Gaurav Kumar v. Food Corporation Of India & ANR

Civil Writ Petition No. 5831 of 2018 1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Civil Writ Petition No. 5831 of 2018 (O&M) Date of Decision: 3rd April, 2018 Gaurav Kumar .......Petitioner versus Food Corporation of India and another ....Respondents CORAM: HON'BLE MR. JUSTICE S.J.VAZIFDAR, CHIEF JUSTICE HON'BLE MR. JUSTICE AVNEESH JHINGAN, JUDGE

Present:

Mr. Gaurav Chopra, Advocate, Mr. Anurag Chopra, Advocate and Mr. Nippun Sharma, Advocate, for the petitioner. Mr. J.S.Puri, Advocate, for respondent No.1.

Mr. Robin Dutt, Advocate, for respondent No.2. ****
 

 
 

One Sushil Bansal carries on business in the firm name and style of the second respondent=Sushil & Company, as a sole proprietor thereof. 2.

The petitioner has challenged the award of a contract in favour of the 2nd respondent on the ground that the 2nd respondent had failed to fill in the tender document in accordance with the provisions of the Notice Inviting Tender.

3.

The first respondent invited e=tenders for appointing handling and transport contractors and road transport contractors. The petitioner and the 2nd respondent had submitted their bids. The 2nd respondent's bid was admittedly more competitive. The petitioner, however, contends that the 2nd respondent's bid is liable to be rejected on the ground that he failed to fill in a forwarding letter as required by the Notice Inviting Tenders (NIT). Clause= 3 of the forwarding letter as filled in by the 2nd respondent reads as under:=

Civil Writ Petition No. 5831 of 2018 2
       

          
                     

                  

    !        !              !

   

 !       "   # 

!     !    $ The words underlined namely "As per MTF" were filled in by hand in the space left blank in the format.

4.

Mr. Chopra, the learned counsel appearing on behalf of the petitioner submitted that the bidders were required to mention a period of 45 days in clause=3. He submitted that the words "As per MTF" did not meet the requirements of the NIT. The requirement was an essential condition and in view of non=compliance thereof, the 2nd respondent's bid was liable to be rejected.

5.

We will proceed on the basis that the requirement to fill in clause=3 correctly is an essential condition. It is, however, not necessary to indicate the period only by mentioning the number of days. Had that been so, the word "days" in clause 3 would have been added after the blank space. It is permissible for a bidder to stipulate the number of days in any manner so long as the same clearly stipulated the number of days and that the bidder was bound thereby. The question is whether the words "As per MTF" meet this requirement. We think it does.

6.

Mr. Chopra, submitted that the MTF is totally silent as to the number of days and therefore the words "As per MTF" do not indicate the number of days.

Civil Writ Petition No. 5831 of 2018 3 7.

The contention overlooks a crucial provision in the NIT. The bidders were required to submit a duly filled undertaking for Notice Inviting Tender in the prescribed format. The format stipulates certain terms and conditions including the following:=



 
  %  &   !

              '   () *            +)          ,-.

  (+ *                                  /& *

 *  &0  !

    !    '   0    123 ,4.       #!     # !           !'   / 5 0        # &0 

   $ 8.

Thus clause 15 stipulates the number of days. The initial period is 45 days which was extendable by another 30 days. What is of vital importance is the note at the end of the undertaking. The applicable MTF "Model Tender Form" was expressly incorporated in the terms and conditions. It is necessary, therefore, to read the MTF and the NIT together. So read, it is clear that the MTF itself also incorporates specifically the period of 75 days.

9.

There are two aspects that fortify this conclusion. Firstly, this is how the first respondent who invited the tenders construed the contract. Even assuming that there are two ways of construing the terms, we see no reason to reject the first respondent's construction thereof. Secondly, the petitioner himself construed the contract in the same manner. The petitioner filled in the blank space in the same clause=3 with the words "As per MTF

Civil Writ Petition No. 5831 of 2018 4 45 days". In other words, the petitioner himself construed the MTF as stipulating the period of 45 days.

10.

The petition is, therefore, dismissed.

(S.J. VAZIFDAR) CHIEF JUSTICE (AVNEESH JHINGAN) 3rd April, 2018 JUDGE ravinder Whether speaking/reasoned √ Yes/No Whether Reportable:

√Yes/No