IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 7016 of 2009(V) -------------------------------- PETITIONER(S): ------------------ M/S.STERICAT GUTSTRINGS (P) LIMITED, PLOT NO.169 SECTOR - 4, IMT - MANESAR, GURGAON, HARYANA, REPRESENTED BY ITS REGIONAL MANAGER, M.DHARMAPALAN, S/O.P.V.K.NAMBIAR, 44 YEARS. BY ADV. SRI.P.DEEPAK RESPONDENT(S): ------------------- KERALA MEDICAL SERVICES CORPORATION LIMITED, REP. BY MANAGING DIRECTOR, THYCAUD, THIRUVANANTHAPURAM, SRI.M.AJAY FOR RESPONDENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOW ING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 7016 OF 2009 (V) ==================== Dated this the 5th day of March, 2009 J U D G M E N T In response to Ext.P2 tender for the supply of drugs and supplies to the Kerala Medical Services Corporation Limited, the respondent herein, petitioner submitted his tender. Petitioner submits that he was technically qualified and that his bid was also opened. It is stated that on opening the price bid, it was known that their bid was the lowest in respect of 14 items quoted by them. However, in the final list, they were excluded for reasons which are unknown and it is in those circumstances, this writ petition has been filed for a direction to the respondent to treat the tender submitted by the petitioner pursuant to Ext.P2 as valid and to consider their price bid and finalise the tender on that basis. 2. Sri.Ajay, Standing Counsel appearing for the respondent on instruction submits that in terms of the conditions of the tender, Earnest Money Deposit is to be made by a prospective tenderer. Clause 4(a) of Ext.P2, reads as under; “Earnest Money Deposit, IF NOT EXEMPTED, shall be equal to 1% of the total aggregate value of items tendered for, subject to a minimum of Rs.30,000/- in the form of Demand Draft”. WPC 7016/09 :2 : 3. It is stated that the total aggregate value of the items tendered by the petitioner was Rs.3,49,04,646.94 and that in terms of the tender conditions, the petitioner ought to have made an Earnest Money Deposit of 1% of the above amount and that as against this tender requirement, along with the technical bid, petitioner had made an Earnest Money Deposit of Rs.30,000/- only. It is stated that on opening the price bid, it was found that the Earnest Money Deposit made by the petitioner was not in compliance with the tender conditions and therefore the bid was rejected. 4. Counsel for the petitioner referring to some of the tender conditions contended that for non compliance of the Earnest Money Deposit prescribed in Ext.P2, the tender cannot be rejected. According to him, in the tender notice itself, it is provided that in respect of certain violations, the tender is liable for summary rejection and that a similar condition in so far as the non compliance with the Earnest Money Deposit is not provided. It is therefore submitted that the tender ought to have been accepted and its rejection is erroneous. 5. I am not in a position to accept this contention. The provisions provided for summary rejection referred to in Ext.P2 WPC 7016/09 :3 : are of at a stage prior to the opening of the price bid. Admittedly a tender in question is a two part one and the Earnest Money Deposit is to be enclosed along with the technical bid. It is only after the price bid is opened and assessed, will the respondent come to know of the aggregate value of the items tendered for, and it is only at that stage, is it possible for the respondent to find out the inadequacy of the Earnest Money Deposit, as in this case. If that be so, the contention of the counsel for the petitioner that the tender was not liable for rejection for the inadequacy of the Earnest Money Deposit after prequalification cannot be accepted. 6. The condition in a tender notice requiring for Earnest Money Deposit has to be taken as a mandatory one. In this case, admittedly the tender condition in that respect has not been complied with. If that be so, tender is an invalid one and I cannot find fault with the respondent for rejecting the tender submitted by the petitioner for non compliance of the aforesaid tender conditions. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp