Madhya Pradesh High Court
M/S Bdepl Acbil(Jv) vs Northern Coal Field Ltd. on 22 February, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22 nd OF FEBRUARY, 2024
WRIT PETITION No. 410 of 2024
BETWEEN:-
M/S BDEPL ACBIL(JV) A JOINT VENTURE REGISTERED
C O . THROUGH ITS AUTHORIZED SIGNATORY
SIMARDEEP SINGH BHATIA S/O PARVINDER SINGH
BHATIA AGE 34 YEARS REGISTERED ADDRESS 156,
INDIRA COMMERCIAL COMPLEX, TRANSPORT NAGAR
KORBA, CHHATTISGARH AND R/O PN 136, INDIRA
COMPLEX AND RESIDENTIAL COMPLEX, WARD NO. 9,
KORBA TP NAGAR, KORBA (CHHATTISGARH)
.....PETITIONER
(BY SHRI AKASH CHOUDHARY - ADVOCATE)
AND
1. NORTHERN COAL FIELD LTD. THROUGH ITS
CHAIRMAN CUM MANAGING DIRECTOR,
NORTHERN COALFIELDS LTD. SINGRAULI
(MADHYA PRADESH)
2. NORTHERN COALFIELDS LIMITED THROUGH ITS
GENERAL MANAGER, (CMC) R/O NORTHERN
COALFIELDS LTD, SINGRAULI (MADHYA
PRADESH)
3. M/S S.K. SAMANTA AND CO. PVT LTD KOLKATA
2/5 SARAT BOSE ROAD KOLKATA (WEST BENGAL)
.....RESPONDENTS
(SHRI NAMAN NAGRATH - SENIOR ADVOCATE WITH SHRI GREESM JAIN
FOR RESPONDENT NOS.1 & 2 AND SHRI G.N. PUROHIT - SENIOR
ADVOCATE WITH SHRI ASHISH KUMAR UPADHYAY - ADVOCATE FOR
RESPONDENT NO.3)
Signature Not Verified
This petition coming on for admission this day, Hon'ble Shri Justice
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 3/5/2024
5:53:17 PM
2
Vishal Mishra passed the following:
ORDER
The present petition has been filed seeking the following reliefs:
"(i) Summon the entire relevant record from the possession of the
court below.
(ii) Issue a writ of certiorari or any other appropriate writ and quash
and set-aside the impugned order dt. 29 December, 2023 (Annexure
P/6) and all subsequently steps taken in pursuance of the same.
(iii) Consequently, issue a Writ of mandamus, directing the
respondents to reconsider the bid of the petitioners, in accordance
with law.
(iv) Issue a writ of certiorari or any other appropriate writ including a
writ of mandamus, directing the respondent officials to consider the
candidature of the petitioner in accordance with law and take all
subsequently and ancillary steps.
(v) Award cost of the litigation in favour of the petitioner."
2. It is the case of the petitioner that the petitioner is a joint venture of two
companies; namely M/s Black Diamond Equipment Private Limited. and M/s
ACB India Limited. The respondents have floated a tender for setting up of a
coal handling plant vide Notice Inviting Tender dated 31.05.2023. In pursuance
to which, the petitioner submitted its bid on 14.07.2023. The petitioner
uploaded the required information within the time as scheduled and uploaded
the Chartered Accountant certificate issued on 20.06.2023 by a Chartered
Accountant in support of Working Capital along with Bid. The petitioner has
been declared disqualified on 29.12.2023 by the order impugned, which shows
the reason for disqualification that the petitioner does not fulfill the eligibility
criteria in terms of the NIT document.
3. It is the case of the petitioner that if the entire documents of the petitioner
are taken note of, then he is falling short of 7 days to point out his Working
Capital. The certificate issued by the Chartered Accountant was submitted by
the petitioner. It is not a case where the certificate issued by the Chartered
Accountant was found to be forged and fabricated. The petitioner is fulfilling all
the requisite criteria as per the NIT document, except the fact that eligibility
criteria for Working Capital is falling short of 7 days. But that cannot be the
sole criteria for declaring the petitioner as a disqualified candidate. In support of
his submission, he has placed reliance upon a judgment of the Hon'ble Supreme
Court in the case of Rashmi Metaliks Limited and another vs. Kolkata
Metropolitan Development Authority and others, reported in (2013) 10 SCC
4. On notice being issued, a return has been filed by the respondents
including the private respondent. It is pointed out that the petitioner was
required to submit the evidence of possessing Working Capital within three
months from the date of opening of the tender i.e. 27.03.2023 to 14.07.2023.
The document to be submitted was to be attested by a Chartered Accountant
having a valid UDIN number. Subsequent filing of the document was not
permitted in terms of condition No.12-B of the NIT which provides that "no
further document shall be sought from the Bidder". Clause 12-F provides that
"seeking clarification shall be restricted to confirmation of submitted
document/online information only." Counsel appearing for the respondents
drawing attention of this Court to Clause-C which deals with Working Capital
and other relevant provisions has submitted that the bidder was required to
furnish the information as required under Clause-C of Working Capital. He was
required to upload the certificate of Working Capital issued by a practicing
Chartered Accountant having a membership number with the Institute of
Chartered Accountants of India containing the information as furnished by
bidder online with UDIN. The petitioner has not fulfilled the aforesaid criteria
i.e. he was not having the Working Capital as required in the NIT document.
The certificate submitted by the Chartered Accountant was not having a proper
UDIN number. Therefore, the petitioner has rightly been disqualified as he is not
fulfilling the eligibility criteria as per NIT documents.
5. Heard learned counsels for the parties and perused the record.
6. Clause - C which deals with Working Capital, reads as under:
"C. Working Capital: Evidence of possessing adequate working
capital (at least 20% of Annualized value or estimated value
whichever is less) inclusive of access to lines of credit and availability
o f other financial resources to meet the requirement. The Bidder
should possess the working capital within three months prior to the
date of opening of tender.
In case of JV, the requirement of Working Capital under this clause
shall be met as per following proportion:
(i) The lead member shall have to possess at least 50% share in the
required Working Capital in order to qualify in this tender.
(ii) All other members shall have to possess at least 25% share in the
required Working Capital, in order to qualify in this tender.
In respect of the above eligibility criteria the bidders are required to
furnish the following information on-line:
(i) Amount of available Working Capital inclusive of lines of credit
and availability of other financial resources.
(ii) Date on which the Bidder possesses the required working capital.
(iii) Name of the Chartered Accountant (CA).
(iv) Membership Number of CA who certifies the Bidder's working
capital on a particular date.
(v) Date of issue of Certificate.
In case the Bidder is a Joint Venture, the working capital of the
individual partners of the JV will be added together. Technical
evaluation by the System:
(i) The system shall check that the date on which the Bidder possesses
the required working capital as well as the date of issue of certificate
is within 3 months of the date of opening of tender.
(ii) The value of working capital as certified by the CA is greater than
or equal to the minimum requirement.
(iii) In case of tender of more than one-year period of construction of
plant including trial run and performance guarantee test, the
annualised value to be worked out as under.
Annualised Value
= Estimated cost of the work (including GST) put to tender. x 365 days
Period of construction of plant including trial run and performance guarantee
test in days.
Note: The proportion of required Working Capital possessed by Lead
Member and other members shall have to be evaluated offline by the
Tender Committee till it is configured in the portal.
Scanned copy of documents to be uploaded by Bidders
(CONFIRMATORY DOCUMENT):
Certificate of Working Capital issued by a Practicing Chartered
Accountant having a membership number with Institute of Chartered
Accountants of India containing the information as furnished by
Bidder on-line with UDIN.
The Working Capital Certificate issued by CA should contain the
following important parameters in line with the information furnished
by the bidder online:
1. Name of Bidder:
2 . Amount of Available Working Capital inclusive of lines of credit
and availability of other financial resources:
S.No. Particulars Value in Rs.
Current Asset
(CA)
Current Liability
(CL)
Working Capital
(1-2)
Access to lines
of credit and
4. availability of
other financial
resources
Working Capital
inclusive of
Access of lines
5 of credit and
availability of
other financial
resources (3 4)
NOTE : 1. Access to line of Credit and availability of other financial
resources shall imply the Net availability of Funds* towards Working
Capital, as on the date on which bidder possesses working capital.
*The net availability of funds is the availability of unutilized fund."
7. The record indicates that eligibility criteria is required to be fulfilled in
terms of Clause-C dealing with the Working Capital. Admittedly, the first
certificate submitted by the petitioner issued by practicing Chartered
Accountant demonstrates that he is falling short of 7 days Working Capital as
required in the NIT document. UDIN number was found to be incorrect on
verification, although the same was subsequently corrected by the petitioner by
submitting another document duly issued by the Chartered Accountant. But in
the subsequent document also, the criteria of having Working Capital for the
relevant period, the petitioner is not fulfilling the same. He is still falling short of
7 days. Therefore, the petitioner was not fulfilling the essential criteria as
required by the NIT document. The argument advanced by the petitioner that he
is fulfilling all other eligibility criteria except that of Working Capital and he is
only falling short of 7 days, cannot be a ground to interference in tender
matters. The judgment relied upon by the petitioner in the case of Rashmi
Metaliks Limited and another (supra) will be of no help to the petitioner
especially in view of the settled principle of law, the interference in tender
matters is limited to certain extent. Hon'ble Supreme Court recently in the case
o f Tata Motors Limited Vs. Brihan Mumbai Electric Supply & Transport
Undertaking (BEST) and others reported in 2023 SCC OnLine SC 671 has
considered the factum of interference in the tender matters and has held as
under:
"48. This Court being the guardian of fundamental rights is duty-
bound to interfere when there is arbitrariness, irrationality, mala
fides and bias. However, this Court has cautioned time and again that
courts should exercise a lot of restraint while exercising their powers
of judicial review in contractual or commercial matters. This Court is
normally loathe to interfere in contractual matters unless a clear-cut
case of arbitrariness or mala fides or bias or irrationality is made out.
One must remember that today many public sector undertakings
compete with the private industry. The contracts entered into between
private parties are not subject to scrutiny under writ jurisdiction. No
doubt, the bodies which are State within the meaning of Article 12 of
the Constitution are bound to act fairly and are amenable to the writ
jurisdiction of superior courts but this discretionary power must be
exercised with a great deal of restraint and caution. The courts must
realise their limitations and the havoc which needless interference in
commercial matters can cause. In contracts involving technical issues
the courts should be even more reluctant because most of us in Judges'
robes do not have the necessary expertise to adjudicate upon
technical issues beyond our domain. The courts should not use a
magnifying glass while scanning the tenders and make every small
mistake appear like a big blunder. In fact, the courts must give "fair
play in the joints" to the government and public sector undertakings
in matters of contract. Courts must also not interfere where such
interference will cause unnecessary loss to the public exchequer. (See:
Silppi Constructions Contractors v. Union of India, (2020) 16 SCC
489)."
8. Under these circumstances, the respondents have rightly rejected the bid
of the petitioner. Therefore, no interference is called for in the present writ
petition.
9. The writ petition sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
sj
