploaded. As there was

no response, the petitioner sent yet another communication to

the 3rd respondent at 2.37 pm. The time limit in Ext.P1 for 2025:KER:39579

submission of online bid expired at 4 pm on 29.03.2025. The

petitioner states that it is due to the fault of the 3rd respondent or

the banking institution that the error crept in resulting in non

accounting of the amount remitted by the petitioner. The

petitioner therefore sought to direct respondents 1 and 2 to

accept the tender bids submitted by the petitioner pursuant to

Ext.P1.

5. The 2nd respondent resisted the writ petition.

The 2nd respondent pointed out that in the e-tenders Kerala

Portal, in the instructions part, under "Announcements" tab,

Note 5 states that bidders, who are using SBI MOPS (Multi

Optional Payment System) or other Bank's Internet Banking, are

requested to make online payments 72 hours in advance.

Sufficient time was given to the bidders. It was the

responsibility of the petitioner to upload the tender documents in

time.

6. The 2nd respondent submitted that enquiry was

made to the e-tender officials as to whether there is any option 2025:KER:39579

available in the e-tender portal to consider other bidders to an

already opened bid. They have informed that e-tender system

does not have the provision to enable the participation of a party

in a tender whose bid submission end date has elapsed and the

bid opening has done. The writ petition is totally devoid of merit

and it is liable to be dismissed.

7. I have heard the learned counsel for the

petitioner, the learned Special Government Pleader (Irrigation)

representing respondents 1 to 3 and the learned Standing

Counsel representing the 4th respondent.

8. When this writ petition came up for admission

on 04.04.2025, this Court passed an interim order directing the

2nd respondent not to finalise the tender till the date of next

hearing. The interim order was extended from time to time.

9. Ext.P1 is the notice inviting tender inviting

international competitive bidding in electronic tendering system

for selecting a contractor for awarding the desiltation works of

Mangalam Reservoir, Palakkad. Ext.P1 is dated 22.02.2025.

2025:KER:39579

The petitioner applied for the contract pursuant to Ext.P1. The

petitioner attempted to submit online tenders. The petitioner

had remitted an amount of ₹25,05,900/- through the online

portal provided by the Kerala State IT Mission.

10. The amount was debited from the account of

the Company at 11.23 am on 29.03.2025. This is evident from

Ext.P2. It is clear that the amount was deducted before 4 pm on

29.03.2025. Due to some fault in the e-procurement system,

the petitioner could not move to the next level for uploading the

tender. Ext.P3 would show that the status with respect to the

payment of EMD is shown as "pending transaction".

11. As soon as the petitioner noted this issue,

Exts.P4 and P5 e-mail communications were sent to the 2 nd and

3rd respondents before 4 pm. However, there was no response

from respondents 2 and 3. There is no serious disputes

regarding these facts. The contention of the 2nd respondent is

that in e-tenders Kerala Portal, in the instructions part, it was

specifically stated that bidders, who are using Multi Optional 2025:KER:39579

Payment System or Internet Banking System, shall make online

payments 72 hours in advance.

12. The e-tenders Kerala Portal instructions part is

not a part of tender documents or conditions. The isisue

involved is international competitive bidding. The materials

available in the writ petition would show that the petitioner had

taken all effective steps to submit the tender making the

requisite payment. It is due to some technical glitch that the

petitioner was prevented from submitting and uploading tender.

This Court has, in similar circumstances, directed the authorities

to consider the bids of similarly situated petitioners.

The writ petition is allowed. Respondents 2

and 3 are directed to permit the petitioner to submit the online

bid pursuant to Ext.P1 Notification. The 2nd respondent shall

consider the petitioner's bid along with other bids.

Sd/-

N. NAGARESH, JUDGE aks/05.06.2025 2025:KER:39579

APPENDIX OF WP(C) 13872/2025

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE INVITATION FOR BIDS WITH TENDER REFERENCE NO.

1/PQ/SE/SPC/2019-20/SL DATED 22.2.2025 ISSUED BY THE 2ND RESPONDENT

Exhibit P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE BANK ACCOUNT STATEMENT OF THE PETITIONER WITH ACCOUNT NO.006951000019 MAINTAINED IN THE 4TH RESPONDENT BANK WITH TRANSACTION DATE 29.3.2025

Exhibit P3 TRUE COPY OF THE SCREEN SHOT TAKEN FROM THE COMPUTER WITH RESPECT TO THE E- TENDERING SYSTEM WITH E-PROCUREMENT REFERENCE NO.11817532181390

Exhibit P4 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 29.3.2025 AT 12.57 P.M. SENT BY SRI. NAGENDRA PRASAD TO THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 29.3.2025 AT 2.37 P.M. SENT BY SRI. NAGENDRA PRASAD TO THE 3RD RESPONDENT

Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 31.3.2025 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 26.7.2016 IN W.P.(C) 20680 OF 2016 OF THIS HONOURABLE COURT

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED

13.6.2017 IN W.P.(C) 17721 OF 2017 OF THIS HONOURABLE COURT 2025:KER:39579

Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 27.5.2022 IN CINEOM BROADCAST INDIA LIMITED V. MUNICIPAL CORPORATION OF GREATER MUMBAI REPORTED IN 2022 KHC 4201.

Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 29.3.2019 IN AARPEE INFRA PROJECTS (P) LIMITED, NEW DELHI V STATE OF BIHAR AND OTHERS REPORTED IN 2019 KHC 3948.