Madras High Court
M/S.Bag Poly International Pvt. ... vs The Tamil Nadu Civil Supplies ... on 6 May, 2022
W.A.Nos.1290 & 1301 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.05.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MRS. JUSTICE S. ANANTHI
W.A. Nos.1290 & 1301 of 2022
and
C.M.P. Nos.8157 and 8229 of 2022
M/s.BAG POLY International Pvt. Ltd.,
No.95, KM Stone,
Village Alipur Khalsa Road,
Post Box. No.30, Gharaunda,
Karnal District, Haryana - 132 114. ... Appellant in W.A.No.1290/2022
M/s.Tarpaulins India Tarp (P), Ltd.,
Represented by its Director,
264, Azad Market,
Delhi - 110 006. ... Appellant in W.A.No.1301/2022
Versus
1. The Tamil Nadu Civil Supplies Corporation,
Represented by its Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office No.12, Thambusamy Road,
Kilpauk, Chennai - 600 010. ... Sole Respondent in WA.1301/22
& 1st Respondent in WA.1290/22
2. Atul Industrial Corporation,
Plot Number 965, Dakshin Marg,
Industrial Area Phase II,
Chandigarh - 160 009.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
3. Tandhan Polyplast Private Limited,
JL-15, Kashyabpur, Uluberia - Amta Rd,
Kulgachia, Howrah,
West Bengal - 711 303. ... 2nd and 3rd Respondents in
W.A.No.1290/ 2022
Common Prayer: Writ Appeals filed under Clause 15 of Letters Patent against
the orders passed by this Court in W.P. Nos.6012 & 6011 of 2022 dated
15.03.2022.
For Appellant in
W.A.No.1290/2022 : Mr.S.T.S.Murthy
Senior Counsel
for Mr.V.P.K.Gowtham
For Appellant in
W.A.No.1301/2022 : Mr.Naveen Kumar Murthi
For Respondents in
both W.As. : Mr.R.Shanmugasundaram
Advocate General
Assisted by Mr. C. Selvaraj, AGP
and Ms. A.G.Shakeena
for R1/TNCSC
COMMON JUDGMENT
[Judgment of the court was delivered by R.MAHADEVAN,J.]
These Writ Appeals were directed against the orders dated 15.03.2022
passed by the learned Judge in W.P. Nos. 6012 & 6011 of 2022 dismissing the
writ petitions filed by the appellants herein with costs of Rs.1,00,000/- each.
2.The facts leading to the filing of these writ appeals are as follows:
2.1. The appellant in WA.No.1290 of 2022 is engaged in the
manufacture of various plastic items including LDBP (Low Density Black
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
Polyethylene) covers, being used by end users for the protection of food grains
in the open and warehouses, whereas the appellant in WA.No.1301 of 2022 is
involved in the manufacture of tarpaulins and polythene covers. While so, the
Respondent Corporation called for Short E-Tender for supply of 15000
Numbers of LDBP covers having the size of 9.8x6.4x5.2 meters with 250
Micron Thickness vide Tender Document No.NIT No.QC2/062134/2021, dated
12.01.2022. The appellants participated in the tender by making a payment of
Rs.22,50,000/- as Earnest Money Deposit and submitted their detailed bids.
However, the Respondent Corporation abruptly cancelled the said tender by
citing administrative reasons. Thereafter, the Respondent corporation, for the
second time, floated a short Re-Tender for the same specification vide Tender
Document No.NIT No.QC2/062134/2021, dated 21.02.2022. In response to the
same, the appellants submitted their bids by making another payment of
Rs.22,50,000/- towards EMD. This re-tender was also abruptly cancelled by
the Respondent Corporation.
2.2. Such being the case, the Respondent Corporation, for the third
time, floated a Short Re-Tender for supply of 15000 Numbers of LDBP (Low
Density Black Plyethylene) covers having the size of 9.8x6.4x5.2 meters with
250 Micron Thickness vide Tender Document No.NIT No.QC2/062134/2021
dated 04.03.2022 to be supplied by way of two covers i.e., (i)Techno-
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
Commercial Bid and (ii) Price Bid.
2.3. Thereafter, as a part of the price bid evaluation, the appellants
received letter Rc.No.QC2/062134/2021 dated 12.03.2022 from the Respondent
Corporation stating that the L1 bidder has offered Rs.11,880/- as their rate and
hence, the representatives of appellants were called to the office of the
Corporation on 14.03.2022 for submitting their final rate in writing. In the
meanwhile, the Respondent Corporation published the Price Comparitive
Statement in their website, wherein, it was found that the qualified bidders list
contained a blacklisted bidder and some other bidder, who did not possess prior
experience of supplying LDBP covers and similar products.
2.4. According to the appellants, the Respondent Corporation has
selected M/s. Atul Industrial Corporation as the successive L1 bidder, who was
blacklisted by the Respondent Corporation and the said fact was not disclosed
by the said bidder in their Bid document. Further, they did not possess a valid
BIS License of IS 2508:2016 as stipulated in the Tender condition. As far as
Tandhan Polyplast Private Limited, the other bidder, is concerned, it has
acquired the license only within the last 12 months and hence, the said
company also does not satisfy the experience criteria mentioned in the Tender
Documents.
2.5. The appellants further averred that the Respondent Corporation
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
without considering the above aspects, declared the said bidders as qualified in
both technical and price bid evaluation in utter disregard to their bids. In this
regard, the appellants have made representations dated 13.03.2022 to the
Respondent Corporation, but the same were not considered.
2.6. In the above circumstances, challenging the third Short Re-Tender
vide Tender Document No.NIT No.QC2/062134/2021 dated 04.03.2022 and
declaring the ineligible tenderers as successful bidders for both technical bid
and price bid, the appellants filed W.P.Nos.6012 & 6011 of 2022. The learned
Judge, upon considering the grievances espoused by the appellants, found that
the allegations levelled against the respondent Corporation are not
well-founded. While arriving at such a conclusion, the learned Judge held that
as per Section 11 of the Tamil Nadu Tender Transparency Act, an aggrieved
tenderer can file an appeal before the Appellate Authority and accordingly,
dismissed the said writ petitions by the impugned orders dated 15.03.2022 and
also imposed a cost of Rs.1,00,000/- each on the appellants, for approaching the
Court by making wild allegations, which are largely unsubstantiated. Aggrieved
by the said orders passed by the learned Judge imposing costs, the appellants
are before this court with the present Writ Appeals.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
3. Heard Mr.S.T.S.Murthy, learned Senior Counsel and
Mr.Naveen Kumar Murthi, learned counsel appearing for the respective
appellants. It is their specific contention that the second respondent in
WA.No.1290 of 2022 was a blacklisted bidder, who suffered the punishment of
blacklisting and no order was passed by the competent authorities by setting
aside the same. According to the learned senior counsel, the issue of
blacklisting is neither an arbitrable dispute nor is the Arbitrator having the
jurisdiction to decide the same in a claim regarding penalty imposed. However,
the Arbitrator has decided the issue of blacklisting as well, which is
impermissible in law and deserves to be ignored. It is also to be noted that even
in the award of the Arbitrator, the issue of blacklisting was not held in favour of
the claimant, but only to the extent that since the period of blacklisting was
over, they may be permitted to participate in the future tenders. Thus, it is
evident that the said blacklisting has not been stayed or set aside by any
competent authorities. While so, the respondent Corporation ought not to have
permitted the said blacklisted bidder to participate in the tender, especially,
when the tender conditions prohibit the same. Regarding the third respondent in
WA.No.1290 of 2022, it is submitted by the learned senior counsel that they did
not possess sufficient prior experience of having supplied LDBP covers and
they had only prior experience in supplying Tarpaulins which are a totally
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
different product made using different raw materials. However, the respondent
corporation has permitted them to participate in the tender and selected them as
qualified bidder. When those points were raised in the writ petitions by the
appellants, the learned Judge did not consider the same and erroneously,
dismissed the writ petitions, that too, with exemplary costs by observing that
the appellants were engaged in a roving enquiry and making wild allegations,
which are totally unwarranted. Therefore, the learned counsel sought to allow
these writ appeals by setting aside the orders impugned herein. However, the
learned senior counsel fairly submitted that the appellants are inclined to
approach the Appellate Authority by filing necessary appeal under section 11 of
the Act, so as to ventilate their grievances.
4. Referring to the submissions as were placed before the learned
Judge, Mr.R.Shanmugasundaram, learned Advocate General appearing for the
Respondent Corporation submitted that the learned Judge has rightly dismissed
the writ petitions as unsustainable in law especially when the appellants have
the alternative remedy of filing statutory appeal as per Section 11 of the Act of
1998. Thus, according to the learned counsel, the orders impugned herein do
not call for any interference by this court, as the Respondent Corporation has
strictly followed the conditions as stipulated in the tender notification and in
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
accordance with the provisions of the Tamil Nadu Transparency in Tenders
Act.
5. This court has considered the rival submissions and also perused
the materials available on record.
6. The orders of the learned Judge dated 15.03.2022 are assailed in
these writ appeals by the appellants, wherein, while dismissing the writ
petitions, a sum of Rs.1,00,000/- each was imposed on them, after having
observed inter alia that the appellants were engaged in a roving enquiry
without being in full possession of the requisite facts; and the action of the
appellants in approaching the court making wild allegations, is deplorable.
7. Admittedly, the tender applications submitted by the appellants
were rejected by the respondent Corporation. According to the appellants, they
are fully eligible for award of the tender, however, the respondent corporation
has shown favouritism towards ineligible bidders, which caused serious
prejudice to them. If that is so, the appellants ought to have filed appeal under
Section 11 of the Act, as the same is an efficacious alternative remedy available
to them and therefore, the invocation of discretionary remedy as conferred
under Article 226 of the Constitution of India, is not proper.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
8. The Hon'ble Supreme Court has repeatedly held that in fiscal
statutes, this rule of restraint has to be applied with utmost rigour. In this
context, in Assistant Collector of Central Excise, Chandan Nagar, West
Bengal v. Dunlop India Ltd. and others [(1985) 1 SCC 260], it was observed
by the Supreme Court as follows:
“3. ....... Article 226 is not meant to short-circuit or circumvent
statutory procedures. It is only where statutory remedies are entirely ill-suited
to meet the demands of extraordinary situations, as for instance where the very
vires of the statute is in question or where private or public wrongs are so
inextricably mixed up and the prevention of public injury and the vindication
of public justice require it that recourse may be had to Article 226 of the
Constitution. But then the Court must have good and sufficient reason to
bypass the alternative remedy provided by statute. Surely matters involving the
revenue where statutory remedies are available are not such matters. We can
also take judicial notice of the fact that the vast majority of the petitions under
Article 226 of the Constitution are filed solely for the purpose of obtaining
interim orders and thereafter prolong the proceedings by one device or the
other. The practice certainly needs to be strongly discouraged.”
9. Reiterating the principle laid down in the decision in United Bank
of India v. Satyawati Tondon and others [(2010) 8 SCC 110], the supreme
court in Authorized Officer, State Bank of Travancore and another v. Mathew
K.C. [(2018) 3 SCC 85] held as follows:
“10.In Satyawati Tondon the High Court had restrained further
proceedings under Section 13(4) of the Act. Upon a detailed consideration of
the statutory scheme under the SARFAESI Act, the availability of remedy to the
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
aggrieved under Section 17 before the Tribunal and the appellate remedy
under Section 18 before the Appellate Tribunal, the object and purpose of the
legislation, it was observed that a writ petition ought not to be entertained in
view of the alternate statutory remedy available holding: (SCC pp.123 & 128,
Paras 43 & 55)
“43. Unfortunately, the High Court overlooked the settled
law that the High Court will ordinarily not entertain a petition
under Article 226 of the Constitution if an effective remedy is
available to the aggrieved person and that this Rule applies with
greater rigour in matters involving recovery of taxes, cess, fees,
other types of public money and the dues of banks and other
financial institutions. In our view, while dealing with the
petitions involving challenge to the action taken for recovery of
the public dues, etc., the High Court must keep in mind that the
legislations enacted by Parliament and State Legislatures for
recovery of such dues are a code unto themselves inasmuch as
they not only contain comprehensive procedure for recovery of
the dues but also envisage constitution of quasi-judicial bodies
for redressal of the grievance of any aggrieved person.
Therefore, in all such cases, the High Court must insist that
before availing remedy under Article 226 of the Constitution, a
person must exhaust the remedies available under the relevant
statute.”
“55.It is a matter of serious concern that despite repeated
pronouncement of this Court, the High Courts continue to ignore
the availability of statutory remedies under the DRT Act and the
SARFAESI Act and exercise jurisdiction under Article 226 for
passing orders which have serious adverse impact on the right of
banks and other financial institutions to recover their dues. We
hope and trust that in future the High Courts will exercise their
discretion in such matters with greater caution, care and
circumspection.”
10. Such being the position of law, this court is of the opinion that the
learned Judge has rightly dismissed the writ petitions, pointing out that the
appellants ought to have filed statutory appeal, instead of filing the writ
petitions and hence, the same does not call for any interference.
https://www.mhc.tn.gov.in/judis However, as regards the imposition of costs of Rs.1,00,000/- each
W.A.Nos.1290 & 1301 of 2022
on the appellants as well as disparaging remarks, it is settled law that the same
are not to be made against the persons and authorities whose conduct comes
into consideration before the courts of law, unless it is really necessary for the
decision of the case, as an integral part thereof to animadvert on that conduct.
In the light of the said legal proposition and also having regard to the facts and
circumstances of the case coupled with the submissions of the learned senior
counsel for the appellants, touching the jurisdiction of the Arbitrator as well as
the eligibility of the parties in the tender process, this court sets aside the orders
of the learned Judge, relating to imposition of costs and grants liberty to the
appellants to agitate the rest of the issues before the Appellate Authority by
filing statutory appeal under Section 11 of the Tamil Nadu Transparency in
Tenders Act, 1998.
12. Subject to the above modification, these Writ Appeals stand
disposed of. No costs. Consequently, connected miscellaneous petitions are
closed.
[R.M.D., J.] [S.A.I., J.]
06.05.2022
Index:Yes/no
Internet: Yes/No
sra/rsh
To
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office No.12, Thambusamy Road,
Kilpauk, Chennai - 600 010.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1290 & 1301 of 2022
R. MAHADEVAN, J.
and
S. ANANTHI, J.
sra/rsh
WA Nos.1290 & 1301/2022
06.05.2022
https://www.mhc.tn.gov.in/judis
