JUDGEMENT

Usha Mehra - (1.)Defendants advertised for invitation of quotations forappointment of handling contractor at their stock yard at Allahabad. The plaintiff256 in response to the said advertisement submitted his tender in time. According tothe terms of the tender, the same was to be submitted upto 18/08/1994. Thetenders were to be valid for a period of 90 days from the date of opening of thetender. Part-1 of the tender was opened on 18/08/1994. Accordingly, thevalidity of the tender was to expire on 16/11/1994. It is further the case ofthe plaintiff that he was eligible for being considered for appointment as handlingcontractor. He had submited complete documents as per the terms of the tendernotice and also deposited the demand draft of Rs. 25,000.00 being the earnest moneyfor the tender. Plaintiff's allegations are that the defendants, deliberately with anulterior motive knowing that the plaintiff's quotation was lowest against thetenders quoted by others, did not open the tender for a considerable long period.The defendant wanted to oblige M /s S.K. Sharma, the present handling contractor.In collusion with M/s S.K. Sharma, defendant No. 3 and other members of theTender Committee tried to exclude the plaintiff from being considered as successful tenderer. The defendant No. 3 wanted to open the price bid of the othertenderers on 23/09/1994 thereby excluding the plaintiff. Finding that thename of the plaintiff was not going to be considered, the plaintiff filed a complaintwith the higher officers of the defendant No. 3. The allegations were made thatM/s S.K. Sharma was favoured by appointing him as the handling contractorinitially on ad hoc basis w.e.f. 23/05/1993 for a period of six months andthereafter defendant No. 3 in order to favour M/s S.K. Sharma did not open theprice bid tenders. Defendant No. 3 had given an undertaking to the Allahabad HighCourt that in future tenders would be invited after giving advertisement for freshtenders in order to finalise the contract within six months from 23/05/1993.Defendant No. 3 awarded on ad hoc basis the handling work to M/s S.K. Sharmaat very exorbitant rates. Therefore, it was not in their interest to open the presenttenders. When the complaint was lodged against defendant No. 3, the defendantswith ulterior motive and to favour M/s S.K. Sharma did not open the price bid. Thedefendants without communicating to the plaintiff as to whether his tender hasbeen accepted or not are now intending to float fresh tenders. By this act thedefendants would deprive the plaintiff of his right to be considered for the tenderalready furnished, which according to his estimation was the lowest tender. Thedefendant deliberately wanted the validity period of 90 days to expire on 1 6/11/1994. The present suit was filed on 15/11/1994 apprehendingthat the defendants will cancel the contract under the garb of aflux of time and thenfresh tenders would be invited. In the meantime, plaintiff would become ineligibleto apply for the tender. Had the tender been opened and the price bid also opened,it would have been clear that the plaintiff was the lowest tenderer. The defendantshave decided not to open the tender in order to allow M/s S.K. Sharma to operatehandling contract on ad hoc basis. The apprehension of the plaintiff that thedefendant would cancel the contract without assigning any reason has come outtrue. Defendant being a statutory organisation and a State covered under Article 12of the Constitution, cannot act arbitrarily, illegally nor can cancel the tenderdocuments without opening the price bid. The plaintiff has in fact quoted the rateof Rs. 51 per month for four major operations which according to the plaintiff'sestimate is almost half the rate of other tenderers quoted and definitely less thanhalf the rate at which M/s S.K. Sharma is working on ad hoc basis. Since thedefendants have deliberately not opened the price bid and allowed the tender tolapse on account of aflux of time, therefore, the plaintiff has suffered monetary lossas well as the loss in eligibility. Had the tender documents been opened and thecontract allotted, the plaintiff would have continued for four and half years andthereafter could apply for the fresh tender. That way he would have becomeeligible to file fresh offers as on 1999. But if the tenders are not opened, the plaintiffwill become ineligible in future.
(2.)It is in this background that the plaintiff filed this suit seeking relief ofdamages for depriving him the contract which he would, have got it being thelowest tenderer. He has also sought declaration that he would remain eligible inrespect of handling contract to be awarded in future. He has also sought restrainingorder against the defendants from parting with possession of the price bid whichis available with the defendants pursuant to the tender opened on 18/08/1994 and a declaration that he is eligible tenderer with the defendant No. 1 forthe purpose of considering his experience and that he would remain eligible till 5years from 25/05/1999.
(3.)The defendants filed the written statement and took preliminary objectionthat the suit does not disclose any cause of action. In fact there is no surviving causeof action to file the present suit. The validity of all the tenders including that of theplaintiff has expired on 16/11/1994. That none of the tenderers have beenawarded the contract. In terms of Clause 7.0 of the Tender Terms, all tenders wereto be kept valid for a period of 90 days from the date of opening of Part-1 of thetender. Part-1 was opened on 18/08/1994 and the price bid was to be openedwithin 90 days thereafter. Since the period was to expire on 16/11/1994,therefore, no cause of action survived thereafter. Moreover, the plaintiff made arepresentation to the Director (Commercial) of defendant No. 1 and pointed outClause 7.0 of the Tender Terms. Their tender stood withdrawn in terms thereof,hence the plaintiff's tender became non-est. The alleged representation was aclarification given by the plaintiff in regard to their tender in question. Thus theplaint does not disclose any cause of action. Besides taking legal objections,defenants also submitted their reply.
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