WP (C) No.8632/2008 Page 1 of 6 * HIGH COURT OF DELHI : NEW DELHI + Writ Petition (Civil) No.8632 of 2008 Judgment reserved on: January 14, 2008 % Judgment delivered on: January 19, 2009 M/s Brawn Laboratories Limited Through its Director Mr. B.R. Gupta Corp. Off.: 4/4B, Asaf Ali Road Delhi Stock Exchange Building New Delhi – 110002 …Petitioner Through Mr. Valmiki Mehta, Sr. Adv. with Mr. B.K. Dash, Adv. Versus Govt. of NCT of Delhi The Director of Health Services Swasthya Sewa Nideshalaya Bhawan F-17, Karkardooma New Delhi – 110032 …Respondent Through Mr. Rajiv Nanda with Mr. Pareena Swarup & Mr. Ameet Singh, Advs. Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Not necessary 3. Whether the judgment should be reported in the Digest? Not necessary WP (C) No.8632/2008 Page 2 of 6 MADAN B. LOKUR, J. A tender notice was issued by the Respondent on 31st March, 2008 by which sealed tenders were invited from licensed Indian drug manufacturers for entering into a running rate contract for the supply of drugs to hospitals and institutions under the Respondent for a period of two years. It was specifically mentioned in the advertisement that the manufacturers should have an annual turnover of pharmaceutical products of Rs.35 crores or more per annum for the years 2004-05, 2005-06 and 2006-07. The tender closing date and the opening date of the technical bids was the same, that is, 7th May, 2008. 2. The Petitioner had a turnover of Rs.33.08 crores for the year 2004-05, a turnover of Rs.44.14 crores for the year 2005-06 and a turnover of Rs.53.39 crores for the year 2006-07. Ex facie, the Petitioner was not eligible to submit its bid. According to the Petitioner, it had a turnover of Rs.70.57 crores in the year 2007-08 and that this was very important and relevant. 3. Notwithstanding its ineligibility, the Petitioner obtained the tender documents in which also it was mentioned that the turnover of WP (C) No.8632/2008 Page 3 of 6 pharmaceutical items during the last three years (year-wise for 2004-05, 2005-06 and 2006-07) should be duly certified by a registered Chartered Accountant and that a statement along with a copy of the balance sheet and profit and loss account for those years should be submitted along with the tender documents. 4. On 7th May, 2008 the bids were opened and as one would expect the Petitioner was found ineligible, not having the turnover required for 2004-05. 5. On or about 2nd December, 2008, that is, almost after five months of the bids being opened, the Petitioner approached this Court by filing a writ petition under Article 226 of the Constitution praying, inter alia, for an appropriate writ, order or direction to the Respondent to consider the case of the Petitioner on the basis of its turnover for the immediate past three years, that is, 2005-06, 2006-07 and 2007-08. 6. According to the Petitioner, what is relevant is the immediate past performance of the bidders and for this purpose the immediate previous years should be taken into consideration for fixing the WP (C) No.8632/2008 Page 4 of 6 eligibility criteria. In other words, only the years 2005-06, 2006-07 and 2007-08 should have been considered by the Respondent. It was submitted that the Respondent should not have considered the turnover for 2004-05 which was almost four years ago. It was also submitted that when the Respondent stated in its bid documents that the financial statement for the “last three years” was to be furnished, what it meant was that the financial statement for 2005-06, 2006-07 and 2007-08 was to be furnished. 7. The Respondent has contested the writ petition by filing a counter affidavit and has stated that as many as 90 bids were received from those bidders who met the financial criteria laid down. It was submitted that since the tender was to be opened on 7th May, 2008 it was very unlikely that any of the bidders would have had the financial statement ready by that time since the income tax returns have to be filed much later. It was for this reason that three years being 2004-05, 2005-06 and 2006-07 were taken into consideration. 8. The last submission of the Respondent is countered by learned counsel for the Petitioner by submitting that in any case the WP (C) No.8632/2008 Page 5 of 6 sales tax turnover would have been available within 15 days of the completion of the first quarter, that is, by 15th April, 2008 and, therefore, the Respondent could very well have taken the financial statement of 2007-08 into consideration. 9. Be that as it may, we are not at all impressed by the submissions made by learned counsel for the Petitioner. It is crystal clear from the documents on record that what was required to be furnished was the financial statement for the years 2004-05, 2005-06 and 2006-07 and that the bidder should have had a turnover of Rs.35 crores or more per annum for each of these three years. The financial years having been specified, there can be no possibility of any ambiguity in understanding the terms of the tender documents. 10. We may note that if the Petitioner had even the slightest doubt about the financial requirements and whether the expression “last three years” meant 2004-05, 2005-06 and 2006-07 or 2005-06, 2006-07 and 2007-08, it could very well have made a representation for clarification to the Respondent. However, no such representation was made. The Petitioner did not even approach this Court for any relief of WP (C) No.8632/2008 Page 6 of 6 this nature or to challenge the terms of the tender. The Petitioner participated in the bid with its eyes wide open and, on the face of it, since the Petitioner did not meet the financial eligibility criteria, it was disqualified. It is now too late in the day for the Petitioner to make any grievance in this regard. By seeking the relief prayed for, learned counsel for the Petitioner wants us to rewrite one of the essential terms of the tender. Unfortunately, we cannot do so. 11. There is no merit in the writ petition. It is, accordingly, dismissed. The Petitioner will pay costs of Rs.15,000/- by depositing this amount by means of a demand draft in favour of the Registrar General of this Court within four weeks. 12. List for compliance on 26th February, 2009. MADAN B. LOKUR, J January 19, 2009 SIDDHARTH MRIDUL, J ncg Certified that the corrected copy of the judgment has been transmitted in the main Server.