CYBORG I T SERVICES PVT LTD Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-2-53
HIGH COURT OF UTTARAKHAND
Decided on February 25,2013

CYBORG I T SERVICES PVT LTD Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

BARIN GHOSH, J. - (1.) THERE is a prescribed procurement regulation. The same binds all the Authorities of the State in the matter of procurements to be made by the Departments headed by them. There is no dispute that these Regulations do apply to the schools. The principals of those schools are bound by the Regulations in the matter of procurements to be made by them for the schools, of which they are principals. Regulation 8 of the said Regulations makes it abundantly clear that of his own motion and at his own discretion, the principals of the schools cannot effect a purchase, which involves payment of a sum in excess of Rs. 15,000/ - for a commodity / article. It appears to be the contention of the State that 323 principals of 323 schools situate in the district of Pauri Garhwal effected purchase of a single commodity / article from the appellant worth more than Rs. 15,000/ - and purported to use public money for effecting payment therefor. No sooner such information came to the State, it issued a circular containing direction not to make payment in respect of those commodities / articles procured by those schools from the appellant. Aggrieved thereby, a writ petition was filed by the appellant, which having been dismissed, appellant is before us.
(2.) THE question before the writ Court was and which is also the question before us is, what was the commodity/article proposed to be sold or sold by the appellant to those schools. According to the appellant, it proposed to sell and, in fact, sold a software, price whereof was Rs. 14,900/ -. It is the contention of the appellant that the commodity/article of training, maintenance, support and updation cost whereof was Rs. 6,000/ - is a separate commodity/article from the software or is a service. Similarly, installation of the software, for which the price was Rs. 2,000/ -, is also a separate commodity/article or a service. At the threshold, we asked the Government to consider, whether the software, training, maintenance, support and updation thereof as well as installation of the same can be treated to be a composite one commodity/article or they are separate commodities/articles. The State Government has filed an affidavit, wherein it has stated that the software without installation is useless and no training on the software, makes the software valueless. It has opined that, accordingly, this is one item priced at Rs. 22,900/ -, but break -up thereof has been given; one for the software and other for training and last for installation. It has further been submitted that six of those schools have already made payments and while making those payments, they have made payment of Rs. 22,900/ - in four cases, Rs. 20,900/ - in one case and Rs. 14,900/ - in one case. The brochure, upon which, appellant placed reliance in the writ petition, while giving the break -up of the aggregate price of Rs. 22,900/ - did not indicate that the buyer has an option of not obtaining training, maintenance, support and updation priced at Rs. 6,000/ - or of installation priced at Rs. 2,000/ -. We, accordingly, directed the appellant to bring on record the purchase orders. Those have been brought on record. Most of the purchase orders are identically worded, but issued, as aforesaid, by 323 schools. The subject matter of those purchase orders were making of software for school management. Orders then asked the appellant to supply appropriate software for the purpose of helping preparation of staff rolls, salary bill, Accounts pay -roll and for examination. These purchase orders do not mention the software, for which a brochure had been prepared by the appellant and said to have had been circulated amongst the schools concerned. The purchase orders do not speak about the price of the software. They do not talk about installation of the software. They do not talk about training or maintenance on the software. In such a situation, it is difficult to conclusively hold that the purchase orders were for the software priced at Rs. 14,900/ - and they did not relate to whole of the offer, that was given in the brochure. As aforesaid, out of six schools, who paid for the software, four have paid not only for the software, but also for training and installation, though one has paid for the software only, but again, another has paid for the software and the training. In the brochure, it has been indicated that complete installation of the software would require maximum upto 7 to 10 days from the date of the order. In the brochure, it has been indicated that the minimum of two days training will be given indicating that such training is a requirement. The brochure, therefore, as it appears to us indicated that the software alone will not do, installation thereof and training thereon are also necessary. In consequence thereof, it would not be possible to conclusively conclude that the software was a separate commodity / article, whereas training and installation were separate therefrom. As a result, the conclusion would be that the order of the Government restraining schools from utilizing public money for payment for the articles said to have been supplied by the appellant to those schools is not interferable. Appellant effected the supplies in question not intending to do so gratuitously. Therefore, as the learned Single Judge has preserved liberty of the appellant, it can take such recourse to law as is available for recovery of the price in respect of the commodities /articles supplied by it to the independent schools. In the event, civil suits are initiated, having regard to the fact that the appellant was bonafide seeking remedy in the present proceedings, initiated in a Court having no jurisdiction, it shall, it is expected, be given appropriate benefit of Section 14 of the Limitation Act.
(3.) THE Special Appeal stands disposed of.;


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