Orissa High Court
M/S. Nigam Suppliers vs State Of Odisha And Others on 21 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 30288 of 2023
M/s. Nigam Suppliers, Cuttack ..... Petitioner
Mrs. Pami Rath, Sr. Advocate along with
Ms. S. Gumansingh, Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. P.P. Mohanty, AGA
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
21.09.2023
Order No. This matter is taken up through hybrid mode.
01.
2. Heard Mrs. Pami Rath, learned Senior Advocate appearing
along with Ms. S. Guman Singh, learned counsel for the petitioner
and Mr. P.P. Mohanty, learned Additional Government Advocate for
the State.
3. The petitioner has filed this writ petition seeking to quash the
order dated 20.11.2020 passed by opposite party no.3 under
Annexure-9 and the order dated 30.12.2020 passed by the opposite
party no.1 under Annexure-10 to the writ petition.
4. Prima facie, as it appears though the orders have been passed
in the year 2020, the same have been challenged only in the month of
September, 2023.
5. Mrs. Pami Rath, learned Senior Advocate appearing for the
petitioner contended that due to financial crunch, the petitioner could
not file the writ petition immediately. She further contended that
pursuant to the tender call notice floated by opposite party no.4 on
04.10.2019 inviting bids from the Original Equipment Manufacturers
for supply of different equipments, the petitioner submitted its tender
for some items. The petitioner was declared as successful lowest
bidder and accordingly it was issued with work orders wherein the
last date for supply of the goods was indicated. Due to Covid-19
pandemic during that period, the business of the petitioner was
largely affected and the petitioner could not be able to manufacture
and supply the required goods to the opposite parties within the
stipulated time. Accordingly, the petitioner made a representation on
23.03.2020 to extend the date of delivery of indented goods. On
07.08.2020 the opposite parties denied to consider the request of
extension of time. In the meantime, the petitioner had already
supplied and completed the work order issued on 05.02.2020 with
respect of supply of 86 sets of CCTV surveillance system to the
opposite parties on 08.06.2020 and the opposite parties have received
the said items. But they did not pay the bills. So far as the work order
issued on 25.10.2019, the opposite parties did not extend the date of
delivery and denied to accept the finished product, which the
petitioner got from various suppliers. Accordingly, the petitioner
submitted a representation. Since no decision was taken on the same,
the petitioner approached this Court by filing W.P.(C) No. 29056 of
2020. The said writ petition was disposed of vide order dated
28.10.2020 directing the opposite parties to consider the prayer of
the petitioner for extension of date of delivery the materials keeping
in view the inconvenience caused in the movement of the human
resources during the lockdown period. But in spite of direction
issued by this Court, the opposite parties without application of
mind, rejected the claim of the petitioner vide order dated 20.11.2020
and 30.10.2020. Therefore, the said orders are liable to be quashed.
In support of her contention, she relied on the judgment of the apex
Court in the case of Rakesh Kumar Agarwal v. Jose Handicrafts,
Partnership Firm, 2016-5-L.W. 678 and ABL International Ltd and
another v. Export Credit Guarantee Corporation of India Ltd and
others, (2004) 3 SCC 553.
6. Mr. P.P. Mohanty, learned Additional Government Advocate
contended that since the petitioner has not discharged his
responsibility in accordance with law, the opposite parties did not
accept the materials supplied by the petitioner, for which the
petitioner approached this Court by filing W.P.(C) 29056 of 2020.
The said writ petition was disposed of vide order dated 28.10.2020
permitting the petitioner to pursue its remedy before the authority. In
compliance of the order of this Court, the order under Annexure-9
was passed, wherein the prayer of the petitioner was rejected.
Thereafter, opposite party no.1 communicated the same vide order
dated 30.12.2020 vide Annexure-10, under the subject redressal of
grievance against discouragements by State Police Headquarters in
supply/delivery of indented goods. Thereby, no illegality or
irregularity has been committed by passing the orders impugned so
as to cause interference by this Court at this stage. That apart the
impugned orders having been passed in the year 2020, i.e. on
20.11.2020 and 30.12.2020 under Annexures-9 and 10 respectively
and the petitioner has approached this Court by filing the present writ
petition only on 13.09.2023, thereby, there is gross delay in
approaching this Court and more so, in the event this Court will
entertain the writ petition, the petitioner may get some monetary
benefit. Therefore, instead of approaching this Court, the petitioner
should have approached the appropriate forum claiming monetary
benefits. Therefore, he prayed for dismissal of the writ petition at
that score also.
7. Having heard learned counsel for the parties and after going
through the records, it appears that tender call notice no.139-D and
its Corrigendum Notice No. 163-D was published in leading regional
and English newspapers on 04.10.2019 and 31.10.2019 for
procurement of different equipments, furniture and other articles like
Arms Modular Stand (Rack), Steel Table, Steel Rack, Tubular
Folding Steel Bed Cots, Mobile Water Filtration System, Mobile
Water Cannon, CCTV Surveillance System, Crime Scene Scanner,
Collapsible Modular Equipment & Iron Framed Road Barrier for
utilization of funds under State Budget Grant & Modernization of
Police Scheme during the financial year, 2019-2020. Different firms
including the petitioner's firm were awarded contracts for supply of
various items for procurement to utilize the funds within the
financial year, 2019-2020. Last date for supply of steel table, Tubular
Folding Steel bed cot & CCTV for M/S Nigam Suppliers were on
29.02.2020, 05.012020 & 25.03.2020, much prior to start of lock
down. Whereas the Nationwide Lockdown was started from 25th of
March, 2020. The firm has supplied a partial quantity or no quantity
of articles as mentioned in the order and failed to supply articles in
full within stipulated period which was prior to lockdown, violating
the tender condition 44. The said condition has clearly stated that the
suppliers had to supply the indent within the time specified in the
supply order. Be that as it may, challenging the action of the opposite
parties in not accepting the materials supplied by it, the petitioner
had approached this Court by filing W.P.(C) No. 29056 of 2020.
The said writ petition was disposed of vide order dated 28.10.2020
with the following observation and direction:-
"After hearing the learned A.G.A. for the State- opposite
parties and considering the limited nature of grievance of the
petitioner as well as the inconvenience caused due to
lockdown situation, we are inclined to dispose of the writ
petition at this stage directing opposite party no.2 to consider
the prayer of the petitioner for extension of delivery date of
the materials keeping in view the inconvenience caused in the
movement of the human resources during the lockdown
period. The petitioner shall produce a copy of this order
before opposite party no.2 within a period of ten days from
today along with a copy of the writ petition and all the
annexures, which shall be considered as the representation
and disposed of by opposite party no.2 in the light of the
above direction within twenty one days from the date of
receipt. It is made clear that we have not expressed any
opinion on merits of this case."
8. In compliance to the said order of this Court, the opposite
party no.3 examined the case of the petitioner and passed the order
dated 20.11.2020 rejecting the representation of the petitioner with
the following observation:-
"In the meantime, the configuration of CCTV System was
changed based on field requirement and new configuration is
not matching configurations proposed in tender. Owing to
Non supply of indented quantity within the stipulated time
and change in composition/configuration of CCTV system, it
is not possible to continue with the same tender after
cancellation of tender. Change in requirement of CCTV
necessitated floating of fresh bid in Govt E Marketplace GeM
a mandatory platform for procurement by Govt Departments.
In view of facts mentioned above ,the writ petition filed
by M/s, Nigam Suppliers, Cuttack as representation praying
to quash the impugned order No. 27052/Supply
dtd:07.08.2020 (Annexure-4) i.e. to reject the request for
extension of delivery date beyond 25.012020, to accept the
tendered materials in terms of the different work order issued
to the petitioner and make necessary payment against the
tender material with a reasonable time is not tenable.
Considering the prayer of the petitioner in compliance to
order of the Hon'ble Court. I am satisfied that the
inconvenience alleged to have been caused to the petitioner
owing to Lockdown/ Shutdown of COVID-19 pandemic was
not the responsible reason for non supply of materials as
mentioned above. Such version of the petitioner is premature
in as much as Lock down/ shut down was notified 25th of
March-2020 for the first time. By the said date, the stipulated
period had already been elapsed for nonperformance of its
part of contract, Police department not only suffered from
lack of resources to combat maoist operations but also was
deprived of the additional budgetary provision jeopardizing
public interest to the largest extent. The loss is irreparable in
nature and hence the petitioner does not deserve any
leniency.
Therefore, the representation of the petitioner for the
above is hereby rejected, being devoid of any merit.
9. In view of such position, this Court does not find any error
apparent in the order dated 20.11.2020, which has been passed in
compliance of the order of this Court dated 28.10.2020 passed in
W.P.(C) No. 29056 of 2020. After disposal of the representation of
the petitioner, the consequential order dated 30.12.2020 was passed
indicating therein that the petitioner has not adhered to the terms and
conditions of the tender and as such, rejected the claim of the
petitioner.
10. Reliance has been placed by learned counsel for the petitioner
to the decision of the High Court of Judicature at Madras in the case
of Rakesh Kumar Agarwal (supra) wherein it has been held that the
conduct of defendants in accepting delivery without any demur,
established factum of waiver or time limit by defendants as set out in
contract. Time is not essence of contract, which is extended by
mutual consent. In the context of sale of goods, if the delivery was
not effected in time as per purchase order, contract is always
voidable. If the purchaser failed to repudiate contract in time, it can
be inferred that purchaser kept contract alive, which proves that time
was not essence of the contract .
11. But factually the present case is totally different from that of
the case cited above. More so, if the conditions stipulate that the
petitioner has to supply the items and the date has been fixed for the
same, the same having not been supplied within the time stipulated,
that itself indicates that the petitioner has violated the conditions
stipulated in the tender. More so, knowing fully well that the
petitioner has violated the terms and conditions of the contract, the
petitioner had approached the opposite parties by filing
representation, and thereafter approached this Court praying for
disposal of such representation. This Court directed the opposite
parties for disposal of the representation. Accordingly the disposal
was made and the impugned orders were passed. Therefore, at this
stage, the petitioner is precluded to take a stand that its case is
covered by the decision in the case of Rakesh Kumar Agarwal
(supra).
12. So far as the applicability of ABL International Ltd. (supra) is
concerned, much reliance has been placed on paragraph-27 of the
said judgment, wherein it has been held as follows:-
"From the above discussion of ours, following
legal principles emerge as to the maintainability of a writ
petition :-
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of facts
arise for consideration, same cannot be a ground to
refuse to entertain a writ petition in all cases as a
matter of rule.
(c) A writ petition involving a consequential relief of
monetary claim is also maintainable."
13. Citing the above decision learned Senior Advocate for the
petitioner contended that this writ petition is maintainable. But fact
remains the petitioner has not complied with the terms and
conditions of the contract and since the dispute arises out of a
contractual matter, this writ petition is not maintainable. Otherwise
also this writ petition suffers from delay and laches as because the
rejection of the representation was made on 20.11.2020 and this writ
petition has been filed after a long lapse of more than two and half
years. Therefore, this Court is not inclined to entertain this writ
petition. But, it is open to the petitioner to pursue its remedy before
the appropriate forum, if it is so advised.
14. With the aforesaid observation, this writ petition stands
disposed of.
(DR. B.R. SARANGI)
JUDGE
Arun (M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 22-Sep-2023 17:07:57
