A.M.A. OIL MILL v. STATE OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **WP(C).No.5071 of 2019** ## **PETITIONER/S:** **A.M.A. OIL MILL, 14/433A, NELLUMPURATH BUILDING, ASSAMANOOR P.O., PUNNAYAM, ODAKKALI- 683 549, ERNAKULAM DIST., KERALA, REP. BY ITS MANAGING PARTNER, BEEVI ALIYAR.** **BY ADVS. SRI.BIJU BALAKRISHNAN SHRI.SOORAJ S. SMT.V.S.RAKHEE SRI.DINIC J.COYCARA** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY ITS SECRETARY, CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 SUPPLYCO, THE KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, PB NO.2030, GANDHI NAGAR, KOCHI-682 020, REP. BY ITS CHAIRMAN CUM MANAGING DIRECTOR. 3 TENDER INVITING AUTHORITY, THE KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, P.B. NO.2030, GANDHI NAGAR, KOCHI- 682 020, REP. BY ITS MANAGER, TEA AND BRANDED PRODUCTS. 4 ICICI BANK LTD., KOLANCHERRY BRANCH, PALLIMUKALEN BUILDING, KOLANCHERRY P.O., ERNAKULAM DIST - 682 311.** W.P.(C) No.5071 of 2019 2 ***ADDL. THE KERALA STATE IT MISSION R5 E-GOVERNMENT PROCUREMENT PMU & HELP DESK BASEMENT FLOOR, PENSION TREASURY BUILDING, UPPALAM ROAD, STATUE, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS DIRECTOR.** **BY ADVS. R1 & ADDL.R5 - SRI. B. VINOD, SENIOR GOVERNMENT PLEADER R2 & R3 - SMT. MOLLY JACOB, SC R4 - SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.P.M. KUNJIMOIDEENKUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.5071 of 2019 3 ## **JUDGMENT** This writ petition is filed by a contractor who has participated in the tender floated by the 2[nd] respondent, i.e., the Kerala State Civil Supplies Corporation Ltd. (SUPPLYCO), for the supply of AGMARK Grade Coconut Oil in 'Sabari Brand' for Thiruvananthapuram, Kottayam, Ernakulam, Palakkad and Kozhikode regions of SUPPLYCO, seeking direction to consider Ext.P2 Technical Bid submitted by the petitioner and evaluate the same before the Price Bid is opened. Brief material facts for the disposal of the writ petition are as follows: 2. The 2[nd] respondent has invited Ext.P1 E-tender for the supply of the above said product, and accordingly, petitioner submitted the Technical Bid through online in the address provided by the 2[nd] and 3[rd] respondents, evident from Ext.P2. As per the conditions in Ext.P1, it is submitted that, petitioner has furnished EMD amount of Rs.1,00,000/- in the account provided by the 3[rd] respondent through online gateway, evident from Ext.P3. Therefore, the case of the petitioner is that, petitioner has submitted Exts.P2 and P3 successfully before the respondents through online, and computer screenshot evidencing the W.P.(C) No.5071 of 2019 4 successful submission of Exts.P2 and P3 before the respondents is produced as Ext.P4. 3. However, respondents 2 and 3 have taken a stand that they have received the amount only at 7.10 p.m. on 12.02.2019, i.e., on the last date after the prescribed time period at 5.00 p.m. It is submitted by the petitioner that, this might have happened only because of the mistake on the side of the 4[th] respondent, i.e., the ICICI Bank Ltd., and no manner of illegality can be attributed to the petitioner. Therefore, when the Technical Bid was opened by the respondents on 16.02.2019, petitioner's bid was not considered on the ground that it is not received on time. Accordingly, petitioner has submitted Ext.P5 representation on 18.02.2019, and similar representations were also submitted before 1[st] and 3[rd] respondents, however, no action was initiated. These are the basic background facts projected by the petitioner to secure the reliefs sought for in the writ petition. Petitioner has also produced additional documents along with interlocutory applications to establish the submissions made in the writ petition. 4. The Kerala State IT Mission is also impleaded as additional 5[th] respondent in the writ petition. W.P.(C) No.5071 of 2019 5 5. The 2[nd] respondent has filed a very detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, as per Ext.P1 Tender Notice, the last date and time for uploading E-tender documents was up to 5 p.m. on 12.02.2019. It was further stipulated thereunder that the opening date of Technical bid of the E-tender was on 16.02.2019 at 2.30 p.m. It is also stipulated that the tender submitted without EMD will be rejected and no exemption for submitting EMD will be allowed under any circumstances. The EMD furnished by the petitioner was not within the time limit. Therefore, the averment of the petitioner that the payment of EMD amount of Rs.1,00,000/- was within the time period and completed the E-tender formality is not correct. As per the record generated by the E-Tendering system of Government of Kerala, petitioner has not completed the tender procedure completely and their status is shown as 'NA'. True copy of the report is produced as Ext.R2(a). Therefore, according to the 2[nd] respondent, the claim raised by the petitioner that it has completed all formalities for participation in the E-tender through online is not true or correct. W.P.(C) No.5071 of 2019 6 6. That apart, it is stated that the name of the petitioner would have reflected in the Tender site only if the prescribed formalities are completed. It is also the case of the 2[nd] respondent that, the 2[nd] respondent cannot take a different stand with respect to the payment received after the stipulated time than what is prescribed in Ext.P1 Tender documents, and it is the E-procurement system of Government of Kerala that decides the validity of the bid primarily on the completion of the procedures and the 2[nd] respondent has no manner of control in checking the validity of the bid submitted through online by the bidders, and therefore, 2[nd] respondent is not responsible in any way for the mistake committed by the 4[th] respondent Bank. Since the procedure for submission of the tender was clearly specified in Ext.P1 in unequivocal terms, petitioner cannot now turn around and contend otherwise. It is also pointed out that, no other _malafides_ or illegality is attributed against the 2[nd] respondent so as to interfere with the action of rejecting the Technical bid submitted by the petitioner. 7. A reply affidavit is also filed by the petitioner, reiterating the contentions raised in the W.P.(C) No.5071 of 2019 7 writ petition. 8. I have heard Sri. Biju Balakrishnan, learned counsel for the petitioner, Smt. Molly Jacob, learned Standing Counsel appearing for respondents 2 and 3, Sri. B. Vinod, learned Senior Government Pleader appearing for respondents 1 and 5, and Sri. Lal K. Joseph, learned counsel appearing for the 4[th] respondent. Perused the pleadings and the documents on record. 9. The discussion of facts made above would make it clear that, the sole issue to be considered is, whether any manner of interference is warranted to the stand adopted by the 2[nd] respondent in rejecting the Technical bid submitted by the petitioner. In order to ascertain the legality of the action of the 2[nd] respondent, I have gone through Ext.P1 Tender notification and find that each and every aspect for participating in the tender proceedings is provided in Ext.P1. Therefore, Ext.P1 Tender Notice has to be accepted as the rule of the tender proceedings. It was clearly stated thereunder that the tender shall be submitted along with EMD at or before 5 p.m. on 12.02.2019. The contention of the petitioner is that, petitioner has taken necessary steps for submitting the W.P.(C) No.5071 of 2019 8 EMD through the Bank, evident from Ext.P3. From Ext.P3, what I could gather is that, on 11.02.2019, an amount of Rs.1,00,000/- was withdrawn from the account of the petitioner, and as per Ext.P4, what is discernible is, a payment has already been initiated for the same reference number, and therefore, the request of the petitioner cannot be processed. Anyhow, Exts.P3 and P4 relied upon by the petitioner to canvass the proposition that EMD was paid at or before the stipulated time cannot be relied upon to enter into a conclusive finding in respect of that aspect. Merely because petitioner has withdrawn an amount of Rs.1,00,000/- towards EMD from the Bank of the petitioner and has taken steps, that will not suffice the situation, because it is clearly stipulated in Ext.P1 that the EMD should reach at or before 5 p.m. on 12.02.2019 along with the tender as well as other documents. 10. It is an admitted fact that, EMD was received by the Tendering authority, evident from Ext.R2(a) only at 07.10 p.m. on 12.02.2019, i.e., after the appointed time. Case projected by the 2[nd] respondent is that, the E-tender system was developed by the State Government and it is fully automatic, and if the bid 9 W.P.(C) No.5071 of 2019 documents along with the EMD were not received at or before the appointed date and time, then automatically the portal will close and whatever amount received will be rejected thereafter. It was accordingly that the tender in respect of the petitioner's bid received at 7.10 p.m. was rejected by the system, and there is no manner of control for the 2[nd] respondent in that matter, since the system is regulated by the additional 5[th] respondent, i.e., the Kerala State IT Mission. 11. Going by the counter affidavit filed by the additional 5[th] respondent, it is clear that the _login id_ of the petitioner for logging into the State e- tenders portal is amaoilmills2018@gmail.com, and on examining the bidder activity report for the above _login id_ , the participation is 'zero'. According to the 5[th] respondent, it shows that the bidder with the said _login id_ has not participated in any tenders and the Bidder Performance Report is produced as Ext.R5(b). 12. On evaluation of the respective submissions made across the Bar, I am of the considered opinion that, it was due to the mistake on the part of the petitioner that the Technical bid of the petitioner was not accepted by the system generated for acceptance of the tender. In fact, the 2[nd] respondent has no manner W.P.(C) No.5071 of 2019 10 of liability in the modulation of the system generated for the purpose, and it is fully managed by the 5[th] respondent. It is clear from the contentions put forth by the 2[nd] and 5[th] respondents that the system was fully automatic and only if the bid along with the required documents and EMD were submitted before the appointed date and time, the system will accept the same and any tender received along with the EMD thereafter will be rejected. This is exactly what was happened in the case of the petitioner. 13. Though learned counsel for the petitioner has invited my attention to the judgments of the apex court in ' _**Agarwal Roadlines Pvt. Ltd. v. Indian Oil Corporation Ltd. and Others**_ ' [2003 (1) Mh.L.J.], ' _**M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works and Others**_ ' [AIR 1991 SC 1579], the judgment of the Bombay High Court in ' _**Bharat Conductors Pvt.**_ _**Limited, Bangalore and Another v. Executive Engineer, Office of the Executive Engineer, Electricity Department, Margao and Others**_ ' [2017 KHC 2118] and the judgment of this Court in W.P.(C) No.17721 of 2017 dated 13.06.2017, I am of the considered opinion that, the factual circumstances involved in the said cases are entirely different than the one projected by the W.P.(C) No.5071 of 2019 11 petitioner. 14. It is true, in those judgments certain minor errors happened at the time of processing the tenders were directed to be ignored and the Technical Bid submitted was directed to be considered. However, the facts and circumstances of this case is entirely different, and it is an admitted fact that petitioner has not submitted the Bid in accordance with the procedure prescribed under Ext.P1 Tender notification. It is also clear that petitioner has not alleged any _malafides_ against the 2[nd] respondent. It is also clear and explicit that the respondents have acted only in terms of the Tender Notification and, therefore, it cannot be said that there was any legal infirmity on the part of the respondents in considering the Technical Bid submitted by the petitioner. 15. Learned Standing Counsel appearing for the 2[nd] respondent has invited my attention to the judgment of the apex court in ' _**Maharashtra Housing Department**_ _**Authority v. Shapoorji Pallonji and Company Private**_ _**Limited and Others**_ ' [2018 (3) SCC 13 : 2018 KHC 6100], wherein the question with respect to the E-bid was considered and held that lack of any timely response of the bidder cannot be attributed against the Tender W.P.(C) No.5071 of 2019 12 Inviting authority, and therefore, the directions issued by the High Court in favour of the tenderer virtually confers on the said respondent a second opportunity which cannot be countenanced. I find force in the contention put forth by the learned Standing Counsel appearing for the 2[nd] respondent on the basis of the judgment so rendered by the apex court. Moreover, it is significant to note that the tender conditions are not under challenge or the petitioner has a case that the terms and conditions are unfair, unreasonable or capricious. So much so, the stipulations contained in the tender documents are explicit and unambiguous and even understandable to a bidder to participate in the proceedings without any confusions and complexities. Therefore, I am of the clear opinion that the agreement authority was just, fair and reasonable in all its actions and has acted only within the four corners of the rule governed it. The factual and legal discussions made above would make it clear that, petitioner has not made out any case of arbitrariness, illegality or _malafides_ , justifying interference of this Court under Article 226 of the Constitution of India. W.P.(C) No.5071 of 2019 13 The writ petition fails, accordingly it is dismissed. **Sd/SHAJI P.CHALY JUDGE** St/01.08.2019 W.P.(C) No.5071 of 2019 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TENDER NO TBP3/38237/18 DATED 24.1.2019.** - **EXHIBIT P2 TRUE COPY OF THE TECHNICAL BID SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE BANK STATEMENT DATED 11.2.2019.** - **EXHIBIT P4 TRUE COPY OF THE COMPUTER SCREENSHOT EVIDENCE IN THE SUCCESSFUL SUBMISSION OF EXT.P2 & P3 BEFORE RESPONDENTS.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 18.2.2019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 19.2.2019 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDING NO.TBP3.38237/18 DATED 1.3.2019 OF THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 21.3.2019 IN W.A.NO.848/2019 OF THIS HON'BLE COURT.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 16.4.2019 IN SPECIAL LEAVE TO APPEAL (C)NO.9591/2019 OF THE SUPREME COURT OF INDIA.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 NIL** - **EXHIBIT R2 PHOTO COPY OF THE REFUND/SETTLEMENT TENDER WISE REPORT** **EXHIBIT R5(A) A TRUE COPY OF THE E-MAIL SENT TO THE PETITIONER DATED 3/8/2019.** - **EXHIBIT R5(B) TRUE COPY OF THE BIDDER PERFORMANCE REPORT.** //TRUE COPY// P.S. TO JUDGE St/-