Uttarakhand High Court
SPA/4/2022 on 16 August, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
SPECIAL APPEAL NO. 04 OF 2022
16th AUGUST, 2022
Between:
M/s Svasca Industries (India) Ltd. ...... Appellant
and
Uttarakhand Power Corporation
Limited and others ...... Respondents
Counsel for the appellant : Mr. Davesh Bishnoi, learned
counsel
Counsel for the respondents : Mr. Dharmendra Barthwal, learned
counsel
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
The present Special Appeal is directed against
the judgment rendered by the learned Single Judge on
05.01.2022, in Writ Petition (M/S) No. 28 of 2022. The
said writ petition was dismissed by the learned Single
Judge by the impugned judgment, wherein the petitioner
has assailed its blacklisting for a period of three months
by the respondent Uttarakhand Power Corporation
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Limited on account of the failure of the petitioner /
appellant in providing the type test report within three
months from the date of issuance of the Letter of Intent.
The deadline expired on 22.08.2021.
2) The relevant facts have been taken note of in
the impugned judgment. The petitioner being covered
by the Micro, Small and Medium Enterprises
Development Act, 2006, was issued an order for supply
of 05 transformers, even though the petitioner was not
the lowest bidder. The tender conditions clearly
stipulated that the supplier should have the type test
reports in respect of the transformers that he intended
to supply. The petitioner, however, did not have the
type test reports while submitting the tender, and took
advantage of Clause 20 of the Tender Specification
which provided that the bidders who participate in the
tender process without valid type test report will have to
mandatorily provide additional security at the rate of 5%
of FOR destination price of material, including all taxes,
and will have to provide the type test report within three
months of the issuance of the Letter of Intent. The
petitioner was not able to provide the type test reports
within three months of the issuance of the Letter of
Intent. That period expired on 22.08.2021. The
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petitioner sought extension of time to submit the type
test reports on 08.09.2021, stating that he would submit
the reports by 20.10.2021. The petitioner, however, did
not submit the type test reports even by 20.10.2021.
Eventually, the respondents on 25.11.2021, cancelled
the Letter of Intent dated 25.05.2021; forfeited the 5%
additional security of Rs.15,35,000/- and; debarred the
petitioner from participating in future tenders of the
respondent Corporation for a period of one year. The
petitioner was aggrieved by the said action of the
respondents and preferred Writ Petition (M/S) No. 2534
of 2021, which was disposed of on 03.12.2021 with a
direction to the Managing Director of the Uttarakhand
Power Corporation Limited to take a decision on the
petitioner's representation within two weeks. That
representation was limited only in respect of the
blacklisting of the petitioner.
3) The petitioner's representation was thereafter
considered by the Managing Director, who passed a
fresh order of blacklisting, thereby reducing the period
from one year to three months. This order was passed
on 01.01.2022, which was put to challenge by the
petitioner in the writ petition in question. The learned
Single Judge has considered the submissions of the
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parties and he did not find any merit in the present
petition and, consequently, dismissed the same.
4) The submission of learned counsel for the
appellant is that it was on account of the lockdown
situation due to COVID-19 pandemic, which was
prevailing, that the appellant could not provide the type
test reports within three months, or even within the
extended period. The submission is that, eventually, the
appellant did provide the same to the respondent before
the cancellation of the Letter of Intent. The submission
is that in these circumstances the blacklisting of the
petitioner / appellant even for the reduced period of
three months is uncalled for, and the same had the
effect of resulting in business losses for the appellant as
other distribution companies like the Uttar Haryana Bijli
Vitran Nigam and Dakshin Haryana Bijli Vitran Nigam
have held the appellant to be disqualified on account of
the appellant's blacklisting.
5) We have considered the submissions of
learned counsel for the appellant, perused the impugned
judgment and the record, and we do not find any merit
in the same. Admittedly, the appellant was in reach of
the terms of the tender as well as the Letter of Intent.
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The appellant was well aware of the fact that since the
appellant did not have the type test reports at the time
of participating in the tender process, the appellant
would be obliged to obtain the type test reports within
three months of the issuance of the Letter of Intent.
The tender was invited during the COVID period and the
appellant should have been aware as to how much time
it would take for the appellant to obtain the type test
reports in the eventuality of a Letter of Intent being
issued to it. The appellant, however, failed to meet the
said deadline and did not submit the type test reports by
22.08.2021. Even after grant of extension of time by
nearly two months, the appellant failed to submit the
type test reports by 20.10.2021. In fact, the
cancellation of the Letter of Intent took place still a
month later, i.e., on 25.11.2021. According to the
petitioner, the test reports were submitted on 16th and
17th November, 2021, i.e., before the issuance of the
cancellation letter.
6) The respondents were not obliged to wait
unendingly for the appellant to obtain the type test
reports and, in our view, no fault can be found with the
action of the respondents in cancelling the appellant's
Letter of Intent, and subjecting the appellant to
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blacklisting which, eventually, has been reduced to only
three months. The submission of learned counsel for the
appellant that due to the said blacklisting the Dakshin
Haryana Bijli Vitran Nigam and Uttar Haryana Bijli Vitran
Nigam have disqualified the appellant, in our view, is
neither here, nor there. If, according to the appellant,
the said disqualification was wrong or illegal, it was for
the appellant to take independent action in that regard.
7) In the light of the aforesaid, we do not find
any merit in the present Special Appeal. The same is,
hereby, dismissed.
Stay Application (IA No. 01 of 2022) also
stands disposed of.
________________
VIPIN SANGHI, C.J.
__________
R.C. Khulbe, J.
Dt: 16th AUGUST, 2022
Negi
