{"id":237991,"date":"2009-02-10T00:00:00","date_gmt":"2009-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-ms-zoom-developers-p-ltd-ors-on-10-february-2009"},"modified":"2016-06-09T17:13:18","modified_gmt":"2016-06-09T11:43:18","slug":"state-of-kerala-vs-ms-zoom-developers-p-ltd-ors-on-10-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-ms-zoom-developers-p-ltd-ors-on-10-february-2009","title":{"rendered":"State Of Kerala vs M\/S Zoom Developers P.Ltd.& Ors on 10 February, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Kerala vs M\/S Zoom Developers P.Ltd.& Ors on 10 February, 2009<\/div>\n
Author: S Kapadia<\/div>\n
Bench: Arijit Pasayat, S.H. Kapadia<\/div>\n
                             IN THE SUPREME COURT OF INDIA\n                   CIVIL APPELLATE JURISDICTION\n                    CIVIL APPEAL NOS. 841-842 \/2009\n               (arising out of SLP(C) Nos. 30204-30205\/2008)\n\n State of Kerala                                    ... Appellant(s)\n\n      versus\n\n M\/s Zoom Developers Pvt. Ltd. & Ors.               ... Respondent(s)\n\n                                 with\nCivil Appeal No.843 \/2009 (arising out of S.L.P.(C) No. 30305\/2008) and\n   Civil Appeal No.844\/2009 (arising out of S.L.P.(C) No. 30355\/2008)\n\n\n                            JUDGMENT\n<\/pre>\n
 S.H. KAPADIA, J.\n<\/p>\n<\/p>\n
         Leave granted.\n<\/p>\n<\/p>\n
 2.      A short question which arises for determination in these civil<\/p>\n
 appeals is – whether the decision of the Bid Evaluation Committee<\/p>\n
 (“EC” for short) dated 6.5.2008 rejecting the Bid Proposal made by<\/p>\n
 the Consortium led by M\/s Zoom Developers           Pvt. Ltd. as non-<\/p>\n
 admissible in terms of RFP and thus excluding the said Consortium<\/p>\n
 from the zone of consideration was unjustified, arbitrary and bad in<\/p>\n
 law, as held by the impugned judgment of the Kerala High Court<\/p>\n
 dated 4.12.2008 in Writ Appeal No. 1460\/2008.\n<\/p>\n
Facts:\n<\/p>\n<\/p>\n
3.    Government of Kerala (GoK) vide G.O. No. 9\/07\/F&PD dated<\/p>\n
9.3.2007 decided to invite bids for the Development of International<\/p>\n
Deepwater Seaport and Container Transshipment Terminal at<\/p>\n
Vizhinjam under Public-Private Partnership. Vide G.O. dated<\/p>\n
15.6.2007 GoK decided on the key provisions in the Request For<\/p>\n
Proposal (“RFP” for short) documents for the bidding of the above<\/p>\n
Project. A competitive bid process was thus initiated by M\/s<\/p>\n
Vizhinjam International Seaport Ltd. (“VSL” for short). VSL was the<\/p>\n
Sponsor. IL & FS Infrastructure Development Corporation (“IDC” for<\/p>\n
short) was the Project Advisor. Accordingly, on 8.8.2007, Press<\/p>\n
Notification was issued by M\/s VSL inviting RFP for the<\/p>\n
development of the Project. On 23.1.2008 a Bid Opening Committee<\/p>\n
was constituted vide G.O. of the same date. Thirty-three firms<\/p>\n
obtained the RFP documents. Vide G.O. dated 19.2.2008, Bid<\/p>\n
Evaluation Committee headed by the Chief Secretary was also<\/p>\n
constituted to Evaluate the Bid Proposals. Ultimately, bids were<\/p>\n
received from the following five Consortia by 31.1.2008 (which was<\/p>\n
the last date stipulated for receiving the Bids), they were:\n<\/p>\n
(i)     Apollo Enterprises led consortium\n(ii)    Nagarjuna Construction Co. led consortium\n(iii)   Videocon Industries Ltd. led consortium\n(iv)    Lanco Kondapalli Power Pvt. Ltd., Hyderabad, led consortium\n(v)     Zoom Developers Pvt. Ltd., Mumbai led consortium.\n\n\n\n<\/pre>\n
4.      The bidders were required to submit their proposals in four<\/p>\n
covers, namely, the Outer Cover (containing details of the bidder,<\/p>\n
power of attorney in favour of the lead member, consortium<\/p>\n
agreement entered amongst the members of the consortium, legal<\/p>\n
opinion, security of Rs. 50 million in the form of bank guarantee etc.),<\/p>\n
Cover-1 (Statement of Qualification), Cover-2 (Technical Proposal)<\/p>\n
and Cover-3 (Financial Proposal). In this case, evaluation was done in<\/p>\n
three stages. In the first stage, there was evaluation of Outer Cover<\/p>\n
and Cover-1 to check the admissibility of bids and evaluation of<\/p>\n
qualifications as stipulated in the RFP. It may be noted that<\/p>\n
evaluation of the Technical Proposal had to be done only of those<\/p>\n
bidders who met the “Qualification Criteria” (vide second stage). The<\/p>\n
third stage contemplated evaluation of the Technical Proposal. As<\/p>\n
stated above, only five bids were received. These bids (Outer Cover<\/p>\n
and Cover-1) were opened on 31.1.2008 by the Bid Opening<\/p>\n
Committee. The said firms were found to have satisfied prima facie<\/p>\n
the requisite requirements. The bids were accepted by the Bid
\nOpening Committee for further scrutiny. The bids submitted were<\/p>\n
considered at the meeting of the EC on 25.2.2008. In the said meeting<\/p>\n
it was observed that, with regard to the bid submitted by the<\/p>\n
consortium led by M\/s Zoom Developers Pvt. Ltd. (“ZDL” for short),<\/p>\n
the Power of Attorney and the Consortium Agreement were<\/p>\n
unstamped and they needed to be stamped. It was further pointed out<\/p>\n
by the EC that the lead member in terms of the RFP, namely, M\/s<\/p>\n
ZDL was required to hold a minimum equity of 26% in the Special<\/p>\n
Purpose Company (“SPC” for short), which has not been expressly<\/p>\n
mentioned in the Consortium Agreement. The EC further pointed out<\/p>\n
to M\/s ZDL that one of the consortium member, namely, M\/s Portia<\/p>\n
Management Services Ltd. (“PMS” for short) had signed the<\/p>\n
consortium agreement on behalf of Peel Ports Ltd. (“PPL” for short)<\/p>\n
but M\/s PPL is not a member of the consortium. Additional<\/p>\n
information regarding the financials of M\/s PMS (on its own) and of<\/p>\n
M\/s ZDL were also called for. On 25.2.2008, accordingly the EC<\/p>\n
granted ten days time to remove the above defects. M\/s ZDL sought<\/p>\n
extension of time. Ultimately, time was extended up to 4.4.2008. In<\/p>\n
short, meetings of the EC took place on 25.2.2008, 13.3.2008,<\/p>\n
8.4.2008 and 6.5.2008. By 2.4.2008, M\/s ZDL submitted all the
\nrelevant documents duly updated. It may be noted that M\/s Universal<\/p>\n
Legal, Bangalore, were appointed as Legal Advisor of the Project by<\/p>\n
the EC.\n<\/p>\n
5.    As stated above, on 2.4.2008 M\/s ZDL submitted their<\/p>\n
modified documents. On 4.4.2008 the said M\/s Universal Legal<\/p>\n
furnished their opinion that the Consortium Agreement submitted by<\/p>\n
the Consortium led by M\/s ZDL had complied with the requirements<\/p>\n
of the RFP and that they had removed all defects pointed out to them<\/p>\n
by the EC and accordingly the EC may consider their Bid Proposals.<\/p>\n
However, in the third meeting held on 8.4.2008, the EC after having<\/p>\n
considered the documents submitted by the Consortium led by M\/s<\/p>\n
ZDL came to the conclusion that in the modified consortium<\/p>\n
agreement dated 11.3.2008, M\/s PMS has signed the consortium<\/p>\n
agreement on its own whereas in its original consortium agreement<\/p>\n
dated 4.10.2007, M\/s PMS has signed the consortium agreement on<\/p>\n
behalf of M\/s PPL. Accordingly, the opinion of the Law Secretary<\/p>\n
(Invitee to the Meeting) was sought. The Law Secretary opined that<\/p>\n
the modified consortium agreement dated 11.3.2008 cannot be treated<\/p>\n
as a part of the Original Proposal as the modified consortium<\/p>\n
agreement stood entered into by a new member, namely, M\/s PMS,<\/p>\n
without the authorization of M\/s PPL. According to the Law
\nSecretary, there was one more defect. There was no provision in the<\/p>\n
modified consortium agreement to the effect that the consortium<\/p>\n
members shall be jointly and severally liable for the execution of the<\/p>\n
Project and that the only expression used was joint and several<\/p>\n
“responsibility”, which, according to the Law Secretary, was a<\/p>\n
concept different from joint and several “liability”. This opinion of<\/p>\n
the Law Secretary was placed before the EC in its meeting held on<\/p>\n
6.5.2008 in which meeting the EC concluded that the Bid submitted<\/p>\n
by the consortium led by M\/s ZDL was “non-responsive”\/”non-<\/p>\n
admissible” in terms of the RFP. Accordingly on 24.5.2008, GoK<\/p>\n
issued Government Order approving the proposal given by Lanco<\/p>\n
Kondapalli Power Pvt. Ltd., Hyderabad (hereinafter referred to as<\/p>\n
“Lanco led Consortium”). Thus, the Bid Proposal of the consortium<\/p>\n
led by M\/s ZDL came to be rejected.\n<\/p>\n
6.    Aggrieved by the said decision, M\/s ZDL preferred Writ<\/p>\n
Petition (C) No. 15570\/2008 in the Kerala High Court which came to<\/p>\n
be dismissed by the learned single Judge on 3.7.2008. It was held by<\/p>\n
the learned Single Judge that the concept of “liability” was different<\/p>\n
from “responsibility”. It was further held that since the consortium<\/p>\n
members led by M\/s ZDL had not undertaken “joint and several
\nliability”, the EC was right in treating the bid proposal as non-<\/p>\n
responsive. It was further held by the learned single Judge that the<\/p>\n
original consortium agreement dated 4.10.2007 was signed by M\/s<\/p>\n
PMS on behalf of M\/s PPL though no such authorization was found<\/p>\n
in that regard. According to the learned single Judge, in the modified<\/p>\n
consortium agreement dated 11.3.2008, M\/s PPL, which was the party<\/p>\n
to the original consortium agreement, stood deleted and M\/s PMS had<\/p>\n
emerged as a member of consortium for the first time only under the<\/p>\n
modified consortium agreement dated 11.3.2008 without explaining<\/p>\n
under whose authority such change was made and consequently, the<\/p>\n
EC was right in treating the Bid Proposal made by M\/s ZDL as non-<\/p>\n
responsive. Accordingly, the writ petition stood dismissed. Aggrieved<\/p>\n
by the said decision, M\/s ZDL preferred Writ Appeal No. 1460\/2008,<\/p>\n
which stood allowed by the Division Bench of the Kerala High Court,<\/p>\n
hence, these civil appeals are filed by the State of Kerala (licensor),<\/p>\n
M\/s Lanco Kondapalli Power Pvt. Ltd. and M\/s Vizhinjam<\/p>\n
International Sea Port Ltd. (Sponsors).\n<\/p>\n
Contention:\n<\/p>\n
7.    On behalf of State of Kerala, Shri K. Parasaran, learned senior<\/p>\n
counsel submitted that after 31.1.2008 (the cut-off date) there was a<\/p>\n
change in M\/s ZDL led Consortium which was impermissible in<\/p>\n
terms of the RFP and, therefore, the Bid Evaluation Committee was<\/p>\n
right in treating the Bid submitted by M\/s ZDL led Consortium as<\/p>\n
non-responsive\/non-admissible in terms of the RFP. In support of his<\/p>\n
contention, learned senior counsel submitted that as per clause 3.4 of<\/p>\n
RFP, only the Lead Member could be changed and that too with the<\/p>\n
written consent of M\/s VSL (Sponsor). According to the learned<\/p>\n
counsel, RFP did not permit change of consortium member after the<\/p>\n
cut-off date. It may be noted that the Proposals of the Bidders were to<\/p>\n
be submitted on or before 31.1.2008. Learned counsel pointed out<\/p>\n
that along with the Proposal, M\/s ZDL submitted the Consortium<\/p>\n
Agreement dated 4.10.2007 in which M\/s PMS signed the consortium<\/p>\n
agreement on behalf of M\/s PPL, UK. Therefore, according to the<\/p>\n
learned counsel, M\/s PMS singed the Consortium Agreement dated<\/p>\n
4.10.2007 as an agent of M\/s PPL, UK. According to the learned<\/p>\n
counsel, in the Consortium Agreement dated 4.10.2007, M\/s ZDL did<\/p>\n
not stipulate that as a Lead Member it would hold a minimum equity<\/p>\n
of 26% in the SPC. The Consortium Agreement dated 4.10.2007 was
\nnot notarized and stamped. That apart, the said consortium did not<\/p>\n
submit documents from M\/s PPL, UK authorizing M\/s PMS to sign<\/p>\n
the Consortium Agreement on behalf of M\/s PPL, UK. According to<\/p>\n
the learned counsel, all the above circumstances came to be<\/p>\n
considered by the EC in its meeting held on 25.2.2008. The EC,<\/p>\n
according to the learned counsel, recorded in its Minutes that since<\/p>\n
M\/s PPL was the member of the Consortium in terms of Consortium<\/p>\n
Agreement dated 4.10.2007, but, since M\/s PPL was not shown in the<\/p>\n
Outer Cover, therefore, a query was raised by the EC in its letter<\/p>\n
dated 3.3.2008 to the effect that although M\/s PMS has signed the<\/p>\n
Consortium Agreement on behalf of M\/s PPL, the latter was not a<\/p>\n
member of the Consortium. According to the learned counsel, in the<\/p>\n
said letter dated 3.3.2008, there was no direction from the EC to M\/s<\/p>\n
ZDL to delete the words “on behalf of M\/s PPL” and consequently,<\/p>\n
after the cut-off date, it was not open to M\/s ZDL led Consortium to<\/p>\n
submit a fresh Consortium Agreement dated 11.3.2008 deleting the<\/p>\n
words “on behalf of M\/s PPL”. According to the learned counsel,<\/p>\n
therefore, there was a change in the membership of the Consortium<\/p>\n
led by M\/s ZDL and that too after 31.1.2008. Therefore, according to<\/p>\n
the learned counsel, it was not a case of curing of defect. According
\nto the learned counsel, change of consortium membership after the<\/p>\n
cut-off date made the Proposal of M\/s ZDL led Consortium non-<\/p>\n
admissible in terms of the RFP.\n<\/p>\n<\/p>\n
8.       Shri K. Parasaran, learned senior counsel, next contended that<\/p>\n
vide clause 3.5 of the RFP, all members of the Consortium were<\/p>\n
“jointly and severally liable” for execution of the Project in terms of<\/p>\n
the Licence Agreement and a statement to that effect was required to<\/p>\n
be stated in the consortium agreement, which statement was not<\/p>\n
incorporated in consortium agreement dated 4.10.2007 nor in the<\/p>\n
consortium agreement dated 11.3.2008. According to the learned<\/p>\n
senior     counsel,   the   two   words,   namely,   “liabilities”   and<\/p>\n
“responsibilities” are not interchangeable. They are distinct and<\/p>\n
different concepts. According to the learned counsel, RFP required a<\/p>\n
statement regarding “joint and several liability” to be incorporated in<\/p>\n
the consortium agreement because the word “liability” represented an<\/p>\n
objective criteria, which criteria has not been satisfied despite<\/p>\n
opportunity being given to M\/s ZDL led Consortium to incorporate<\/p>\n
such a statement in the consortium agreement. Learned counsel<\/p>\n
submitted that despite opportunity being given to M\/s ZDL led<\/p>\n
Consortium, even in the fresh Agreement dated 11.3.2008, M\/s ZDL
\nled Consortium had insisted on using the words “joint and several<\/p>\n
liabilities” in support of the words “joint and several responsibilities”.<\/p>\n
Therefore, for non-compliance of the said criteria, the EC was right in<\/p>\n
treating the Bid Proposal of M\/s ZDL led Consortium as non-<\/p>\n
admissible\/non-responsive in terms of RFP.\n<\/p>\n
9.    In short, on two of the aforestated grounds, namely, change of<\/p>\n
consortium membership and non incorporation of joint and several<\/p>\n
liability Clause in the consortium agreement, learned counsel for the<\/p>\n
State of Kerala submitted that the EC was right in treating the Bid<\/p>\n
Proposal of M\/s ZDL as non-responsive.\n<\/p>\n
9A.   Shri A. Sharan, learned Additional Solicitor General appearing<\/p>\n
on behalf of M\/s VSL substantially adopts the contentions advanced<\/p>\n
by Shri K. Parasaran, learned senior counsel for the State of Kerala.<\/p>\n
10.   Shri K.K. Venugopal, learned senior counsel appearing on<\/p>\n
behalf of M\/s Lanco led Consortium submitted in addition to the<\/p>\n
above contentions that, in any event, the figures submitted by M\/s<\/p>\n
ZDL led Consortium indicated that, on its own M\/s PMS did not<\/p>\n
fulfill the financial parameters of net worth, total turnover and cash<\/p>\n
accruals and that M\/s PMS was solely dependent upon the financials
\nof M\/s PPL, UK, consequently, the Bid Proposal of M\/s ZDL led<\/p>\n
Consortium was not admissible in terms of RFP. Learned senior<\/p>\n
counsel further submitted that in the Consortium Agreement dated<\/p>\n
4.10.2007, there was a clause under the caption “Relationship of<\/p>\n
Parties”. Reading of that clause, according to the learned counsel,<\/p>\n
indicated that the consortium members were to act on principal-to-<\/p>\n
principal basis and despite opportunity, even in the fresh Consortium<\/p>\n
Agreement dated 11.3.2008, the said clause stood retained. Therefore,<\/p>\n
according to the learned counsel, the criteria of joint and several<\/p>\n
liability was not satisfied by M\/s ZDL led Consortium.<\/p>\n
11.   On the other hand, it was submitted on behalf of M\/s ZDL led<\/p>\n
Consortium that the interpretation given by the Sponsor\/Advisor on<\/p>\n
various terms and conditions of the RFP should be read as a standard<\/p>\n
to evaluate the admissibility of the bids. According to Shri Harish N.<\/p>\n
Salve, learned senior counsel appearing on behalf of M\/s ZDL, the<\/p>\n
Minutes of the EC held on 25.2.2008 indicated that the words<\/p>\n
“responsibility” and “liability” were used interchangeably. That, it is<\/p>\n
only after the Law Secretary gave his opinion that the question of the<\/p>\n
connotation of the two words “liability” and “responsibility” were<\/p>\n
made an issue, which was clearly an afterthought. According to the
\nlearned counsel, the said hair-splitting exercise was undertaken as an<\/p>\n
afterthought only after the Law Secretary gave his opinion, which<\/p>\n
opinion was “off the record” advice (which expression is used by the<\/p>\n
Law Secretary in his affidavit). According to the learned counsel,<\/p>\n
there was no change in the membership of the Consortium led by M\/s<\/p>\n
ZDL because right from the inception, at the time of submitting the<\/p>\n
Proposals, it was made clear that M\/s PMS would be the member of<\/p>\n
M\/s ZDL led Consortium. It was submitted that M\/s PMS was the<\/p>\n
subsidiary of M\/s PPL, UK, and the words “on behalf of” were used<\/p>\n
in the Consortium Agreement dated 4.10.2007 only to indicate the<\/p>\n
relationship between M\/s PMS and M\/s PPL, UK. This position,<\/p>\n
according to the learned counsel, is indicated by the Bid documents<\/p>\n
submitted on 31.1.2008, Power of Attorney dated 18.10.2007, Notary<\/p>\n
Certificate, Covering letter dated 31.1.2008 and annexures to the Bid<\/p>\n
documents submitted by M\/s ZDL.\n<\/p>\n
12.   On the question of financials, Shri Arun Jaitley, learned senior<\/p>\n
counsel for M\/s ZDL, submitted that the Chart submitted before this<\/p>\n
Court by the learned counsel for M\/s Lanco led Consortium was<\/p>\n
defective because the Financials for FY 2006-2007 has not been<\/p>\n
projected. In this connection, it was pointed out that M\/s ZDL had
\nsubmitted the details for FY October, 2003 to September, 2004,<\/p>\n
October, 2004 to September, 2005 and October, 2005 to September,<\/p>\n
2006 as on 31.1.2008. It was pointed out that, M\/s ZDL was<\/p>\n
following the Accounting Year from October to September. It was<\/p>\n
submitted that the last date for submission of Bids was 31.10.2007<\/p>\n
initially, which stood extended later on till 31.1.2008. According to<\/p>\n
the learned counsel, the Balance Sheet for FY 2006-2007 was in the<\/p>\n
process of being prepared when the Bid documents were submitted on<\/p>\n
31.1.2008 and consequently, the Balance Sheet for FY 2006-2007<\/p>\n
could not be submitted. According to the learned counsel, if the<\/p>\n
Financials for the year including FY 2006-2007 are taken into<\/p>\n
account, then M\/s ZDL lead Consortium satisfies all the financial<\/p>\n
parameters of net worth, turnover and cash accruals.<\/p>\n
13.   Points for Consideration:\n<\/p>\n<\/p>\n
      (A)   Whether the modified Consortium Agreement<\/p>\n
            dated 11.3.2008 resulted in a change in the<\/p>\n
            constituents membership of the Consortium led by<\/p>\n
            M\/s ZDL.\n<\/p><\/blockquote>\n
      (B)   Whether use of the expression “joint and several<\/p>\n
            responsibility” in place of “joint and several<\/p>\n
            liability” would justify rejection of the Bid<\/p>\n
            Proposal made by the Consortium led by M\/s ZDL<\/p>\n
            as non-responsive\/non-admissible in terms of the<\/p>\n
            RFP.\n<\/p>\n
\nFindings on Point No. (A):\n<\/p>\n<\/p>\n
14.   As per the scheme of RFP, at the stage of Submission of<\/p>\n
Proposals, the bidders were required to furnish the names of the Lead<\/p>\n
Member and other members of the consortium. In this case, one of the<\/p>\n
members of the consortium was M\/s PMS. While furnishing “Details<\/p>\n
of Bidders”, the name of the consortium member was shown as PMS.<\/p>\n
Similarly, against the column “Brief Description of the Company”,<\/p>\n
the name of M\/s PMS was mentioned as the international arm of M\/s<\/p>\n
PPL. Therefore, at the stage of Submission of Proposals, M\/s ZDL<\/p>\n
had stated that M\/s PMS was the member of its Consortium. There<\/p>\n
was one more column which was required to be filled-in by the<\/p>\n
bidders, namely, “Ownership of the Organisation”. In this column,<\/p>\n
M\/s ZDL indicated that M\/s PMS was a consortium member which
\nwas the wholly subsidiary company of M\/s PPL, UK. It may be noted<\/p>\n
that, under the Scheme of RFP, the bidders had to offer a firm<\/p>\n
commitment to form SPC to implement and operate the above Project<\/p>\n
in Kerala, should the Sponsor (M\/s VSL) select one of the five<\/p>\n
bidders as Licensee. Therefore, the Proposal had to be made in a<\/p>\n
prescribed format. On reading the said Proposal, therefore, it becomes<\/p>\n
clear that on the date, namely, 31.1.2008, being the cut-off date (when<\/p>\n
the bids were opened), M\/s PMS was the member-constituent of the<\/p>\n
consortium led by M\/s ZDL. At this stage, one must keep in mind that<\/p>\n
Section 212 of the Companies Act, 1956 which makes it obligatory<\/p>\n
on behalf of the holding company to annex to its Balance Sheet the<\/p>\n
Balance Sheet and P&L account and other financial particulars of its<\/p>\n
subsidiary. Section 212 requires the legal relationship of holding<\/p>\n
company and subsidiary company to be disclosed to all its members.<\/p>\n
In the world of globalization, we have consortium agreements\/ joint<\/p>\n
venture agreements. It appears from the particulars given by the<\/p>\n
consortium led by M\/s ZDL that M\/s PMS is a part of an international<\/p>\n
group of companies headed by M\/s PPL, UK. The prescribed Form<\/p>\n
warranted Disclosure giving particulars of the consortium members.<\/p>\n
The particulars furnished indicate that the Lead Member was M\/s
\nZDL. It is an Indian company. One of the consortium member was<\/p>\n
M\/s PMS, which is incorporated in UK. It is the 100% subsidiary of<\/p>\n
M\/s PPL, UK. This information also became necessary because the<\/p>\n
format required the Bidder to disclose “Ownership” of the member-<\/p>\n
company. Therefore, if one reads the Proposal of the Lead Member,<\/p>\n
M\/s ZDL, in the form prescribed, which Proposal was of 31.1.2008,<\/p>\n
one finds that M\/s PMS alone on its own was indicated as a member<\/p>\n
of the consortium and M\/s PPL was not shown as the member of the<\/p>\n
consortium.    However,   the   original   consortium\/joint   venture<\/p>\n
agreement dated 4.10.2007 signed by the member-constituent of the<\/p>\n
consortium led by M\/s ZDL stood signed by M\/s PMS on behalf of<\/p>\n
M\/s PPL, UK. Therefore, on 3.3.2008, IDC (Project Advisor) wrote to<\/p>\n
M\/s ZDL inter alia pointing out the defect in the consortium<\/p>\n
agreement dated 4.10.2007 in the following words:<\/p>\n
              “M\/s PMS has signed consortium agreement
\n              dated 4.10.2007 on behalf of M\/s PPL but
\n              M\/s PPL is not a member of the
\n              consortium.”\n<\/p><\/blockquote>\n
Thus, the Project Advisor treated the above irregularity in the<\/p>\n
execution of the consortium agreement dated 4.10.2007 as a curable<\/p>\n
defect for which time was given to M\/s ZDL up to 4.4.2008. Further,
\nthe Project Advisor clearly understood the Proposal to have had been<\/p>\n
given by M\/s ZDL as the Lead Member of the Consortium, whose<\/p>\n
constituent inter alia included M\/s PMS and not M\/s PPL. By the<\/p>\n
said letter, the Project Advisor also called for Annual Reports of three<\/p>\n
financial year of M\/s ZDL and Annual Reports of last 3 years of M\/s<\/p>\n
PMS (its own). This query indicates that the Project Advisor not only<\/p>\n
treated the above irregularity in the execution of the consortium<\/p>\n
agreement dated 4.10.2007 as the curable defect but it further shows<\/p>\n
that even, according to the Project Advisor, M\/s PMS alone was the<\/p>\n
constituent member of the consortium led by M\/s ZDL and it is for<\/p>\n
this reason that the Project Advisor called for the annual reports of<\/p>\n
M\/s PMS (its own). This defect was cured by M\/s PMS within the<\/p>\n
extended period. It is interesting to note that the question of<\/p>\n
“authorization” by M\/s PPL,UK, was not raised by the Project<\/p>\n
Advisor in its letter dated 3.3.2008. That aspect was raised only by<\/p>\n
the Law Secretary who came to be Invited as a special invitee by the<\/p>\n
Chief Secretary in the meetings of the EC held on 8.4.2008 and<\/p>\n
6.5.2008 (which is after the extended date 4.4.2008). It is not in<\/p>\n
dispute that M\/s PPL, UK is the holding company of M\/s PMS. M\/s<\/p>\n
PMS is a subsidiary company. It is the separate legal entity. We are
\nsatisfied that at the stage of Submission of Proposal itself and right<\/p>\n
from the inception, it was M\/s PMS, who alone was the constituent<\/p>\n
member of the consortium. The question of authorization raised by<\/p>\n
the Law Secretary, in his opinion, is clearly an afterthought. In fact,<\/p>\n
there is a contradiction in his opinion. If M\/s PPL was the member of<\/p>\n
the consortium, as construed by the Law Secretary, there was no need<\/p>\n
for M\/s PPL to authorize M\/s PMS to execute the consortium<\/p>\n
agreement. On the other hand, if M\/s PMS being the separate legal<\/p>\n
entity was a member of the consortium it had to sign the consortium<\/p>\n
agreement in its own capacity. The modified consortium agreement<\/p>\n
dated 11.3.2008 is supported by a Resolution. The said consortium<\/p>\n
agreement is in line with the Proposal submitted on 31.1.2008.<\/p>\n
15.   One more aspect needs to be pointed out. The RFP prescribes<\/p>\n
the form in which a bidder has to make his proposal. However, bidder<\/p>\n
was free to submit the consortium agreement in its own format. M\/s<\/p>\n
Universal Legal (legal advisor to the Sponsor) cleared the proposal on<\/p>\n
4.4.2008 stating that all requisite defects stood cured. It is only after<\/p>\n
4.4.2008 that the Law Secretary came into picture and gave an<\/p>\n
opinion to the contrary. Moreover, as found by the High Court in the<\/p>\n
impugned judgment, when the Law Secretary was asked to file his
\naffidavit he came out with the statement that his advice was “off the<\/p>\n
record” advice. It was not given through Official Channel. At this<\/p>\n
stage, we may also point out that no material has been placed before<\/p>\n
the High Court as to the reference made by the Chief Secretary to the<\/p>\n
Law Secretary. Whenever opinion is sought, the persons seeking<\/p>\n
opinion has to formulate the query for which opinion is sought. We<\/p>\n
do not know the query raised by the Chief Secretary before the Law<\/p>\n
Secretary. No material has been placed before us in this regard. In<\/p>\n
fact, the very purpose of routing the query through Official Channel<\/p>\n
is that the querist formulates the query on which opinion is given. In<\/p>\n
this case, there is no formulation of such a query. In the<\/p>\n
circumstances, we find that the High Court was right in not giving<\/p>\n
weightage to the “off the record” advice of the Law Secretary. This is<\/p>\n
one of the circumstances which vitiates the process of decision<\/p>\n
making by the EC. The bid was declared as non-admissible in the IVth<\/p>\n
meeting of the EC held on 6.5.2008. The Minutes indicate that, before<\/p>\n
the EC, there were two Opinions. First opinion was that of M\/s<\/p>\n
Universal Legal and the second opinion was that of the Law<\/p>\n
Secretary. There is nothing to indicate in the Minutes as to why the<\/p>\n
opinion of the legal advisor, M\/s Universal Legal, stood rejected.
\nThere is no reason given as to why the opinion of the Law Secretary<\/p>\n
came to be accepted. Be that as it may, we are of the view that the<\/p>\n
modified consortium agreement was between members of the<\/p>\n
consortium led by M\/s ZDL in which the member was M\/s PMS and<\/p>\n
not M\/s PPL, UK, right from the inception. Therefore, the entire<\/p>\n
exercise was to cure the defect. Time was given to M\/s ZDL to cure<\/p>\n
the defect which in fact was cured before 4.4.2008. For the<\/p>\n
aforestated reasons, we hold that there was no change in the<\/p>\n
membership of the consortium led by M\/s ZDL after 31.1.2008. In<\/p>\n
fact, even prior to the IVth meeting the EC did not call upon M\/s<\/p>\n
ZDL\/PMS to obtain Letter of Authority from M\/s PPL, UK.<\/p>\n
16.   For the above reasons we hold that there was no change in the<\/p>\n
membership of the Consortium led by M\/s ZDL.\n<\/p>\n
\nFindings on Point No. (B):\n<\/p>\n<\/p>\n
17.   As stated above, the second ground for treating the Bid<\/p>\n
Proposal of the consortium led by M\/z ZDL as non-responsive was<\/p>\n
that, in the consortium agreement, M\/s ZDL has failed to incorporate<\/p>\n
the expression “joint and several liability”. That, M\/s ZDL has
\nincorporated the clause under the expression “joint and several<\/p>\n
responsibility” in place of “joint and several liability” and<\/p>\n
consequently,    the   Bid   Proposal       became   non-admissible\/non-<\/p>\n
responsive in terms of the RFP. This was the basic argument<\/p>\n
advanced on behalf of GoK.\n<\/p>\n<\/p>\n
18.   At the outset, it may be stated that in letter dated 3.3.2008 no<\/p>\n
such point was ever raised by the Project Advisor. As stated above,<\/p>\n
by the said letter dated 3.3.2008 curable defects were pointed out<\/p>\n
regarding M\/s PMS having signed the consortium agreement dated<\/p>\n
4.10.2007 on behalf of M\/s PPL, UK, but no query was ever raised on<\/p>\n
the above point. On the contrary, as can be seen from the Minutes of<\/p>\n
the meetings held prior to 8.4.2008, the Project Advisor\/Sponsor has<\/p>\n
used the word “responsibility” interchangeably with the word<\/p>\n
“liability”. It is only in the opinion of the Law Secretary that, for the<\/p>\n
first time, the above objection is taken.\n<\/p>\n<\/p>\n
19.   Be that as it may, the question is whether in the modified<\/p>\n
consortium agreement dated 11.3.2008 responsibilities and allocation<\/p>\n
of works stood clearly demarcated between the members of the
\nconsortium? We have examined the consortium agreement dated<\/p>\n
11.3.2008. It clearly indicates that M\/s ZDL is an Indian company. It<\/p>\n
is a lead member of the consortium. The agreement further indicates<\/p>\n
that there were two members in the consortium apart from M\/s ZDL,<\/p>\n
namely, M\/s PMS and M\/s Peter Fraenkel & Partners. The agreement<\/p>\n
indicates that M\/s ZDL shall be responsible for implementation of the<\/p>\n
Project along with M\/s PMS and M\/s Peter Fraenkel & Partners. M\/s<\/p>\n
ZDL had to submit technical and financial bids. M\/s ZDL had to act<\/p>\n
as project developers and principal coordinators. M\/s ZDL had to<\/p>\n
arrange finances. On the other hand, M\/s Peter Fraenkel & Partners<\/p>\n
had to do the work of designing and budget preparations whereas M\/s<\/p>\n
PMS had to provide operational support during the implementation of<\/p>\n
the Project. Therefore, under the said Agreement, duties and<\/p>\n
responsibilities of each of the members stood carved out. Vide clause<\/p>\n
7, members of the consortium were made “jointly and severally<\/p>\n
responsible” for every stage of implementation of the Project. The<\/p>\n
only objection raised by the GoK is that the word “liable” ought to<\/p>\n
have been used instead of the word “responsible” in clause 7 and<\/p>\n
since that word has not been used, the Bid Proposal of M\/s ZDL<\/p>\n
needs to be dismissed. As stated above, in the meetings held prior to
\n8.4.2008, no such objection was ever raised. In fact, no opportunity<\/p>\n
was given to M\/s ZDL to cure this defect though it was given to the<\/p>\n
consortium led by M\/s Apollo (see page 81 of the SLP paper book in<\/p>\n
SLP (C) Nos. 30204-30205\/2008 entitled State of Kerala v. M\/s<\/p>\n
Zoom Developers Pvt. Ltd. & Ors.). The important point is that the<\/p>\n
EC treated the above objection as a curable defect. It is only after the<\/p>\n
Law Secretary came on the scene that the above objection was raised<\/p>\n
even after the clearance by M\/s Universal Legal. Therefore, it is<\/p>\n
clearly an afterthought. Further under the consortium agreement dated<\/p>\n
11.3.2008, it was stated that M\/s ZDL, PMS and Peter Fraenkel &<\/p>\n
Partners shall be fully responsible for their individual portions of<\/p>\n
work. Under the said Agreement, it was further stated that, in case the<\/p>\n
Project stood awarded to the Consortium, the Consortium commits to<\/p>\n
hold a minimum stake of 51% in the SPC. This shows that in the<\/p>\n
matter of liability, the Consortium Agreement was only a step-in-aide<\/p>\n
to the formation of SPC. Further, as rightly held by the High Court in<\/p>\n
the impugned judgment, the apprehension of GoK that in the event of<\/p>\n
disputes between members of the consortium or in the event of non-<\/p>\n
implementation of the Project, GoK would not be in a position to<\/p>\n
enforce its claim was ill-founded because the licence agreement
\nbetween the successful bidder and the licensor (GoK) was yet to be<\/p>\n
entered into in which a provision as to “joint and several liability”<\/p>\n
had to be made, as mentioned in the RFP. The consortium agreement<\/p>\n
was only an assurance or a commitment to abide by the licence<\/p>\n
agreement. Lastly, it may be stated that the word “responsibility” is<\/p>\n
no doubt different from the word “liability”. What is submitted before<\/p>\n
us is that the expression “joint and several liability” was required to<\/p>\n
be incorporated in the consortium agreement in terms of RFP. What<\/p>\n
was submitted before us was that the said expression constituted an<\/p>\n
objective criteria. What was submitted before us was that since the<\/p>\n
above expression in the RFP was treated as an objective criteria, the<\/p>\n
manner in which the said expression stood understood by the EC was<\/p>\n
irrelevant. We do not find merit in this argument. As stated above,<\/p>\n
though the Form of Proposal was prescribed, the bidder was free to<\/p>\n
submit the consortium agreement in its own Form. In our view, in the<\/p>\n
absence of a prescribed format and in the absence of the definition of<\/p>\n
the word “responsibility” vis-`-vis the word “liability” in the RFP, it<\/p>\n
cannot be said that the said expression “joint and several liability”<\/p>\n
was an objective criteria. It is true that in terms of RFP, the bidder<\/p>\n
was required to stipulate the words “joint and several liability” in the
\nconsortium agreement. But it is equally true that in certain cases<\/p>\n
objective words can be interpreted subjectively. For example, the<\/p>\n
word “regulate”. It has several times been decided that the power to<\/p>\n
regulate does not extend to a power to prohibit. But this very word<\/p>\n
has been held in some other cases to include the power to prohibit. In<\/p>\n
U.K., the Railway Board was entitled to impose a ban on smoking in<\/p>\n
trains under this very power to regulate. Therefore, one has to<\/p>\n
construe each of these words in that context. (see Administrative Law<\/p>\n
by H.W. Wade and Forsyth- 9th ed. at pp. 432-435). In this very case,<\/p>\n
various bids were considered by the Project Advisor\/Sponsor. They<\/p>\n
have themselves used the words “liability” and “responsibility”<\/p>\n
interchangeably. They have treated this defect as a curable defect.<\/p>\n
They have not rejected the Bid Proposal on 25.2.2008 in the first<\/p>\n
meeting on the above ground because the EC thought that the said<\/p>\n
defect was a curable defect.\n<\/p>\n<\/p>\n
20.   It was vehemently urged on behalf of M\/s Lanco led Consortium<\/p>\n
that in the consortium agreement dated 4.10.2007 as well as in the<\/p>\n
consortium agreement dated 11.3.2008, there was a clause under the<\/p>\n
heading “Relationship of Parties” which indicated that each member of<\/p>\n
the consortium shall deal with the other on principal-to-principal basis
\ntill the formation of SPC. In the said clause, it was further stated that,<\/p>\n
nothing contained in the agreement shall be deemed to constitute any<\/p>\n
of the parties as agent of the other. Therefore, the members of the<\/p>\n
consortium led by M\/s ZDL cannot be said to be jointly and severally<\/p>\n
liable at every stage of implementation of the Project. We do not find<\/p>\n
merit in this argument. As stated above, the consortium agreement<\/p>\n
dated 11.3.2008 spelt out the work allocation and the responsibility of<\/p>\n
each member of the consortium. It made the consortium responsible<\/p>\n
jointly and severally for implementation of the Project. The clause<\/p>\n
dealing with “relationship of the parties” merely stated that till the<\/p>\n
formation of the SPC, each member shall be related to each other on<\/p>\n
principal-to-principal basis. This is because the consortium is formed to<\/p>\n
make a bid for this Project only. Till the formation of SPC and till the<\/p>\n
consortium becomes a successful bidder, the parties relate to each other<\/p>\n
on principal-to-principal basis. But once that consortium becomes a<\/p>\n
successful bidder and commits to hold the minimum equity stake of<\/p>\n
51% in the SPC, then the question of joint and several liability would<\/p>\n
certainly arise. Therefore, the High Court rightly held that the licence<\/p>\n
agreement between GoK and the successful bidder (consortium) has<\/p>\n
still to be executed and it is at that stage that, in any event, the clause of
\njoint and several liability shall stand incorporated in the licence<\/p>\n
agreement.\n<\/p>\n
21.   Before concluding, an attempt was made on behalf of<\/p>\n
M\/s Lanco Kondapalli Power Pvt. Ltd. (appellant in the civil appeal<\/p>\n
arising out of SLP (C) No. 30305\/2008) to demonstrate before us that<\/p>\n
but for the financials of M\/s PPL, the consortium led by M\/s ZDL<\/p>\n
would not have met the financial qualification criteria as on the date<\/p>\n
of the submission of the Bid Proposal (31.1.2008). Learned counsel<\/p>\n
appearing on behalf of M\/s Lanco Kondapalli Power Pvt. Ltd.<\/p>\n
submitted a Chart in support of his above contention. We find no<\/p>\n
merit in this argument. The said Chart refers to the Financial Years<\/p>\n
October, 2003 to September, 2004, October 2004 to September, 2005,<\/p>\n
October, 2005 to September, 2006 as far as M\/s ZDL is concerned.<\/p>\n
However, it may be noted that initially the last date for submitting the<\/p>\n
bid was 31.10.2007, which was extended to 31.1.2008. The Balance<\/p>\n
Sheet and P&L account of M\/s ZDL for the year ending 30.9.2007<\/p>\n
stood adopted after audit only on 20.3.2008. If the figures for that<\/p>\n
year are taken into account then the financial qualification criteria<\/p>\n
stands satisfied.\n<\/p>\n
22.    For the aforestated reasons, we find no infirmity in the<\/p>\n
impugned judgment of the Division Bench of the Kerala High Court<\/p>\n
which has given a declaration to the effect that the Outer Cover and<\/p>\n
Cover-1 submitted by the consortium led by M\/s ZDL is<\/p>\n
admissible\/responsive in terms of RFP. Consequently, we declare that<\/p>\n
the Technical and Financial Proposals submitted by the said<\/p>\n
Consortium (respondent no. 1) are liable to be considered within 15<\/p>\n
days from the date of this judgment.\n<\/p>\n<\/p>\n
23.    Accordingly, the civil appeals stand dismissed with no order as<\/p>\n
to costs.\n<\/p>\n<\/p>\n
                                               …………………….J.\n<\/p>\n
                                              (Dr. Arijit Pasayat)<\/p>\n
                                               …………………….J.\n<\/p>\n
                                              (S. H. Kapadia)
\nNew Delhi; the
\nFebruary 10, 2009.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Kerala vs M\/S Zoom Developers P.Ltd.& Ors on 10 February, 2009 Author: S Kapadia Bench: Arijit Pasayat, S.H. Kapadia IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 841-842 \/2009 (arising out of SLP(C) Nos. 30204-30205\/2008) State of Kerala … Appellant(s) versus M\/s Zoom Developers Pvt. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-237991","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Kerala vs M\/S Zoom Developers P.Ltd.& Ors on 10 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-ms-zoom-developers-p-ltd-ors-on-10-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala vs M\/S Zoom Developers P.Ltd.& Ors on 10 February, 2009 - 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