{"id":61278,"date":"2002-09-25T00:00:00","date_gmt":"2002-09-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-e-s-installation-pvt-ltd-vs-hospital-services-consultancy-on-25-september-2002"},"modified":"2018-10-26T06:55:16","modified_gmt":"2018-10-26T01:25:16","slug":"p-e-s-installation-pvt-ltd-vs-hospital-services-consultancy-on-25-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-e-s-installation-pvt-ltd-vs-hospital-services-consultancy-on-25-september-2002","title":{"rendered":"P.E.S. Installation Pvt. Ltd. vs Hospital Services Consultancy … on 25 September, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
P.E.S. Installation Pvt. Ltd. vs Hospital Services Consultancy … on 25 September, 2002<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  S.B. Sinha, C.J.   <\/p>\n
 1. The petitioner is a company registered under the Indian Companies
\nAct. It carries on business of supplying medical equipments.\n<\/p>\n
 2. A notice inviting tender was issued for supplying installation,
\ntesting, commissioning and handing over of medical manifold systems and
\nassociated work at Institute Rotary Cancer Hospital, All India Institute of Medical
\nSciences.\n<\/p>\n
 3. The petitioner is the sole authorised distributor for sale and
\nservices of Hill Rom products for northern India covering States of New Delhi,
\nMadhya Pradesh, Uttar Pradesh, Himachal Pradesh, Punjab, Haryana and
\nRajasthan.\n<\/p>\n
 4. The first respondent herein is a Government of India Undertaking
\nand works as a Consultant and Architect for mega hospitals and laboratories. The
\nsecond respondent is Institute of Rotary Cancer Hospital at AIIMS and the third
\nrespondent – AIIMS is the parent body under whose aegis and in whose premises
\nthe respondent No. 2 exists. The first respondent herein had issued afore-mentioned notice inviting tender.\n<\/p>\n
 5. According to the petitioner, it had successfully commissioned the
\nfollowing projects:\n<\/p>\n
  Name
\n  of the contract<\/p>\n
  Nature
\n  of contract<\/p>\n
  Value<\/p>\n
  Escort Heart Institute New Delhi<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  176<\/span>
\n  lacs.\n<\/p>\n
  Deen Dayal Upadhyay Hospital,
\n  Delhi<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  107<\/span>
\n  lacs.\n<\/p>\n
  Sanjay Gandhi Memorial
\n  Hospital, Rewa, M.P.\n<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  79<\/span>
\n  lacs.\n<\/p>\n
  Delhi Government Trauma
\n  Centre, Metcalf Road<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  43<\/span>
\n  lacs.\n<\/p>\n
  Indira Gandhi Medical College, Shimla<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  58<\/span>
\n  lacs.\n<\/p>\n
  G.T.B. Hospital, Delhi<\/p>\n
  Supply, installation testing,
\n  commissioning of Central Medical Gas Pipeline System with Hill Rom and indigenous make<\/p>\n
  46<\/span>
\n  lacs.\n<\/p>\n
 6. It allegedly had executed or has been executing 75 projects. It had
\nallegedly been awarded similar contracts by Sir Ganga Ram Hospital and Dr. B.L.
\nKapoor Memorial Hospital, Pusa Road, New Delhi.\n<\/p>\n
 7. The first respondent invited pre-qualification documents for
\nparticipating in the tender for the afore-mentioned purposes on 1st March 2002.\n<\/p>\n
 8. The pre-qualification documents, consequent upon the notice
\ninviting tender issued by the first respondent herein were purchased by seven
\nparties up to 18th March 2002. A Tender Committee for the said matter was
\nconstituted on 22nd March 2002. The petitioner along with others submitted its
\napplication which was scrutinized. Two parties were allegedly held to be entitled
\nto be pre-qualified on 26th July 2002 for issue of tender documents. The tender
\ndocuments in terms of the recommendations by the Tender Scrutiny Committee
\nwere given on 9th July 2002 which were purchased by them on 10th July 2002 and
\non 31st July 2002.\n<\/p>\n
 9. The first respondent disqualified the petitioner and opened the
\ntechno-commercial bid and price bid as also made recommendations. The
\npetitioner was disqualified, inter alia, on the ground that it failed to comply with
\nparas 3.2(a) and 3.2(b) of the Conditions of Tender. The relevant terms and
\nconditions of the tender are:\n<\/p>\n
 “3.2. The Applicant shall meet the following
\nminimum criteria:\n<\/p>\n
 (a) Minimum average Annual turnover during
\nlast three financial years i.e. financial years
\ni.e. 1998-99, 1999-2000, 2000-2001 for the
\nworks completed during the financial years
\nshould not be less than Rs. 425.00 lakhs. (Fill
\nenclosed Annexure-1).\n<\/p>\n
 (b) The firm must have successfully completed
\nat least one order of similar nature during
\nthe last five financial years involving
\noxygen gas manifold, nitrous oxide gas
\nmanifold system, gas terminal units, area
\nalarm system etc. on turnkey basis of value
\nnot less than Rs. 128.00 lakhs (Copy of the
\norder and completion certificate to be
\nsubmitted). The date of completion to fall in
\nlast five financial years. The performance
\nstatement giving details of similar works
\nexecuted during the last five years by the
\nfirm shall be submitted along with copies of
\norders\/completion certificates. (Fill enclosed
\nAnnexure- II and enclose copies of order
\nand completion certificates).\n<\/p>\n
 (c) The firm must be manufacturer or
\nauthorized representative of manufacturer of
\nequipments like gas terminal outlets, area
\nalarm system, multimovement pendants,
\nfully automatic changeover control panel
\netc. conforming to International Standards \/
\nSpecifications which should conform to
\nCSA (Canada) \/HTM-2022 (UK) \/NFPA-99
\n(USA) \/ DIN (German) standards. Bids
\nsubmitted by firms not meeting this
\nrequirement will not be considered.
\nmanufacturer authorization letter to be
\nenclosed in case the bidder is an authorized
\nrepresentative.\n<\/p>\n
 3.5(b) A certificate from the firm’s bankers should
\nbe submitted that minimum equivalent to
\nabout four months (average) requirement of
\nfunds can be managed by bidder in case
\nfunds get delayed by employer.\n<\/p>\n
Where necessary, the Consultant (HSCC) on
\nbehalf of Employer will make inquiries with
\nthe Applicant’s bankers. (Fill enclosed
\nAnnexure-V).\n<\/p>\n
 3.7. The firm should have at least 5 years
\nexperience in the installation of medical gas
\npipe line system in India and should provide
\nlist of hospitals along with year of
\ninstallation.”\n<\/p>\n
 10. According to the petitioner, for the years 1998-99, 1999-2000 and
\n2000-2001, its annual turnover was an under:\n<\/p>\n
  “Application Form No.
\n  3<\/span><\/p>\n
  Annexure-1<\/p>\n
  Annual Turnover<\/p>\n
  \u00a0<\/p>\n
  S. No.<\/p>\n
  Year<\/p>\n
  Annual Turnover in Indian
\n  Rupees (or equivalent to Indian rupees) as per audited balance sheet or CA Certificate<\/p>\n
  1.<\/p>\n
  1998-1999<\/p>\n
  Rs.  3,34,97,143.91<\/p>\n
  2.<\/p>\n
  1999-2000<\/p>\n
  Rs.  3,16,57,580.35<\/p>\n
  3.<\/p>\n
  2000-2001\u00a0<\/p>\n
  Rs.  6,60,74,944.58<\/p>\n
  Average Annual Turnover: Over the
\n  past three years two<\/p>\n
  Rs. 4,37,43,222.95 (Rupees Four crore thirty seven
\n  lac forty three thousand hundred twenty two &
\n  paise ninety five only)<\/p>\n
  Enclosed:\n<\/p>\n
  CA Certificate ITC Certificate<\/p>\n
 11. The Chartered Accountant of the petitioner had also issued a
\ncertificate which is to the following effect:\n<\/p>\n
   “TO WHOM SO EVER IT MAY CONCERN   <\/p>\n
 This is to certify that M\/s. PES Installations
\nPvt. Ltd. 16, Paschim Vihar Extension, New Delhi
\nhad achieved a following under-mentioned turnover
\nfor three preceding financial years.\n<\/p>\n
   Financial Year<\/p>\n
   Total Turnover (Rs. )<\/p>\n
   1998-1999<\/p>\n
  Turnover in Indian Rs.\n<\/p>\n
  2,17,66,563.91<\/p>\n
  Turnover in foreign exchange through direct importation by the client amounting US $ 116110 converted to Rs.  @ 43\/- Appx.
\n  49,92,730.00<\/p>\n
  GBP 97650 converted to Rs.  @ 69\/-Appx.
\n  67,37,850.00
\n  3,34,97,143.91p<\/p>\n
  1999-2000<\/p>\n
  Turnover in Indian Rs.\n<\/p>\n
  1,56,44,956.35<\/p>\n
  Turnover in foreign exchange through direct importation by the clientamounting US $ 212536 converted to Rs. @ 45\/- Appx.
\n  95,64,120.00<\/p>\n
  GBP 3200 converted to Rs.  @ 70\/-Appx.
\n  2,24,000.00<\/p>\n
  Frank 957616 concerted to Rs. @ 6.50 Appx.
\n  62,24,504.00
\n  3,16,57,580.35<\/p>\n
  2000-2001<\/p>\n
  Turnover in Indian Rs.\n<\/p>\n
  2,42,24.000.58<\/p>\n
  Turnover In Foreign through direct importation by the client amounting US $ 702660 converted to Rs.  @ 47\/-Appx.
\n  3,30,25,020.00<\/p>\n
  GBP 129793 converted to Rs.  @ 68 Appx.
\n  88,25,924.00
\n  6,60,74,944.58<\/p>\n
 The above mentioned figures have been
\nverified by us from the audited balance sheets for
\nthe three years, bills of entry & other relevant
\ndocuments\/vouchers.\n<\/p>\n
 For Sehgal Arun & Associates <\/p>\n
Chartered Accountants <\/p>\n
Sd\/-\n<\/p>\n
Arun Sehgal <\/p>\n
Partner <\/p>\n
Membership No. 91547″\n<\/p>\n
 12. The petitioner, therefore, contends that it had fulfillled the requisite
\neligibility criteria.\n<\/p>\n
 13. However, as regards non-fulfilment of the condition 3.2(b) vis-a-vis
\nthe project undertaken by the petitioner under the Escorts Hospital, it was
\naverred by the respondents:\n<\/p>\n
  “It is submitted that the petitioner is trying
\nto mislead this Hon’ble Court. The value of Rs. 176
\nlacs claimed by petitioner for Escorts Hospital was
\nthe project as executed by Hill Rom which is a
\ntotally different and independent legal entity and
\ncompany of which the petitioner is only an agent on
\na commission basis. The work order dated 5.8.2000
\nwas placed on Hill Rom. In the para under reply,
\nthe petitioner has itself stated that the contract was
\nperformed with Hill Rom and indigenous make. In
\norder to qualify for the pre-qualification state, the
\napplicant \/ tenderer “must have executed and
\nsuccessfully completed at least one order of similar
\nnature during the last 5 financial years on turnkey
\nbasis of value not less than Rs. 128 lacs.” Copy of
\nthe order and completion certificate to be supplied.
\nWithout prejudice to the fact that the petitioner has
\nnot executed the contract themselves on turnkey
\nbasis nor the work order has placed on the petitioner
\nfor the Escorts contract.”\n<\/p>\n
 14. The contention of the petitioner, however, is that there was no
\noccasion for the respondents not to take into consideration the value of the import
\nas in the details of the works of similar nature in complexity. It was stated:\n<\/p>\n
  S. No.
\n  Name of the Contract
\n  Name of the Client
\n  Brief description of the contract
\n  Date of starting
\n  Date of completion as per contract
\n  Date of actual completion
\n  Value(in Rs. Lac.)<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  ….\n<\/p>\n
  2.
\n  Escorts Heart Institute, New Delhi.
\n  Escorts Hearts Institute, New Delhi
\n  Supply, installation, testing              & commissioning       of Central  Medical  Gas Pipelines   System   & Ceiling Pendants, Bed Head          Trunking System,   Bed    Head Panels   etc.  of  Hill-Rom   &   indigenous make.
\n  31.05.2000
\n  30.01. 2001
\n  25.02.2001
\n  176 lac.\n<\/p>\n
 15. According to the petitioner as the contract was a turn-key project
\nwherefor not only the civil works but also the equipments which were imported
\nwere to be installed, it had fulfillled the criteria of completion of the job of Rs. 128
\nlakhs. In support of the said contention, our attention has also been drawn to a
\nletter dated 31st March 2000 issued by the Escorts Heart Institute and Research
\nCentre in relation to the civil works, which is to the following effect:\n<\/p>\n
  “This is with reference to the Tenders for the
\nsubject systems submitted by you in response to our
\nConsultant’s Notice Inviting Tenders and final
\nnegotiations held with the undersigned.\n<\/p>\n
 In this connection, we are pleased to issue
\nyou this letter of Intent for the   Medical Gases
\nManifold Room & Piping Work    as per the
\nfollowing major terms and conditions:\n<\/p>\n
   1. Scope of work  <\/p>\n
 The total cost of the project for the
\nTendered items, all inclusive shall be Rs. 53,12,820
\n(Rupees fifty three Lacs twelve thousand, eight
\nhundred & twenty only) as per the break up given in
\nthe Annexure. Your contract shall cover all the
\nbuilt-up areas of the New Building (all phases)
\nunder construction & connections to our existing
\nhospital. We have informed you that in our new
\nmulti-storeyed structure we are keeping provision
\nfor four more storeys. In case we get sanction for
\nthese extra four floors during the tenure of our
\ncontract with you, then the extra four floors shall
\nhave to be completed with the provisions of this
\ncontract and an extension of four months time shall
\nbe given.\n<\/p>\n
 The quantities given are indicative only.
\nThere can be changes in the quantities, at any stage
\nof the project. Also you have negotiated the prices
\nof imported & indigenous versions of various items
\nand we shall have the option to choose either
\nversion.\n<\/p>\n
 Also since we are contemplating
\nprocurement of bed head equipment, which shall
\nhave outlet points, as part of the equipment, these
\nshall get reduced.\n<\/p>\n
 16. It is stated that scope of the said work was required to be
\nconsidered along with the order placed by the said Institute to M\/s Hill Rom
\nCompany Inc., USA dated 5th August 2000 in terms whereof all the goods were to
\nbe supplied only through the petitioner. The said letter reads thus:\n<\/p>\n
 “Subject: Supply of (a) Medical Gas Pipeline
\nSystem Along with its accessories
\nO.T. Unit and Wards.\n<\/p>\n
  Supply of (b) Critical Care beds,
\nStretcher Along with Frames and
\nAccessories.\n<\/p>\n
  Reference: Your Proforma No. HR\/IND\/PES\/10119
\ndate 28-07-2000.\n<\/p>\n
 Dear Sir,  <\/p>\n
 1. Please supply through M\/s. PES Installation
\nPvt. Ltd., New Delhi the items as per your proforma
\nNo. HR\/IND\/PES\/10119 date 28-07-2000 for US $
\n517,913-00 (cif) Stated above, copy of which is
\nenclosed herewith at Appendix “A’ to this supply
\norder.\n<\/p>\n
 2. Terms & Conditions applicable to this supply
\norder and contained at Appendix “B” along with
\nannexure-1.\n<\/p>\n
 3. Three copies of this order are furnished to
\nyou. Two copies are retained by you. The third
\ncopy be returned to this Institute duly stamped and
\nsigned by your authorized signatory as well as of
\nM\/s. PES Installation Pvt. Ltd., New Delhi which
\nshall signify that you and your agents in India have;\n<\/p>\n
 – Acknowledged & accepted the above order;\n<\/p>\n
 – Accepted the terms & conditions stipulated
\nat Appendix “B” and  <\/p>\n
 – You shall execute the above supply order
\naccordingly.”\n<\/p>\n
 17. The petitioner further contends that in any event, as the said
\ninstitute has granted a certificate in its favor on 9th March 2002 to the following
\neffect, the same should have been considered to be conclusive in nature.\n<\/p>\n
  “TO WHOMSOEVER IT MAY CONCERN   <\/p>\n
 We hereby certify that M\/s. PES
\nInstallations Pvt. Ltd., having their offices at 16,
\nPaschim Vihar Extension, Rohtak Road, New
\nDelhi-110063 has executed the total project of
\nMedical Gases Pipeline Distribution System for
\nOxygen, Nitrous Oxide, Comb. Air (4 kg. & 7 kg.),
\nVacuum, AGSS, including Alarms, Valves Boxes,
\nHead Wall Panels, Ceiling Pendants, Oxygen Flow-meters,
\nWard Vacuum Units, Theatre Vacuum
\nUnits, Speciality Beds, Stretcher, Over Bed Tables,
\nNurse Call System. The total value of Project is
\nRs. 4,00,000\/- (Rupees four crore only) towards
\nindigenous and imported components. The system
\nis functional for the last more than a year and
\nworking satisfactorily.”\n<\/p>\n
 18. Our attention has further been drawn to an authorization certificate
\nissued by Hill Rom Company dated 20th July 2001 which is to the following
\neffect:\n<\/p>\n
  “TO WHOSOEVER IT MAY CONCERN   <\/p>\n
 July 20, 2001  <\/p>\n
 Subject:  General Authority letter  <\/p>\n
 This is confirm that M\/s. PES Installation
\nPvt. Ltd. with their offices at 16, Paschim Vihar
\nExtension, Rohtak Road, New Delhi is our
\nauthorized distributor for the sales and services of
\nHill-Rom\u00ae products for the territory of North India
\ncovering the states of New Delhi, Madhya Pradesh,
\nUttar Pradesh, Himachal Pradesh, Punjab, Jammu &
\nKashmir, Haryana & Rajasthan.\n<\/p>\n
 PES Installation is also authorized to sign
\nand quote on our behalf from time to time for the
\npurpose of promoting our sales. PES Installation
\nPvt. Ltd. has satisfactory after sales service facilities
\nto back up the servicing with essential spare parts.\n<\/p>\n
 This certificate is valid up to 31 July 2002
\nand shall be renewed on a yearly basis with mutual
\nconsent there after.”\n<\/p>\n
 19. The petitioner, therefore, contends that there is no reason as to why
\nthe export component of the contract shall not be taken into consideration for the
\nafore-mentioned purposes.\n<\/p>\n
 20. Certificate of Escorts alone, according to Mr. Rajiv Nayar, learned
\nsenior counsel appearing on behalf of the petitioner, would be conclusive in such
\nmatters. The learned counsel would further contend that the action on the part of
\nthe first respondent was mala fide. It was submitted that the first respondent on
\n31st July 2002 could not have rejected the bid of the petitioner, opened a techno-commercial bid, financial bid as also made recommendations. In this connection,
\nour attention has been drawn to the documents comprising Clause 15.3 of the
\ninstructions which is to the following effect:\n<\/p>\n
  “15.3 Price Bid of bidders whose offers
\n(Technocommercial bid) are found technically and
\ncommercially substantially responsive to the Bid
\nDocuments will only be opened on a date of to be
\nintimated later to these bidders.”\n<\/p>\n
 21. It had further been submitted that the bids were required to be
\nsubmitted in three different envelopes, as would appear from the following:\n<\/p>\n
 “12.  Submission of Bids  <\/p>\n
 12.1  Sealing and Marking of Bids:\n<\/p>\n
 The Bidders shall seal the Bid (being a
\nseparate bid for each group) in two envelopes duly
\nmarking the envelopes, separately as
\nTechnocommercial Bid (unpriced) and Price Bid
\nand both these envelopes to be enclosed in another
\nsealed envelope.\n<\/p>\n
 12.2. The inner and outer envelopes shall be:\n<\/p>\n
 (a) Addressal to General Manager,
\nHospital Services Plot No. E-6(A),
\nSector-1, Noida-201 301.\n<\/p>\n
 (b) Shall bear (the project name), the
\nPress Tender Notice Reference, and
\nthe words “DO NOT OPEN
\nBEFORE_____.\n<\/p>\n
 12.3. All the envelopes shall indicate the name
\nand address of the Bidder.\n<\/p>\n
 12.4. If the envelopes are not sealed and marked
\nas required in Para 12.2, the Purchaser will assume
\nno responsibility for the Bid’s misplacement or
\npremature opening.”\n<\/p>\n
 22. Even in its letter dated 5th March 1999, the first respondent had
\nintimated:\n<\/p>\n
  “Only the Techno-Commercial bid shall be
\nopened in the presence of participating Bidders on
\ndates mentioned above at 14.00 hrs. Based on
\nTechno-Commercial evaluation, the Price Bid of
\nsuch of those bidders, who are found technically
\nand commercially eligible are only to be opened at a
\ndate to be intimated to them.”\n<\/p>\n
 23. It was contended that having regard to the requirements aforementioned,
\nboth the bids could not have been opened in the same day. The idea,
\naccording to the learned counsel, would further be evident from the fact that after
\nopening the techno-commercial bid, it is necessary to scrutinize the documents
\nfiled by the parties at great length and thus it was not possible for the said
\nCommittee to scrutinize the bid documents.\n<\/p>\n
 24. According to the petitioner, in its reply it had shown that it fulfills
\nall the requisite criteria. Our attention in this connection has also been drawn to a
\nletter of the office of the Medical Superintendent in Deen Dayal Upadhayaya
\nHospital which is to the following effect:\n<\/p>\n
 “Subject: Installation of Central Gas Pipe Line
\nSystem in DDU Hospital.\n<\/p>\n
 Sir,  <\/p>\n
 Following the sanction of finance
\ndepartment, Govt. of NCT of Delhi, this hospital
\nhas awarded you the contract for installation of
\nCentral Gas Pipe Line System in DDU Hospital on
\nterms & conditions already mutually agreed upon.
\nHowever, no escalation in cost is being allowed by
\nthe finance department, Govt. of NCT of Delhi.\n<\/p>\n
 Therefore, you have to work on the rates
\nalready approved by the hospital (copy of the rates
\nand material required is enclosed). Kindly, confirm
\nthe acceptance of the contract and incase it is
\nacceptable, you may start the work immediately.”\n<\/p>\n
 25. Ms. Pinky Anand, learned counsel for the respondents, on the other
\nhand, would content that the actions on the part of respondent No. 1 being not
\narbitrary, this court should not exercise its power of judicial review in the matter.
\nThe learned counsel would submit that as regards the annual turnover for the last
\nthree years, from the note appended to the Annexure I, it would appear that the
\nsame were to be supported by the certificates.\n<\/p>\n
 26. The balance sheet filed by the petitioner was as under:\n<\/p>\n
“PES INSTALLATION PVT. LTD.\n<\/p>\n
BALANCE SHEET AS ON YEAR<\/p>\n
ENDING 31-3-89<\/p>\n
  Sources
\n  of Funds<\/p>\n
  SCHEDULE<\/p>\n
  CURRENT
\n  YR<\/p>\n
  PREV YR<\/p>\n
  Share
\n  capital<\/p>\n
  \u00a0<\/p>\n
  592520.00<\/p>\n
  97260.00<\/p>\n
  Reserve
\n  & surplus<\/p>\n
  \u00a0<\/p>\n
  421362.55<\/p>\n
  484552.49<\/p>\n
  Secured
\n  loans<\/p>\n
  A<\/p>\n
  25772.00<\/p>\n
  218356.55<\/p>\n
  Unsecured
\n  Loans<\/p>\n
  B<\/p>\n
  50000.00<\/p>\n
  104000.00<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1089654.55<\/p>\n
  904169.04<\/p>\n
  Application
\n  of funds<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  Fixed
\n  Assets<\/p>\n
  C<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  Gross
\n   Block<\/p>\n
  \u00a0<\/p>\n
  2118462.40<\/p>\n
  1790734.00<\/p>\n
  Less:\n<\/p>\n
  Depreciation<\/p>\n
  \u00a0<\/p>\n
  744127.00<\/p>\n
  -507066.00<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1374335.40<\/p>\n
  1283668.00<\/p>\n
  ADD;\n<\/p>\n
  current asset, loans & Advances<\/p>\n
  D<\/p>\n
  2920612.62<\/p>\n
  2849207.89<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  4294948.02i<\/p>\n
  4132875.89<\/p>\n
  Less:\n<\/p>\n
  current liabilities<\/p>\n
  E<\/p>\n
  -3205293.47<\/p>\n
  -3341126.19<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1089654.55<\/p>\n
  791749.70<\/p>\n
  Investments<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  112419.34<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1089654.55<\/p>\n
  904169.04<\/p>\n
 Auditor’s report <\/p>\n
 As per our separate report of even date”\n<\/p>\n
 27. Certificate by the Chartered Accountant was as under:\n<\/p>\n
“PES
\nINSTALLATION PVT. LTD.\u00a0\n<\/p>\n
 PROFIT & LOSS ACCOUNT FOR THE YEAR<\/p>\n
ENDING 31-3-89<\/p>\n
  PARTICULARS<\/p>\n
  SCHEDULE<\/p>\n
  CURRENT
\n  YR<\/p>\n
  PREV
\n  YR<\/p>\n
  Sales<\/p>\n
  \u00a0<\/p>\n
  2213421.00<\/p>\n
  2317477.60<\/p>\n
  Job work Recd.\n<\/p>\n
  \u00a0<\/p>\n
  18790702.55<\/p>\n
  6924683.30<\/p>\n
  Other income<\/p>\n
  F<\/p>\n
  762440.36<\/p>\n
  755968.26<\/p>\n
  \u00a0<\/p>\n
  (A)<\/p>\n
  21766563.91<\/p>\n
  9998129.16<\/p>\n
  Cost of Purchase<\/p>\n
  G<\/p>\n
  11768458.01<\/p>\n
  5736478.81<\/p>\n
  Direct Exp.\n<\/p>\n
  H<\/p>\n
  4604880.18<\/p>\n
  939995.57<\/p>\n
  Administration Exp.\n<\/p>\n
  I<\/p>\n
  2783559.69<\/p>\n
  1841016.30<\/p>\n
  Selling &
\n  Distribution Exp.\n<\/p>\n
  J<\/p>\n
  1713838.51<\/p>\n
  760570.86<\/p>\n
  Finance Exp.\n<\/p>\n
  K<\/p>\n
  84948.46<\/p>\n
  123183.23<\/p>\n
  Depreciation<\/p>\n
  \u00a0<\/p>\n
  237061.00<\/p>\n
  240810.00<\/p>\n
  \u00a0<\/p>\n
  (B)<\/p>\n
  21192745.85<\/p>\n
  9642054.77<\/p>\n
  \u00a0<\/p>\n
  Net Profit (A-B)<\/p>\n
  573818.06<\/p>\n
  356074.39<\/p>\n
  Proposed Dividend @ 40 %<\/p>\n
  237008.00<\/p>\n
  NIL<\/p>\n
  Balance
\n  Profit TFD to P&L A\/C<\/p>\n
  -336810.06<\/p>\n
  356074.39<\/p>\n
 Auditor’s report <\/p>\n
 As per our separate report of even date”\n<\/p>\n
 “PES
\nINSTALLATION PVT. LTD.\n<\/p>\n
B ALANC E SHEET   AS ON YEAR<\/p>\n
ENDING 31-3-2000<\/p>\n
  Sources
\n  or Funds<\/p>\n
  Schedule<\/p>\n
  Current
\n  Year<\/p>\n
  Previous
\n  year<\/p>\n
  Share
\n  Capital<\/p>\n
  A<\/p>\n
  592520.00<\/p>\n
  592520.00<\/p>\n
  Reserve
\n  &Surplus<\/p>\n
  \u00a0<\/p>\n
  583812.83<\/p>\n
  421362.55<\/p>\n
  Secured
\n  loans<\/p>\n
  B<\/p>\n
  __________<\/p>\n
  25772.00<\/p>\n
  Unsecured
\n  loans<\/p>\n
  C<\/p>\n
  50000.00<\/p>\n
  50000.00<\/p>\n
  \u00a0<\/p>\n
  Total<\/p>\n
  1226332.83<\/p>\n
  1039654.55<\/p>\n
  Application
\n  of funds<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  Fixed
\n  Assets<\/p>\n
  D<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  Gross
\n   Block<\/p>\n
  \u00a0<\/p>\n
  2187669.40<\/p>\n
  2118462.40<\/p>\n
  Less:\n<\/p>\n
  Depreciation<\/p>\n
  \u00a0<\/p>\n
  949170.00<\/p>\n
  744127.00<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1238499.40<\/p>\n
  1374335.40<\/p>\n
  Add: Current
\n  assets, Loans & Advances<\/p>\n
  E<\/p>\n
  4582775.59<\/p>\n
  2920612.62<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  5821274.99<\/p>\n
  4294948.02<\/p>\n
  Less: Current
\n  liabilities<\/p>\n
  F<\/p>\n
  4594942.16<\/p>\n
  3205293.47<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  1226332.83<\/p>\n
  1089654.55<\/p>\n
  Investment<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  Total<\/p>\n
  1226332.83<\/p>\n
  1089654.55<\/p>\n
 Auditor’s report <\/p>\n
 As per our separate report of even date”\n<\/p>\n
PES
\nINSTALLATIONS PVT LTD<\/p>\n
 SCHEDULE
\nOF FIXED ASSETS AS PER<\/p>\n
COMPANIES
\nACT ATTACHED TO AND<\/p>\n
FORMATTING
\nOF THE BALANCE SHEET AS ON<\/p>\n
31.3.2001<\/p>\n
  Particulars<\/p>\n
  Rate
\n  (%)<\/p>\n
  Cost as
\n  on 1.4.00<\/p>\n
  Gross Block<\/p>\n
  Depreciation
\n  block<\/p>\n
  Net Block<\/p>\n
  Addition<\/p>\n
  Total
\n  as on 31.3.2000<\/p>\n
  Total
\n  as on 1.4.00<\/p>\n
  During
\n  The Year<\/p>\n
  Total
\n  as on 31.3.01<\/p>\n
  as on 31.3.2001<\/p>\n
  As o 1.4.2000<\/p>\n
  Computer<\/p>\n
  \u00a0<\/p>\n
  168402.00<\/p>\n
  \u00a0<\/p>\n
  168402.00<\/p>\n
  127111.00<\/p>\n
  16516.00<\/p>\n
  143627<\/p>\n
  24775<\/p>\n
  41291<\/p>\n
  Furniture
\n  & Fixture<\/p>\n
  18.1%<\/p>\n
  356125.40<\/p>\n
  \u00a0<\/p>\n
  356125.40<\/p>\n
  131168.00<\/p>\n
  40717.00<\/p>\n
  171885<\/p>\n
  184240.4<\/p>\n
  224957.4<\/p>\n
  Cellular
\n  phone<\/p>\n
  13.91%<\/p>\n
  41000.00<\/p>\n
  \u00a0<\/p>\n
  41000.00<\/p>\n
  15047.00<\/p>\n
  3610.00<\/p>\n
  18657<\/p>\n
  22343<\/p>\n
  25953<\/p>\n
  Car
\n  Lancer<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  887806.00<\/p>\n
  887806.00<\/p>\n
  887806.00<\/p>\n
  19154.00<\/p>\n
  19154<\/p>\n
  868652<\/p>\n
  \u00a0<\/p>\n
  Car
\n  Ceilo<\/p>\n
  25.89%<\/p>\n
  540060.00<\/p>\n
  \u00a0<\/p>\n
  540060.00<\/p>\n
  377149.00<\/p>\n
  42178.00<\/p>\n
  419327<\/p>\n
  120733<\/p>\n
  162911<\/p>\n
  Car
\n  Maruti<\/p>\n
  25.89%<\/p>\n
  221425.00<\/p>\n
  \u00a0<\/p>\n
  221425.00<\/p>\n
  154632.00<\/p>\n
  17293.00<\/p>\n
  171925<\/p>\n
  49500<\/p>\n
  66793<\/p>\n
  Fax
\n  machine<\/p>\n
  13.91 %<\/p>\n
  24000.00<\/p>\n
  \u00a0<\/p>\n
  24000.00<\/p>\n
  8865.00<\/p>\n
  2105.00<\/p>\n
  10970<\/p>\n
  13030<\/p>\n
  15135<\/p>\n
  Invertor<\/p>\n
  13.91%<\/p>\n
  36000.00<\/p>\n
  \u00a0<\/p>\n
  36000.00<\/p>\n
  16357.00<\/p>\n
  2732.00<\/p>\n
  19089<\/p>\n
  16911<\/p>\n
  19643<\/p>\n
  Office
\n  equipment<\/p>\n
  13.91%<\/p>\n
  24210.00<\/p>\n
  384.00<\/p>\n
  24594.00<\/p>\n
  7564.00<\/p>\n
  2369.00<\/p>\n
  9933<\/span><\/p>\n
  14661<\/p>\n
  16646<\/p>\n
  Pager<\/p>\n
  13.91%<\/p>\n
  19980.00<\/p>\n
  \u00a0<\/p>\n
  19980.00<\/p>\n
  8857.00<\/p>\n
  f1547.00<\/p>\n
  10404<\/p>\n
  9576<\/span><\/p>\n
  11123<\/p>\n
  Office<\/p>\n
  5%<\/p>\n
  573842.00<\/p>\n
  \u00a0<\/p>\n
  573842.00<\/p>\n
  87764.00<\/p>\n
  24304.00<\/p>\n
  112068<\/p>\n
  481774<\/p>\n
  486078<\/p>\n
  Water
\n  dispenser<\/p>\n
  13.91%<\/p>\n
  9650.00<\/p>\n
  \u00a0<\/p>\n
  9650.00<\/p>\n
  4135.00<\/p>\n
  767.00<\/p>\n
  4902<\/span><\/p>\n
  4748<\/span><\/p>\n
  5515<\/span><\/p>\n
  Plot<\/p>\n
  \u00a0<\/p>\n
  120500.00<\/p>\n
  \u00a0<\/p>\n
  120500.00<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  120500<\/p>\n
  120500<\/p>\n
  Telephone<\/p>\n
  13.91%<\/p>\n
  9000.00<\/p>\n
  \u00a0<\/p>\n
  9000.00<\/p>\n
  3258.00<\/p>\n
  799.00<\/p>\n
  4057<\/span><\/p>\n
  4943<\/span><\/p>\n
  5742<\/span><\/p>\n
  Cycle<\/p>\n
  13.91%<\/p>\n
  1420.00<\/p>\n
  \u00a0<\/p>\n
  1420.00<\/p>\n
  198.00<\/p>\n
  170.00<\/p>\n
  368<\/span><\/p>\n
  1052<\/span><\/p>\n
  1222<\/span><\/p>\n
  Fan<\/p>\n
  13.91%<\/p>\n
  10145.00<\/p>\n
  \u00a0<\/p>\n
  10145.00<\/p>\n
  2626.00<\/p>\n
  1046.00<\/p>\n
  3672<\/span><\/p>\n
  6473<\/span><\/p>\n
  7519<\/span><\/p>\n
  4Generator set<\/p>\n
  13.91%<\/p>\n
  31910.00<\/p>\n
  \u00a0<\/p>\n
  31910.00<\/p>\n
  4439.00<\/p>\n
  3821.00<\/p>\n
  8260<\/span><\/p>\n
  23650<\/p>\n
  27471<\/p>\n
  \u00a0<\/p>\n
  2187669.40<\/p>\n
  888190.00<\/p>\n
  3075859.40%<\/p>\n
  1836976.00<\/p>\n
  174128.00<\/p>\n
  1128298<\/p>\n
  1947561<\/p>\n
  1238499<\/p>\n
 28. It was, therefore, contended that the petitioner did not fulfilll the
\ncriteria that it had completed a project of Rs. 462 lakhs, as their annual turnover
\nwas limited to Rs. 205 to 227 lakhs.\n<\/p>\n
 29. According to the learned counsel, no other document could be
\ntaken into consideration for the afore-mentioned purpose. It was further
\nsubmitted that from the letter dated 31st Marc 2000 issued by the Escorts Heart
\nInstitute and Research Centre, it would appear that the petitioner only carried out
\na project of Rs. 53,12,820\/- Only. Having regard to the fact that offer for supply
\nof goods of US$ 517,913.00 was placed on Hill Rom Company and not upon the
\npetitioner, the same could not have been taken into consideration for the purpose
\nof reckoning the quantum of work done by the petitioner. Supply contract, Ms.
\nAnand would contend, cannot be a part of the project.\n<\/p>\n
 30. The learned counsel would submit that the Tender Screening
\nCommittee recommended the lowest bidder but having regard to the fact that the
\nmatter is pending before this court, no work order has been issued.\n<\/p>\n
 31. According to the learned counsel, the question as to whether the
\nrecommendations of the first respondent would be accepted or not, the final say
\ntherefor is only with the third respondent herein. In a case of this nature the
\nlearned counsel would contend that the tenderers were bound to scrupulously
\ncomply with the terms and conditions of the tender. In support of the said
\ncontention, reliance has been placed on W.B. Electricity Board v. Patel
\nEngineering Co. Ltd.,<\/a> (2001) 2 SCC 451.\n<\/p>\n
 32. It is not in dispute that Clause 3.2 of the Invitation for pre-qualification
\nmust be read as a whole. Whereas Clause 3.2(a) and 3.2(b) provide
\nfor essential minimum criteria and the modalities are stated in Clause 3.2(c)
\nthereof, in terms of Sub-clause (a) of Clause 3.2, minimum average annual
\nturnover during the last three financial year is not required to be less than Rs. 425
\nlacs.\n<\/p>\n
 33. From the certificates issued by the Chartered Accountants as also
\nthe Income-tax Clearance Certificate, it would appear that the petitioners average
\nannual turnover for the aforementioned years were Rs. 4,37,43,222.95; ITC
\ncertificate has also been enclosed by the petitioner. What the respondents appears
\nto have done was to exclude the turnover in foreign exchange to direct
\nimportation by the petitioner in all these three years without assigning any
\nsufficient or cogent reasons. If a clarification was necessary in this behalf the
\nsame should have been called for, but the said issue has been raised for the first
\ntime in the counter affidavit and not at any stage prior thereto. Similarly, in
\nrelation to the fulfilllment of the criteria of Sub-clause (b) of Clause 3.2, the
\npetitioner had been able to show that whereas the amount of civil contract
\nperformed by it, which is considered to be an indigenous item amounting to
\nRs. 53,12,820\/-, the amount which had been the subject matter of import was to
\nthe extent of US $ 517913.00 was not taken into consideration.\n<\/p>\n
 34. It may be true that the Escorts Heart Institute and Research Centre
\nplaced an order for supply of articles directly to M\/s Hill Rom Company Inc. but
\neven such an order had been placed through the petitioner. The petitioner had
\ncontended that the project was a turnkey one and in that view of the matter, the
\nrespondents could not have, without asking the petitioner to explain to its stand in
\nrelation thereto, taken a unilateral decision to the effect that the import element
\nshould be excluded only because an order for supply thereof was placed before
\nM\/s Hill Rom Company Inc. and not upon the petitioner.\n<\/p>\n
 35. From the certificates of Escorts Heart Institute and Research
\nInstitute, it is evident that the said Hospital considered the entire project to be an
\nintegrated one, and they put the value thereof at Rs. 4 crores. Accordingly, the
\nsaid project comprised of indigenous and imported components. Once both the
\ncomponents were taken to be one by the Hospital concerned, ex facie the
\npetitioner had fulfillled the pre-conditions thereof. Furthermore, from the General
\nAuthority letter dated 20.07.2001 issued by M\/s Hill Rom Company Inc. the
\npetitioner has been able to show that it is the authorized distributor of M\/s Hill
\nRom Company Inc.  <\/p>\n
 36. Sub-clause (c) of Clause 3.2 specifies the modalities as to how the
\nmandatory requirements of Sub-clauses (a) and (c) thereof were to be taken into consideration. The firm is either to be a manufacturer or authorized
\nrepresentative of the manufacturer of equipments. Once the authorized
\nrepresentative of the manufacturer of equipment becomes also entitled to
\nparticipate in the tender process, there cannot be any doubt that by reason thereof
\na legal fiction has been created to the effect that even an authorized representative
\nof the manufacturer of equipment would be deemed to be manufacturer for the
\nsaid purpose. Unfortunately this aspect of the matter has not been considered by
\nthe respondents at all.\n<\/p>\n
 37. It may be true as has been submitted by Ms. Pinki Anand that the
\naverage annual turnover was to be supported by audited balance sheets and ITC
\ncertificates. The petitioner had also been issued a certificate of its Chartered
\nAccountant, which is dated 22.03.2002. It may be for the purpose of income-tax
\nassessment, the transaction as the authorised representative of MI, Hill Rom & Co
\nmight have been taken into consideration separately, but the same would not
\nmean that the petitioner does not fulfilll the essential conditions of contract.\n<\/p>\n
 38. It is a well-settled principle of law that ‘Notice’ cannot prevail over
\nthe main provision. ‘Notice’ is an explanatory in nature. Thus, it does not restrict
\nthe main provision and in that view of the matter, only because for the purpose of
\naccounting the petitioner had been maintaining separate accounts, the same by
\nitself cannot be a ground to hold that the petitioner does not fulfilll the conditions
\nthereof.\n<\/p>\n
 39. Furthermore, had the authorities of the respondents thought that the
\npetitioner is disqualified on the basis of the documents supplied by the petitioner,
\nthere was evidently no reason as to why it thought for seeking further
\nclarifications. When clarifications in relation to other matters had been sought for
\nthe respondent No. 1 from the petitioner, it could have followed the same
\nprocedure in this case also.\n<\/p>\n
 40. We, however, do not mean to lay down a law that only because
\ncertain clarifications had been asked for, the petitioner is not required to fulfilll the
\nessential criteria. The respondents are also bound by the procedure stipulated in
\nthe tender process. In any event, the present contract also admittedly involves
\nsome element of import of some articles from the foreign companies.\n<\/p>\n
 41. Clause 15.3 of Bid Document of Invitation of Bid merely
\npostulates that the price bids of bidders whose offers (Techno-commercial bid)
\nare found technically and commercially substantially responsive to the Bid
\nDocument would be opened at different points of time. On 31.07.2000 the
\npetitioner was disqualified by the respondent No. 1. The recommendations were
\nmade on the same date of the opening commercial bid and financial bid on the
\nsame date. After the bidder pass the test of pre-qualification, the commercial bid
\nand the financial bid ought to have been opened on different dates, when
\nparticularly a provision for time has expressly been made in the tender documents
\nthat having regard to the complexity of the problem, the documents were required
\nbe scrutinized thoroughly.\n<\/p>\n
 42. Such an indecent haste amounts to malice on the part of the
\nconcerned authority.\n<\/p>\n
 43. In  Dr. S.P. Kapoor v. State of Himachal Pradesh and Ors. AIR<\/a> 1981 SC 2181, it was
\nheld:-\n<\/p>\n
  “It is seen from what has been stated above and it is
\nalso admitted by the Himachal Pradesh Government
\nthat the selection of the Deputy Directors and the
\nDirector of Health Services from amongst the Deputy
\nDirectors had been made by the Departmental
\nPromotion Committee on 3-11-1979 itself and that
\neven the order of appointment had been issued on
\nthe same day with the approval of the Governor of
\nHimachal Pradesh. Though before the High Court it
\ndoes not appear that Dr. Jiwan Lal had alleged any
\nmala fides to anybody he has alleged in the Special
\nLeave Petition that the constitution of the
\nDepartmental Promotion Committee and the process
\nof selection and appointment were obviously mala
\nfide and that they were appointed on the date on
\nwhich Mr. Yadav, the regular Secretary, Health and
\nFamily Welfare Department, was on leave and that
\nthis haste suggests that he would not have agreed to
\ncarry out the pulicidal wish of the then Chief Minister
\nin making the appointments in the post haste manner.
\nThough it is not possible to accept the belated
\ncontention that there was any mala fides on the part
\nof the then Chief Minister in the matter of
\nconstitution of the Departmental Promotion
\nCommittee with his Principal Secretary as one of its
\nmembers in the place of the regular Secretary, Health
\nand Family Welfare, we are of the opinion that there
\nis room for suspecting the reason why the whole
\nthing was completed in haste on 3-11-1979 after the
\npreparation of the final seniority list on 2-11-1979, in
\nthe light of the admitted position that the Deputy
\nDirectors and Directors of Health Services, Himachal
\nPradesh were holding ad hoc appointments from
\n1973. The matter was not such as could not have
\nbeen put off by a few days. Such rush is not usual in
\nany State Government. The post-haste manner in
\nwhich these things have been done on 3-11-1979
\nsuggests that some higher-up was interested in
\npushing through the matter hastily when the regular
\nSecretary, Health and Family Welfare was on leave.
\nTherefore, we are of the opinion that the matter
\nrequires to be considered afresh.”\n<\/p>\n
 44. In  Prestress India Corporation v. U.P. State Electricity Board
\nand Ors.<\/a> 1988 (Supp) SCC 716, it was held:-\n<\/p>\n
  “2. The appellant-company has come up before
\nthis Court against the judgment and order passed by
\nHigh Court allowing partial relief, i.e. directing the
\nrespondents to place forthwith with the petitioner an
\norder for supply of 25,000 PCC Poles instead of
\n50,000 PCC Poles for which the tender was
\nsubmitted, though the High Court held that the
\nrespondent Board acted in an arbitrary and
\ndiscriminatory manner in excluding from
\nconsideration the tender of the appellant. Against this
\njudgment and order the opposite party also filed a
\nspecial leave petition which was dismissed by this
\nCourt by an order dated October 29, 1987 (Annexure
\n‘I’ to this appeal). It has been urged on behalf of the
\nopposite parties that if the order of the Central Store
\nPurchase (sic. Committee of the) Board is illegal,
\ndiscriminatory and bad, the High Court can quash the
\nsame and issue a writ of mandamus directing the
\nBoard to consider the tender of the petitioner but it
\ncannot direct the Board to place orders for supply of
\nPCC Poles according to the tender submitted by the
\npetitioner. It has also been urged that it is for the
\nBoard to consider and decide regarding the
\nacceptance of the tender and the quantum of PCC
\nPoles to be supplied by the tenderer concerned. It has,
\ntherefore, been supplied that the impugned
\njudgment and order passed by the High Court should
\nbe quashed and set aside. It has also been contended
\nin this connection that this Court can mould the relief
\nas appears appropriate. These submissions have no
\nmerit inasmuch as the special leave petition filed on
\nbehalf of the respondents has already been dismissed
\nby this Court and thereby the order of the High Court
\ndirecting placing order with regard to 25,000 PC
\nPoles is upheld. Moreover, the High Court has come
\nto the following finding:\n<\/p>\n
  The Board dealt with the petitioner’s case
\nrather discriminately when compared in the
\ncontext of the attitude and manner in which
\nsome others or at least one tenderer was dealt
\nwith. Accordingly, the action of the Board
\nhas to be held unreasonable, unfair and
\nsuffering from vice of arbitrariness. The
\naction in completely excluding the petitioner
\nfrom this tender was clearly not in
\nadvancement of public interest.\n<\/p>\n
 3. In view of this finding the direction given by
\nthe High Court for placing an order for supply of
\nonly 50 per cent of the PCC Poles to the appellant
\ncompany is unwarranted.”\n<\/p>\n
 45. In  Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors.<\/a> ,
\nit was held:-\n<\/p>\n
 “17. We are of the opinion that in all such cases
\nwhether public law or private law rights are involved,
\ndepends upon the facts and circumstances of the case.
\nThe dichotomy between rights and remedies cannot
\nbe obliterated by any strait-jacket formula. It has to
\nbe examined in each particular case. Mr. Salve sought
\nto urge that there are certain cases under Article 14 of
\narbitrary exercise of such “power” and not cases of
\nexercise of a “right” arising either under a contract or
\nunder a statute. We are of the opinion that that would
\ndepend upon the factual matrix.\n<\/p>\n
 18. Having considered the facts and circumstances of
\nthe case and the nature of the contentions and the
\ndealing between the parties and in view of the present
\nstate of law, we are of the opinion that decision of the
\nState\/public authority under Article 298 of the
\nConstitution, is an administrative decision and can be
\nimpeached on the ground that the decision is arbitrary
\nor violative of Article 14 of the Constitution of India
\non any of the grounds available in public law field. It
\nappears to us that in respect of corporation like IOC
\nwhen without informing the parties concerned, as in
\nthe case of the appellant-firm herein on alleged
\nchange of policy and on that basis action to seek to
\nbring to amend to course of transaction over 18 years
\ninvolving large amounts of money is not fair action,
\nespecially in view of the monopolistic nature of the
\npower of the respondent in this field. Therefore, it is
\nnecessary to reiterate that even in the field of public
\nlaw, the relevant persons concerned or to be affected,
\nshould be taken into confidence. Whether and in what
\ncircumstances that confidence should be taken into
\nconsideration cannot be laid down on any strait-jacket
\nbasis. It depends on the nature of the right
\ninvolved and nature of the power sought to be
\nexercised in a particular situation. It is true that there
\nis discrimination between power and right but
\nwhether the State or the instrumentality of a State has
\nthe right to function in public field or private field is
\na matter which, in our opinion, depends upon the
\nfacts and circumstances of the situation, but such
\nexercise of power cannot be dealt with by the State or
\nthe instrumentality of the State without informing and
\ntaking into confidence, the party whose rights and
\npowers are affected or sought to be affected, into
\nconfidence. In such situations most often people feel
\naggrieved by exclusion of knowledge if not taken
\ninto confidence.”\n<\/p>\n
 46. The decision of the Apex Court in  W.B. Electricity Board v. Patel
\nEngineering Co. Ltd. and Ors.<\/a> (2001) 2 SCC 451 is not apposite. In that case, the mistake committed
\nby the tenderer was accepted. They intended to correct the said mistake, which
\nwas not permissible. It was in the aforementioned factual backdrop the Apex
\nCourt held:-\n<\/p>\n
 “24. The controversy in this case has arisen at the
\nthreshold. It cannot be disputed that this is an
\ninternational completive bidding which postulates
\nkeen competition and high efficiency. The bidders
\nhave or should have assistance of technical experts.
\nThe degree of care required in such a bidding is
\ngreater than in ordinary local bids for small works. It
\nis essential to maintain the sanctity and integrity of
\nprocess of tender\/bid and also award of a contract.
\nThe appellant, Respondents 1 to 4 and Respondents
\n10 and 11 are all bound by the ITB which should be
\ncomplied with scrupulously. In a work of this nature
\nand magnitude where bidders who fulfill
\nprequalification alone are invited to bid, adherence
\nto the instructions cannot be given a go-by by
\nbranding it as a pedantic approach, otherwise it will
\nencourage and provide scope for discrimination,
\narbitrariness and favoritism which are totally
\nopposed to the rue of law and our constitutional
\nvalues.\n<\/p>\n
 31. The submission that remains to be considered
\nis that as the price bid of Respondents 1 to 43 is
\nlesser by 40 crores and 80 crores than that of
\nRespondents 11 and 10 respectively, public interest
\ndemands that the bid of Respondents 1 to 4 should be
\nconsidered. The Project undertaken by the appellant
\nis undoubtedly for the benefit of the public. The
\nmode of execution of the work of the Project should
\nalso ensure that the public interest is best served.
\nTenders are invited on the basis of competitive
\nbidding for execution of the work of the Project as it
\nserves dual purposes. On the one hand it offers a fair
\nopportunity to all those who are interested in
\ncompeting for the contract relating to execution of the
\nwork and, on the other hand it affords the appellant a
\nchoice to select the beast of the competitors on a
\ncompetitive price without prejudice to the quality of
\nthe work. Above all, it eliminates favoritism and
\ndiscrimination in awarding public works to
\ncontractors. The contract is, therefore, awarded
\nnormally to the lowest tenderer which is in public
\ninterest. The principle of awarding contract to the
\nlowest tenderer applies when all things are equal. It is
\nequally in public interest to adhere to the rules and
\nconditions subject to which bids are invited. Merely
\nbecause a bid is the lowest the requirements of
\ncompliance with the rules and conditions cannot be
\nignored. It is obvious that the bid of Respondents 1 to
\n4 is the lowest of bids offered. As the bid documents
\nof Respondents 1 to 4 stand without correction there
\nwill be inherent inconsistency between the particulars
\ngiven in the annexure and the total bid amount, it (sic
\nthey) cannot be directed to be considered along with
\nthe other bids on the sole ground of being the
\nlowest.”\n<\/p>\n
 47. Each decision as is well known must be considered on the factual
\nmatrix involved therein. A little difference in facts or an additional fact, may
\nmake a lot of difference in arriving at a different decision.  (See Regional
\nManager v. Pawan Kumar Dubey,<\/a> ).\n<\/p>\n
 48. Further in  Haryana Financial Corporation and Anr. v.
\nJagdamba Oil Mills and Anr.,<\/a> , it was held:-\n<\/p>\n
 “19. Courts should not place reliance on
\ndecisions without discussion as to how the factual
\nsituation fits in with the fact situation of the
\ndecision on which reliance is placed. Observations
\nof Courts are not to be read as Euclid’s theorems
\nnor as provisions of the statute. These observations
\nmust be read in the context in which they appear.
\nJudgments of courts are not to be construed as
\nstatutes. To interpret words, phrases and provisions
\nof a statute, it may become necessary for judges to
\nembark into lengthy discussions but the discussion
\nis meant to explain and not to define. Judges
\ninterpret statutes, they do not interpret judgments.
\nThey interpret words of statutes, their words are not
\nto be interpreted as statutes. In  London Graving
\nDock Co. Ltd. v. Horton  (1951 AC 73  at P. 761),
\nLord Mac Dermot observed:\n<\/p>\n
  “The matter cannot, of course,
\nbe settled merely by treating the
\nipsissima vertra of Willies, J. as though
\nthey were part of an Act of Parliament
\nand applying the rules of interpretation
\nappropriate thereto. This is not to
\ndetract from the great weight to be given
\nto the language actually used by that
\nmost distinguished judge.”\n<\/p>\n
 The  Home Office v. Dorset Yacht Co.  (1970
\n(2) All ER 294)  Lord Reid said, “Lord Atkin’s
\nspeech….. is not to be treated as if it was a
\nstatute definition. It will require qualification in
\nnew circumstances.” Megarry, J. in  (1971) 1 WLR
\n1062  observed: “One must not, of course, construe
\neven a reserved judgment of even Russell L.J. as if
\nit were an Act of Parliament.” And, in  Herrington
\nv. British Railways Board,  (1972) 2 WLR 537  Lord
\nMorris said:\n<\/p>\n
  “There is always peril in
\ntreating the words of a speech or
\njudgment as though they are words in a
\nlegislative enactment, and it is to be
\nremembered that judicial utterances
\nmade in the setting of the facts of a
\nparticular case.”\n<\/p>\n
 Circumstantial flexibility, one additional or
\ndifferent fact may make a world of difference
\nbetween conclusion in two cases. Disposal of
\ncases by blindly placing reliance on a decision is
\nnot proper.\n<\/p>\n
 20. The following words of Lord Denning in the
\nmatter of applying precedents have become locus
\nclassicks:\n<\/p>\n
  “Each case depends on its own facts and
\na close similarity between one case and
\nanother is not enough because even a
\nsingle significant detail may alter the
\nentire aspect. In deciding such cases,
\none should avoid the temptation to
\ndecide cases (as said by Cordozo) by
\nmatching the colour of one case against
\nthe colour of another. To decide,
\ntherefore, on which side of the line a
\ncase falls, the broad resemblance to
\nanother case is not at all decisive.”\n<\/p>\n
 xxx  xxx  xxx  xxx<\/p>\n
  “Precedent should be followed only so
\nfar as it marks the path of justice, but
\nyou must cut the dead wood and trim off
\nthe side branches else you will find
\nyourself lost in thickets and branches.
\nMy plea is to keep the path to justice
\nclear of obstructions which could
\nimpede it.”\n<\/p>\n
 49. For the reasons aforementioned, we are of the opinion that the
\nrespondent No. 1 committed an illegality inholding that the petitioner is not
\nentitled to be considered for techno-commercial bid. The respondents are,
\ntherefore, directed to give an opportunity to the petitioner to participate in the
\ntender process. It may for the aforementioned purpose take any measure, which
\nwould be fair and equitable to all the parties.\n<\/p>\n
 50. This writ petition is allowed with the aforementioned observations
\nand directions without any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court P.E.S. Installation Pvt. Ltd. vs Hospital Services Consultancy … on 25 September, 2002 Author: S Sinha Bench: S Sinha, A Sikri JUDGMENT S.B. Sinha, C.J. 1. The petitioner is a company registered under the Indian Companies Act. It carries on business of supplying medical equipments. 2. A notice inviting tender was issued […]<\/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":[14,8],"tags":[],"class_list":["post-61278","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nP.E.S. Installation Pvt. 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