IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.248 OF 2006 OF MOTION NO.248 OF 2006 OF MOTION NO.248 OF 2006 IN IN IN SUIT SUIT SUIT NO. 1320 OF 2004 NO. 1320 OF 2004 NO. 1320 OF 2004 SANTOSH SANTOSH SANTOSH G. RANE G. RANE G. RANE ... ... ... PLAITIFF. PLAITIFF. PLAITIFF. VS. VS. VS. MAHARASHTRA MAHARASHTRA MAHARASHTRA HOUSING & AREA HOUSING & AREA HOUSING & AREA DEVELOPMENT DEVELOPMENT DEVELOPMENT AUTHORITY & ORS. ... AUTHORITY & ORS. ... AUTHORITY & ORS. ... DEFENDATS. DEFENDATS. DEFENDATS. MR MR MR M.P.S.RAO WITH MR. RELE I/B. LEGAL VISIO FOR THE M.P.S.RAO WITH MR. RELE I/B. LEGAL VISIO FOR THE M.P.S.RAO WITH MR. RELE I/B. LEGAL VISIO FOR THE PLAINTIFF. PLAINTIFF. PLAINTIFF. MS. MS. MS. USHA PUROHIT FORDEFENDANT NO.4. USHA PUROHIT FORDEFENDANT NO.4. USHA PUROHIT FORDEFENDANT NO.4. MR. MR. MR. G.W.MATTOS AGP FOR THE DEFENDANT NO. 1 TO 3. G.W.MATTOS AGP FOR THE DEFENDANT NO. 1 TO 3. G.W.MATTOS AGP FOR THE DEFENDANT NO. 1 TO 3. Coram Coram Coram : S.K.Shah, J. : S.K.Shah, J. : S.K.Shah, J. Date Date Date : March 6, 2007. : March 6, 2007. : March 6, 2007. P.C.:- P.C.:- P.C.:- 1. 1. 1. Heard Heard Heard the Counsel on both sides. the Counsel on both sides. the Counsel on both sides. 2. 2. 2. By By By this motion, the Plaintiff is seeking interim this motion, the Plaintiff is seeking interim this motion, the Plaintiff is seeking interim relief relief relief restraining the defendat No. 1 to 3 and the restraining the defendat No. 1 to 3 and the restraining the defendat No. 1 to 3 and the Authorities Authorities Authorities of MHADA from implementing and taking any of MHADA from implementing and taking any of MHADA from implementing and taking any action action action pursuant to a letter dated 3.12.2004, issued to pursuant to a letter dated 3.12.2004, issued to pursuant to a letter dated 3.12.2004, issued to the the the Plaintiff, as also restraining them from allotting Plaintiff, as also restraining them from allotting Plaintiff, as also restraining them from allotting 1/2 1/2 1/2 of the bid to the defendant No. 4 and further of the bid to the defendant No. 4 and further of the bid to the defendant No. 4 and further restraining restraining restraining the defendant NO.1 to 3 from disturbing and the defendant NO.1 to 3 from disturbing and the defendant NO.1 to 3 from disturbing and disconnecting disconnecting disconnecting the cable lines laid by the Plaintiff on the cable lines laid by the Plaintiff on the cable lines laid by the Plaintiff on the the the site known as Ganesh Nagar, Charkop, Kandivali (W), site known as Ganesh Nagar, Charkop, Kandivali (W), site known as Ganesh Nagar, Charkop, Kandivali (W), and and and directing the defendant NO.1 to 3 to allot the directing the defendant NO.1 to 3 to allot the directing the defendant NO.1 to 3 to allot the whole whole whole work of providing cable services in the Colony of work of providing cable services in the Colony of work of providing cable services in the Colony of M.H. M.H. M.H. & A. D. Board, Ganesh Nagar Charkop, Kandivali & A. D. Board, Ganesh Nagar Charkop, Kandivali & A. D. Board, Ganesh Nagar Charkop, Kandivali (W) (W) (W) to Plaintiff. to Plaintiff. to Plaintiff. 3. 3. 3. By By By tender notice dated 24.6.2004, the Defendant tender notice dated 24.6.2004, the Defendant tender notice dated 24.6.2004, the Defendant Board Board Board invited tenders for the operation of cable in the invited tenders for the operation of cable in the invited tenders for the operation of cable in the locality locality locality known as Ganesh Nagar, Charkop, Kandivali (W). known as Ganesh Nagar, Charkop, Kandivali (W). known as Ganesh Nagar, Charkop, Kandivali (W). It It It is the case of the Plaintiff that the bid given by is the case of the Plaintiff that the bid given by is the case of the Plaintiff that the bid given by the the the Plaintiff was the highest than the defendant No.4 Plaintiff was the highest than the defendant No.4 Plaintiff was the highest than the defendant No.4 and and and the bid of the defendant No. 4 was lower than the the bid of the defendant No. 4 was lower than the the bid of the defendant No. 4 was lower than the Plaintiffs’ Plaintiffs’ Plaintiffs’ bid. MHADA conceded the defendant No.4 as bid. MHADA conceded the defendant No.4 as bid. MHADA conceded the defendant No.4 as existing existing existing operator and the defendant No.4 was therefore operator and the defendant No.4 was therefore operator and the defendant No.4 was therefore allowed allowed allowed to match the highest bid given by the Plaintiff to match the highest bid given by the Plaintiff to match the highest bid given by the Plaintiff and and and having done so, divided the tender bid equally having done so, divided the tender bid equally having done so, divided the tender bid equally between between between the Plaintiff and defendant No.4 and granted the Plaintiff and defendant No.4 and granted the Plaintiff and defendant No.4 and granted work work work order in favour of both the Plaintiff and order in favour of both the Plaintiff and order in favour of both the Plaintiff and defendant defendant defendant No.4. No.4. No.4. 4. 4. 4. The The The contention of the Plaintiff is that the contention of the Plaintiff is that the contention of the Plaintiff is that the defendant defendant defendant No.4 was not at all existing cable operator No.4 was not at all existing cable operator No.4 was not at all existing cable operator and and and therefore, the defendant No. 4 could not have been therefore, the defendant No. 4 could not have been therefore, the defendant No. 4 could not have been allowed allowed allowed to match the bid given by the Plaintiff and to match the bid given by the Plaintiff and to match the bid given by the Plaintiff and consequently, consequently, consequently, the defendant No. 1 to 3 could not have the defendant No. 1 to 3 could not have the defendant No. 1 to 3 could not have divided divided divided the bid between them and granted 1/2 of the the bid between them and granted 1/2 of the the bid between them and granted 1/2 of the same same same to defendant No.4. to defendant No.4. to defendant No.4. 5. 5. 5. In In In the earlier proceeding the Honourable Supreme the earlier proceeding the Honourable Supreme the earlier proceeding the Honourable Supreme Court Court Court had given the following direction in SLP No. had given the following direction in SLP No. had given the following direction in SLP No. 5076 5076 5076 to 5078 of 2002. The direction was as under : to 5078 of 2002. The direction was as under : to 5078 of 2002. The direction was as under : "In "In "In case the existing cable operator who is case the existing cable operator who is case the existing cable operator who is operating operating operating is ready to match highest bid, then he is ready to match highest bid, then he is ready to match highest bid, then he would would would be given preference above the highest be given preference above the highest be given preference above the highest bidder" bidder" bidder" 6. 6. 6. It It It is the contention raised on behalf of the is the contention raised on behalf of the is the contention raised on behalf of the Plaintiff Plaintiff Plaintiff that since the defendant No.4 was not the that since the defendant No.4 was not the that since the defendant No.4 was not the existing existing existing cable operator and even otherwise the bid of cable operator and even otherwise the bid of cable operator and even otherwise the bid of the the the defendant No.4 was not higher than the bid given by defendant No.4 was not higher than the bid given by defendant No.4 was not higher than the bid given by the the the Plaintiff, defendant No. 1 to 3 could not have Plaintiff, defendant No. 1 to 3 could not have Plaintiff, defendant No. 1 to 3 could not have divided divided divided bid and given half of the said work to the bid and given half of the said work to the bid and given half of the said work to the defendant defendant defendant No.4. No.4. No.4. 7. 7. 7. As As As against this it is submitted on behalf of the against this it is submitted on behalf of the against this it is submitted on behalf of the defendant defendant defendant No. 1 to 3 that under Order 7 Rule 11 D the No. 1 to 3 that under Order 7 Rule 11 D the No. 1 to 3 that under Order 7 Rule 11 D the Suit Suit Suit is barred for want of statutory notice under is barred for want of statutory notice under is barred for want of statutory notice under Section Section Section 173 of the CPC. It is also the contention of 173 of the CPC. It is also the contention of 173 of the CPC. It is also the contention of the the the defendant Board that in fact the defendant No.4 was defendant Board that in fact the defendant No.4 was defendant Board that in fact the defendant No.4 was the the the existing cable operator. Similar is the contention existing cable operator. Similar is the contention existing cable operator. Similar is the contention raised raised raised on behalf of the defendant NO. 4. on behalf of the defendant NO. 4. on behalf of the defendant NO. 4. 8. 8. 8. What What What is pointed out is that the defendant No. 4 is pointed out is that the defendant No. 4 is pointed out is that the defendant No. 4 was was was earlier required to make a deposit of Rs. 50,000/- earlier required to make a deposit of Rs. 50,000/- earlier required to make a deposit of Rs. 50,000/- and and and that was made by the defendant No. 4. This prima that was made by the defendant No. 4. This prima that was made by the defendant No. 4. This prima facie facie facie indicates that the defendant No. 4 was also the indicates that the defendant No. 4 was also the indicates that the defendant No. 4 was also the existing existing existing cable operator. In view of the facts cable operator. In view of the facts cable operator. In view of the facts indicated indicated indicated above and a specific resolution having been above and a specific resolution having been above and a specific resolution having been pointed pointed pointed out by the defendants, that there will be no out by the defendants, that there will be no out by the defendants, that there will be no bar bar bar to the defendant Nos. 1 to 3 to award the tender to the defendant Nos. 1 to 3 to award the tender to the defendant Nos. 1 to 3 to award the tender by by by equally dividing the same among two bidders. The equally dividing the same among two bidders. The equally dividing the same among two bidders. The relief relief relief which the Plaintiff is seeking is not tenable. which the Plaintiff is seeking is not tenable. which the Plaintiff is seeking is not tenable. Since Since Since the defendant No. 4 was also one of the cable the defendant No. 4 was also one of the cable the defendant No. 4 was also one of the cable operators operators operators as observed above, prima facie it was proper as observed above, prima facie it was proper as observed above, prima facie it was proper on on on the part of the defendant Nos. 1 to 3 to give a the part of the defendant Nos. 1 to 3 to give a the part of the defendant Nos. 1 to 3 to give a chance chance chance to defendant No.4 the then existing cable to defendant No.4 the then existing cable to defendant No.4 the then existing cable operator operator operator to match the bid given by the Plaintiff, the to match the bid given by the Plaintiff, the to match the bid given by the Plaintiff, the highest highest highest bidder. This being so and it being within the bidder. This being so and it being within the bidder. This being so and it being within the powers powers powers of defendant No.1 to 3 to equally divide the of defendant No.1 to 3 to equally divide the of defendant No.1 to 3 to equally divide the tender tender tender work between the two, prima facie I do not find work between the two, prima facie I do not find work between the two, prima facie I do not find that that that it is a fit case to grant relief in favour of the it is a fit case to grant relief in favour of the it is a fit case to grant relief in favour of the Plaintiff. Plaintiff. Plaintiff. 9. 9. 9. Consequently, Consequently, Consequently, the notice of motion stands the notice of motion stands the notice of motion stands dismissed. dismissed. dismissed. No Order as to costs. No Order as to costs. No Order as to costs. 10. 10. 10. The The The learned Counsel for the Plaintiff requests learned Counsel for the Plaintiff requests learned Counsel for the Plaintiff requests for for for staying the operation of this Order for a period of staying the operation of this Order for a period of staying the operation of this Order for a period of three three three weeks. The Counsel for defendant Nos. 1 to 3 weeks. The Counsel for defendant Nos. 1 to 3 weeks. The Counsel for defendant Nos. 1 to 3 objects objects objects for the same. However, since an ad interim for the same. However, since an ad interim for the same. However, since an ad interim relief relief relief was granted in favour of the Plaintiff, in terms was granted in favour of the Plaintiff, in terms was granted in favour of the Plaintiff, in terms of of of prayer clause (b), I am inclined to stay the prayer clause (b), I am inclined to stay the prayer clause (b), I am inclined to stay the operation operation operation of this Order for a period of three weeks. of this Order for a period of three weeks. of this Order for a period of three weeks. The The The Operation of the Order is stayed for three weeks Operation of the Order is stayed for three weeks Operation of the Order is stayed for three weeks from from from today. today. today. ..... ..... ..... [S.K.Shah, [S.K.Shah, [S.K.Shah, J.] J.] J.]