TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 2690
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....isposed of by this common order. 2. We may record the facts as arising in SCA No.15371 of 2015. Petitioner No.1 is a Company registered under the Companies Act. Petitioner No.2 is a Director of the Company. Petitioners are engaged in civil construction activities. Respondent No.2-Botad Municipality invited tenders for carrying out civil construction works by issuing tender notice dated 08.09.2015. As per this notice, estimated cost of the work was Rs. 1,26,20,411/-. Tender fee was.5,000/- non-refundable. Earnest Money Deposit (EMD) of Rs. 1,26,204/- was demanded. This tender notice itself did not specify the mode of payment of these two amounts. However, separate notice inviting on-line tender contains such details in para-11 which reads a....
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.... petitioners were disqualified, the petitioners have approached this Court challenging the action of respondent No.2 in not considering their financial bids. Facts in other petitions are similar. 4. On 22.09.2015 while issuing notice, we had prevented the respondents from awarding the contract pursuant to the tender process in question. In response to such notice, respondent No.2 Nagar Palika has appeared and filed reply. 5. Learned counsel Mr.Buch for the petitioners submitted that the petitioners had no reason to offer the EMD through FDR instead of DD, if the system had accepted such mode and if insistence of the validity of DD of 120 days was not made by the Municipality. Since it was not possible to satisfy both these conditions, nam....
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....rson inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to consequence of noncompliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J.Fernandez vs. State of Karnataka & Ors . , 1990(2) SCC 488. " 7. Counsel also relied on a decision of the Supreme Court in case of Global Energy Ltd. And Another v. Adani Exports Ltd. and Others reported in (2005)4 SCC 435 also in support of the contention that the petitioners, who had breached the essential condition, were rightly disqualified. 8. Having heard learned cou....
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....ioners cannot be blamed for this minor variation. Firstly, as noted above, the two anomalies in the tender process were on account of the inadvertent oversight on the part of respondent No.2 Municipality. Its on-line format did not accept EMD through DD. Instead, it insisted on details of FDR. Secondly, the condition of the DD having validity of 120 days also was possible of creating considerable doubt. No tenderer would have fulfilled this requirement. We are informed that other contractors, instead, tendered the EMD through DD of validity of 90 days. If, under the circumstances, the petitioners, instead of taking the liberty of furnishing DD of a validity lesser than what was insisted by the authorities, presented the same through FDR, th....
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....ion on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers' cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench. ......" 11. The facts of the present case are vitally different. The petitioners never intended to participate in the tender process without payment of EMD. Only the mode of depositing such amount was the cause of some confusion. As noted above, such confusion was possible on account of the inadvertent error on the part of respondent No.2 Municipality. Bona fides of the petitioners can....