Uttarakhand High Court
WPMB/184/2023 on 17 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (M/B) NO. 184 OF 2023
17TH AUGUST, 2023
Between:
UK Group through its Proprietor
Smt. Neelam Joshi ...... Petitioner
and
Secretary, Ministry of Culture
and another ...... Respondents
Counsel for the petitioner : Mr. Kishore Kumar and Mr. N.K.
Papnoi, learned counsels
Counsel for the respondents : Mr. Saurav Adhikari, learned
Standing Counsel for the Union of
India
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
The respondents have filed their counter-
affidavit.
2) We have heard learned counsels, and we
proceed to dispose of the petition.
3) On 28.07.2023, when we took up the matter,
we recorded some of the submissions of learned
counsels. The relevant extract of the said order, reads
as follows :
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"3. The case of the petitioner is that the
petitioner's tender has been cancelled after the
petitioner being declared as the L1 bidder, on the
ground, that the petitioner has failed to submit the
Performance Bank Guarantee (PBG) within stipulated
time.
4. The reason for cancellation disclosed on
the portal of the respondent, is as follows :
"Cancellation reason: Non-submission
of PBG within stipulated time. The
firm failed to deposit the
performance security timely and not
signed the agreement."
5. The case of the petitioners is that in the
tender there is no stipulation for submission of PBG
within a stipulated time.
6. We have repeatedly asked counsel for the
petitioner - whether there is any clause in the
tender, with regard to the submission of PBG within
a stipulated time, and he states that there is no such
clause.
7. Going by the said statement, issue notice.
8. Counsel for the respondents appears and
accepts notice.
9. He wishes to take instructions.
10. Let instructions be reported on the next
dated.
11. List the matter on 02.08.2023.
12. In the meantime, the respondents shall
not proceed to finalize the fresh tender."
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4) On 02.08.2023, when the matter was again
taken up, this Court passed the following order :
"3. Learned counsel for the respondents has
taken instructions. He candidly states that in the
tender conditions, there was no condition imposed
that the successful bidder would be required to
provide Performance Bank Guarantee (PBG).
However, it is claimed by the respondents that on
20.06.2023, the petitioner was informed of the
petitioner emerging as L1 bidder, and the petitioner
was required to submit Performance Bank Guarantee
of Rs.71,000/-, and also to execute the agreement
on revenue stamp.
4. The respondents claim that this
communication was received by one "Jyoti" - a
representative of the petitioner. Learned counsel for
the petitioner, however, submits that this
communication was never received by the petitioner.
Only the subsequent Email dated 06.07.2023 was
received and the petitioner had sought extension of
time to submit the Performance Bank Guarantee,
which was submitted on 11.07.2023. However, the
cancellation of the contract is effected on
14.07.2023, i.e. after receiving the petitioner's
Performance Bank Guarantee, which was not even
required as per the tender conditions.
5. Let the respondents file the counter-
affidavit within a week.
6. The petitioner shall deal with the specific
averments made in the counter-affidavit by filing a
rejoinder-affidavit within a week thereafter.
7. No further time shall be granted to the
parties to complete the pleadings.
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8. List on 17.08.2023 after fresh cases.
9. Interim order to continue till the next
date."
(emphasis supplied)
5) Counter-affidavit filed by the respondents does
not dispute the fact that there was no requirement in the
tender, as floated by the respondents, requiring the
successful bidder to furnish the Performance Bank
Guarantee. Inspite of that being the position, the
respondents called upon the petitioner to furnish the
Performance Bank Guarantee.
6) The case of the respondents is that the
communication requiring the petitioner to submit the
Performance Bank Guarantee was received by one
"Jyoti" - representative of the petitioner. The petitioner
disputes having received any such communication. The
petitioner, however, does not dispute that the petitioner
received an Email dated 06.07.2023, requiring the
petitioner to submit the Performance Bank Guarantee.
Thereafter, he sought extension of time to submit the
Performance Bank Guarantee - which was not even a
requirement of the tender conditions. The petitioner
eventually uploaded the Performance Bank Guarantee on
11.07.2023.
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7) The case of the respondents in their counter-
affidavit is that the Email was received after office hours,
at 05:20 P.M., on 11.07.2023. It is argued by them,
that the decision to cancel the tender has also been
taken, even though the cancellation was effected on
14.07.2023, i.e., after receiving of the petitioner's
Performance Bank Guarantee.
8) We reject the stand of the respondents, firstly,
for the reason that the petitioner's bid could not have
been cancelled on a ground, which was not available to
be raised on the basis of the terms and conditions of the
tender. Since it was not a condition in the tender /
contract, that the successful bidder has to furnish a
Performance Bank Guarantee, non-submission of the
Performance Bank Guarantee could not have been cited
as a reason to cancel the petitioner's contract, which he
was entitled to secure, in the light of the fact that he
was the L1 bidder. In any event, the Performance Bank
Guarantee was submitted by the petitioner through
Email on 11.07.2023, and the said Performance Bank
Guarantee was available with the respondents before the
issuance of the termination dated 14.07.2023. Nothing
prevented the respondents from taking notice of the fact
that the Performance Bank Guarantee had been
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furnished by the petitioner on 11.07.2023 by Email, at
05:20 P.M.
9) For the aforesaid reasons, we are of the view
that the cancellation of contract by the respondents on
14.07.2023 was completely illegal and arbitrary. We,
accordingly, set aside the said cancellation. We direct
the respondents to proceed with the contract awarded to
the petitioner. The petitioner shall be granted an
opportunity to complete all other formalities, within the
next two working days.
10) The petition stands disposed of in the
aforesaid terms.
________________
VIPIN SANGHI, C.J.
________________
RAKESH THAPLIYAL, J.
Dt: 17th AUGUST, 2023
Negi
