ORDER
Dr. M.K. Sharma, J.
1. This revision petition is directed against the order dated 25.11.1997 passed by the Senior Civil Judge directing for maintenance of status quo regarding allotment of the Snack Bar in question. The respondent No.1 as plaintiff filed a suit in the Court of Civil Judge contending inter alia that the defendant No. 1/petitioner did not consider the bid of respondent No.1 for operating the Snack Bar counter on the first floor of the New Visitors Lounge at Terminal II of Indira Gandhi International Airport, New Delhi, and instead proceeded to award the contract in violation of the terms and conditions governing the tender. It was also stated that although the respondent No.1 was the highest eligible bidder for the said contract, the petitioner was contemplating to award the said contract to some other bidder whose bid was much less than that of the plaintiff. Accordingly, the respondent No.1/plaintiff sought for a decree for grant of perpetual injunction restraining the defendant from awarding the contract to any person other than the plaintiff and prayed for a mandatory injunction directing the defendant No.1 to open the envelop ‘B’ of the plaintiff and award the said contract to him. Alongwith the aforesaid suit an application under Order 39, Rules 1 and 2 was also filed by respondent No.1. The aforesaid application was taken up for consideration after the petitioner filed its written statement contending inter alia that the suit was not maintainable in view of the provisions of Sections 10, 14, 41(h) of the Specific Relief Act. In the said written statement a plea was also taken by the petitioner that the bid of the respondent No.1 was not submitted according to the terms and conditions of the tender documents and he did not fulfill the
criteria laid down in the said terms and conditions and that there was no valid offer of respondent No.1 which could be considered for acceptance and therefore, envelop `B’ of the plaintiff which contained the bid price was not opened as the envelop `A’ submitted by him was not found to contain the required documents. The Civil Judge, after considering the facts and circumstances of the case held that the respondent No. 1 failed to make out a prima facie case in his favour for grant of an ad interim injunction. It was also found by him that balance of convenience also did not lie in favour of respondent No. 1 and that he would not suffer any irreparable loss as the loss suffered could be compensated by way of damages. Having held this the Civil Judge dismissed the application under Order 39 Rules, 1 and 2 CPC.
2. Being aggrieved by the aforesaid order the respondent No.1 preferred an appeal before the Senior Civil Judge. In the said appeal filed by the respondent No.1 the Senior Civil Judge while issuing notice granted an ad interim order directing for maintenance of status quo regarding allotment of the Snack Bar in question. The petitioner being aggrieved by the aforesaid order filed the present petition under Article 227 of the Constitution of India on which notice was issued on 19.1.1998. This court by a further order directed that in the mean time implementation of the order dated 25.11.1997 would remain stayed. In the mean time the petitioner proceeded to award the contract in question in favour of respondent No. 2 and therefore, by order dated 19.3.1998 this court ordered that if the contract had been awarded the same would not be acted upon. The aforesaid order came to
be modified on an application filed by respondent No. 2 that till further orders the Canteen would be run by the contractor to whom the contract had been given by the petitioner. Pursuant to aforesaid order the respondent No.1 has been running the Snack Bar in question pursuant to award of the contract in its favour by the petitioner.
3. Mr. Y.K. Kapur, appearing for the petitioner submitted that the respondent No.1 was not found eligible in terms of the information furnished under envelop ‘A’ containing the technical bid and therefore, the envelop ‘B’ containing the financial bid of respondent No.1 was not opened. It was submitted that since the respondent No.1 did not fulfill the eligibility criteria the Appellate Court acted illegally in issuing an ad interim injunction in the present case, without giving any speaking order although the Civil Judge had given detailed reasons for rejecting the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. He also submitted that by passing the aforesaid order the Senior Civil Judge not only created a vacuum in respect of running of the snack Bar by passing the aforesaid order but also caused virtual stoppage of running of the Snack Bar which was catering to the need of the public visiting the airport
lounge. The said order, he submitted, also caused heavy financial loss for the petitioner was deprived of the right of collecting revenue and the license fee from the aforesaid Snack Bar. He also submitted that when the suit itself was not maintainable there was no question of granting any injunction in favour of respondent No.1 for issuance of such an injunction was also in violation of the provisions of the specific Relief Act. It was also submitted that at the stage when the suit was filed no contract was awarded and therefore, the respondent No.1 had no locus standi to file the suit which was in the garb of enforcement of specific performance of contract which was even otherwise not maintainable under the provisions of Specific Relief Act.
4. Mr. Rohtagi appearing for the respondent No. 2 also submitted that the suit instituted by respondent No.1 was not maintainable. He also submitted that after taking into consideration all the tenders and the experience of respondent No. 2 in the business of restaurant the petitioner by its letter dated 20.1.1998 awarded the respondent No. 2 a license for operating the Snack Bar counter in respect of which an agreement was also executed between the parties. He also supported the submissions of the counsel appearing for the petitioner and relied upon the decisions in Raunaq International Vs. IVR Constructions Ltd.; , Tata Cellular Vs. Union of India; and M/s. Classic Motors Ltd. Vs. Maruti Udyog Limited; reported in (40) 1997 DRJ 462.
5. Mr. Ravinder Sethi, appearing for the respondent No.1 on the other hand submitted that inspite of the fact that respondent No.1 had given all the necessary documents in envelop ‘A’ as per requirements of notice inviting tenders and also inspite of the fact that he was informed through various communications that opening of final bid envelop ‘B’ was being deferred, the said envelop ‘B’ filed by him was not considered in violation of the terms and conditions of the tender and the petitioner illegally proceeded to award the contract in favour of some other bidder. He submitted that as there was apparent violation of the terms and conditions of the contract he filed the aforesaid suit seeking for an injunction. He submitted that prayer for temporary injunction was illegally rejected by the trial court and was rightly granted by the appellate court. He also submitted that in spite of the fact that all the necessary conditions specified
in notice inviting tenders were satisfied by respondent No.1 and in spite of the fact that he was the highest tenderer still his tender was rejected by the petitioner which would cause loss of approximately Rs.20 lac as revenue to the petitioner. He has also drawn my attention to the comparative statement of the bidders as placed alongwith the records filed by the petitioner and drawing my attention to the contents thereof submitted that his tenders were rejected on non-existent grounds.
6. In the light of the aforesaid submissions of the counsel appearing for the parties let me consider the issue that arises for my consideration as to whether the order passed by the Appellate Court granting ad interim injunction should have been passed although the same was rejected by the trial court.
7. Tenders were invited by the petitioner for award of a license for operating the Snack Bar Counter on the first floor of new Visitors Lounge at the Indira Gandhi International Airport. In the said notice inviting tenders an eligibility criteria was laid down that the party filing the tender must be a reputed party having catering experience of atleast 3 years of running good fast food centre/cafeteria/restaurant and having minimum turn over of Rs.10 lac per annum atleast during the last financial years. It was also stated in the said notice that tenders are to be submitted in two envelops namely – envelops ‘A’ and ‘B’, envelop ‘A’ containing the technical bid and envelop ‘B’ containing the financial bid. The petitioner has placed the records indicating consideration of the various tenders submitted pursuant to the aforesaid notice inviting tender. The committee constituted for considering the tenders, considered the tender of respondent No. 2 as also of the petitioner submitted in envelop ‘A’. So far respondent No. 2 is concerned the committee found that he was the existing licensee operating the subject Snack Bar Counter and that the document submitted by it in envelop ‘A’ was found as per notice inviting tender and therefore, there was no problem with the said tenderer. So far the respondent No.1 is concerned the committee found that the experience and turn over claimed/submitted by respondent No.1 are not co-related with each other. It also found that no operating license was submitted by the agency. The committee was also in doubt as to whether the experience of running staff canteen could be considered to be sufficient experience as desired in the notice inviting tender. The committee decided to call for clarifications as stated in their report and the matter went upto the higher authorities and after a comparative study it was decided that the respondent No.1 did not fulfill the eligibility criteria. Subsequently, the petitioner held that
except for the financial bids of the respondent Nos. 1 and 3 others did not meet the norms prescribed in the tender documents. In view of the aforesaid conclusions only two tenderer were to be considered for awarding of the contract and considering the suitability the petitioner decided to award the contract in favour of the existing highest bidder namely – respondent No. 2. Subsequent to the aforesaid decision the contract was awarded in favour of respondent No. 2 and an agreement has also been executed between the parties in respect of the aforesaid Snack Bar which is also placed on record.
8. Mr. Sethi drew my attention to the comparative statement which is also placed on record and invited my pointed attention to the remarks column as appearing in column 9. In the said column it has been incorporated by the petitioner that envelop ‘B’ of the tenderer namely – the respondent No.1 was not opened due to reason indicated therein. The said reasons are recorded as, ‘relevant experience not submitted’, ‘annual turn over not attested by Chartered Accountant but attested by an Advocate’, ‘Operating license for running catering establishment not submitted’ and ‘experience claimed and turn over submitted are not co-related. He sought to submit that the last reason recorded by the petitioner itself i.e. ‘experience claimed and turn over submitted not co-related’ indicates that experience was claimed by respondent No.1 and he also submitted his turn over but the same was illegally stated to have been not furnished under the same column.
A careful scrutiny of the same would indicate that he was to furnish experience certificate apart from claiming the same. Such a certificate was not submitted as stated by the petitioner whereas the annual turn over submitted should have been attested by Chartered Accountant and not by an Advocate, as was done in his case which was not according to the norms stated in the notice inviting tender. Accordingly, therefore, it could not be said that the decision of the petitioner that the respondent No.1 did not fulfill the eligibility criteria was based on non-existent reasons. Be that as it may, at this stage however, I may make it clear that the aforesaid observations are only a prima facie view and would require a detailed investigation when the entire records are placed before the appropriate court when the suit is taken up for consideration.
9. The next question that arises is whether an injunction could or should have been granted in the instant case as was done by the Appellate Authority. Admittedly, no contract was executed either in favour of respondent No.1 or in favour of respondent No. 2 when the suit was instituted in the trial court. At that stage the respondent No.1 challenged the decision making process on the ground that the said process was not exercised in terms of the known principles. The license which was to be granted in favour of the tenderers was a license which was determinable in nature. Therefore, the provisions of Section 14 of the Specific Relief Act have relevance to the facts and circumstances of the present case. The provisions of Section 14(1)(a) of the Specific Relief Act require that if a breach of contract could be compensated by payment of damages the contract cannot be specifically enforced. Sub-section (c) thereof provides that the determinable contracts cannot be enforced by decree of specific performance. Therefore, in respect of a license which is awarded to the respondent No.1 and for preventing from awarding such a contract the aforesaid suit was instituted by respondent No.1 the provisions of Section 14(1)(c) could be made applicable. Compensation in money in the present case could be an adequate relief for the contract is of a commercial nature in which case damage could be assessed and determined. In M/s. Indian Airlines Corporation Limited Vs. Amritsar Gas Company, JT 1994 SC 604 the Supreme Court held that in respect of an agreement which is revocable by either party in accordance with clause 28 by giving 30 days notice the only relief which could be granted was award of compensation for the period of notice i.e. 30 days. It was also held by the Supreme Court that in a matter like that the relief of restoration of the distributorship even on the finding that the breach was committed by the Corporation was contrary to the mandate of Section 14(1) of the Specific Relief Act. In the context of the aforesaid case the Supreme Court held that the grant of the relief of restoration by an award could not be sustained and the same was set aside by the Supreme Court. In a matter where no final relief could be granted for enforcement of a contract no injunction could also be granted as is apparent from the provisions of Section 41 of the Specific Relief Act. Section 41 provides that an injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced and when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in the case of breach of trust.
In this connection reference may also be made to the decision of the Supreme Court in Raunaq International Ltd. (supra) wherein the Supreme Court has held that the court should weigh conflicting public interest to find if there is overwhelming public interest as against public detriment in granting the stay. It was also held therein that where as a result of the stay order public detriment outweighs public interest or benefit, person at whose instance the interim order is obtained must be made accountable and asked to reimburse the increase of cost, if any, or damages suffered by the opposite party as a result of the interim order.
10. Indeed by the order of the appellate court directing for maintenance of status quo in respect of the Snack Bar in question a vacuum has been created and the said Snack Bar Counter became non-functional. That has also caused a chain of reactions like depriving the general public from getting catering service at the Visitors Lounge and also causing loss to the public exchequer in terms of loss of revenue. The public in general who was using the services of the counter visiting the Indira Gandhi International Airport suffered due to lack of the facility available therein. Subsequent to the filing of the present petition in this court and on passing an interim order by this court allowing the respondent No. 2 to run the said counter the respondent No. 2 has been operating the said counter. In my considered opinion public interest demands that the said arrangement should be allowed to be continued till the final decision in the suit filed by respondent No.1.
11. Accordingly, I allow the petition and set aside the interim injunction granted by the Appellate Court and hold and direct that the present arrangement whereby the respondent No. 2 is operating the aforesaid Snack Bar Counter at first floor of the new Visitors’ Lounge, Indira Gandhi International Airport, New Delhi, shall continue till the decision in the suit. It is also made clear that whatever views have been expressed herein are all prima facie expressions at this stage and they should not be treated and construed as final opinion on the allegations and merits of the suit.
12. Considering the urgency in the matter and taking notice of the facts and circumstances of the case, I am of the considered opinion that the suit instituted by respondent No.1 should be disposed of as expeditiously as possible by the trial court and therefore, all steps should be taken by the trial court to dispose of the suit at an early date, even if necessary by holding day to day trial in the suit.