:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3227 OF 2009 WRIT PETITION NO.3227 OF 2009 WRIT PETITION NO.3227 OF 2009 WITH WITH WITH WRIT PETITION NO.3230 OF 2009 WRIT PETITION NO.3230 OF 2009 WRIT PETITION NO.3230 OF 2009 Jay Enn India Pvt Limited, .. Petitioners Vs. State Bank of India, Agency Banking and Reconciliation National Banking Group.. .. Respondent. Mr.Pradip Sancheti i/b M/s Sanjay Udeshi & Co, for the petitioners. Ms.Rajani Iyer, Sr.Advocate a/w Ms L.Munim, Vivek Sawant i/b Mr Kusumakar Kaushik, for the respondent. CORAM : S.B.MHASE & CORAM : S.B.MHASE & CORAM : S.B.MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE : 31.03.2009. DATE : 31.03.2009. DATE : 31.03.2009. P.C.: (Per S.B.Mhase,J.) P.C.: (Per S.B.Mhase,J.) P.C.: (Per S.B.Mhase,J.) 1. Heard learned counsel for the parties. 2. Since in both these petitions the ground of challenge is one and the same and parties are also same, both the petitions are heard together and are being disposed of together by this common order. 3. The respondent-Bank had floated a tender for supply of Desk Top Note Sorting Machines with minimum 3+1 pockets/structure and over 15000 notes per hour rated capacity. The number of machines required were 102. The tender, as usual, was invited in two parts; :2: :2: :2: namely, Technical Bid and Financial Bid. The technical bid of the petitioners has been rejected and, therefore, they are before this Court. 4. The petitioners-company is an agent of M/s Kisan Electronics Co., Ltd, (for short, "KISAN"), a Korean company, which manufactures Desk Top Note Sorting Machines. The tenders were invited for supply, installation, commissioning and maintenance of the machines mentioned in the tender at various currency chest/non currency chest branches located across the country from reputed firms/companies which have supplied at least 300 Desk Top Note Sorting Machines to various Banks/RBI in India since 1.4.2005 till 31.12.2008 and maintenance and after sales service net work spread across 14 Circles of State Bank of India all over India. 5. The petitioners were appointed by KISAN as an agent some time in 2005. Along with the petitioners, there were two other agents in India appointed by the said KISAN. The machines in India were sold through three agents and those machines were installed and maintained by respective agents during the period of their agency. It appears that in April 2008, the said KISAN appointed the petitioners as a sole :3: :3: :3: selling agent in India by terminating the agency agreement with other agents and, therefore, since April, 2008 the business of KISAN is being carried out in India through the petitioners and the petitioners are looking after the maintenance work of all machines installed in India so far. Therefore, in order to show that the petitioners satisfy conditions of supply of 300 machines installation and maintenance for a period of three years, i.e. from 1.4.2005 till 31.12.2008, the petitioners have supplied information which is at Exhibit-J to the petition showing that all those machines have been supplied by the petitioners during this period. Exhibit "H" is also similar chart. Exhibits "J" and "H", so far as the supply of the machines to the particular Banks or financial institutions are concerned, are one and the same. Exhibit "H" which show endorsements after entry nos.7,62,29, show that few machines have been sold by the petitioners - Jay Enn India Pvt Ltd. Machines sold by other agents are also included in the list so as to make out a magic figure of 300 machines to qualify them in the technical bid. We find that to satisfy the technical bid the petitioners have manipulated the charts at Exhibits "J" and "H". The endorsements at 2-3 places stating that "above machines are supplied by Jay Enn :4: :4: :4: India Pvt Ltd", in the Chart at Exhibit "H" is not seen in the Chart at Exhibit "J". Both the lists are same and they show the names of financial institutions to three agents during this period supplied the machines. Therefore, on bare perusal of this, we are satisfied that the petitioners have not supplied 300 machines during the stipulated period mentioned in the tender. 6. It is further clear that since other agents were in the field, at least till April, 2008, the machines supplied by them were looked after by the respective suppliers and not by the petitioners. Only we can infer that after April,2008 the petitioners may have given service to all the machines in India as reflected in the list. However, that itself will not qualify the petitioners for technical bid because the technical bid contemplates supply of 300 machines, installation of them and maintenance of the machines by the petitioners, which qualification is not satisfied and, therefore, an attempt to calculate performance of the other agents as a performance by the petitioners is not desired in the process. At the most, it was possible for the company to participate in the tender process instead of the petitioners participating, who was not :5: :5: :5: qualified. However, the fact is on record that the company itself had not participated, though under the tender document it was permissible for the company. 7. Therefore, after perusal of the documents on record and after hearing the parties, we are doubly sure that the respondent has rightly rejected the technical bid of the petitioners. 8. The next ground, which has been addressed by the learned counsel for the petitioners, is that the condition requiring supply of 300 machines during the period of three years, installation and maintenance of the same for the said period, is unreasonable, harsh and does not permit all the competitors in the field to participate in the tender process and, therefore, the condition may be struck down and the petitioners may be allowed to participate in the financial bid. The first and the foremost ground on which we desire to reject this argument and the contention is that the petitioners having participated in the tender process and having made every effort to justify the technical bid by negotiation and correspondence with the respondent when they realised that they cannot satisfy the required conditions, they have come forward with a :6: :6: :6: belated plea of the condition being an unreasonable. If the petitioners were sincere enough to challenge this condition, they should have challenged it before participation in the tender process. That would have shown their bonafide. But having lost the battle possibly the petitioners could have got, it is an after thought attempt to grab the financial bid by a backdoor entry of striking down of the condition and, therefore, we do not find that it is bonafide plea raised by the petitioners. . Secondly, it appears that there are three manufacturing companies in the world, which can provide the above referred machines. Out of those, including the petitioners, there were four participants in the technical bid and the technical bid of the petitioners had been rejected and three are in the field who can participate in the financial bid. It further appears that since the petitioners are representing KISAN and their technical bid is rejected, KISAN is not in a position to participate in the financial bid through the petitioners. However, this anomalous position has arisen, not as a result of violation of the guidelines applicable in this respect, but it is as a result of the non-participation of KISAN in the process and/or the petitioners itself being not qualified for a :7: :7: :7: technical bid. If the argument of the learned counsel is to be accepted, then it contemplates prior study of all agents, their supply during the last three years by the respondent and thereafter to make a condition which will permit all the suppliers to participate in the process. Such study prior to issuance of tender is not contemplated in the guidelines. The guidelines contemplate that an opportunity should be made available to the maximum suppliers in the field and from that angle, the condition should be prescribed. The condition of supply of 300 machines during a period of three years and installation and maintenance of them, is not an unreasonable condition taking into consideration that there are limited manufacturers of machines, the world being market for them and India being one of the largest country having financial infrastructures of the Banking and Non-banking financial institutions and, therefore, the requirement of 300 machines in three years period, as contemplated in the condition, is in no way an unreasonable condition. We find that there is no unreasonableness in the condition. The so-called unreasonableness which is being pointed out to this Court cannot be attributed to the prescription of the condition but it is attributable to the conduct of KISAN and the sole selling agent, :8: :8: :8: namely, the petitioners. The respondent-Bank cannot be blamed for that purpose. The reasonableness or unreasonableness of any condition of tender is to be considered on universal application of said condition and not with reference to the conditions or circumstances under which the petitioner is placed. Therefore, we do not find any substance in the submission made by the learned counsel for the petitioners that the condition is unreasonable. Except this and but for this, no other point was advanced before this Court. Since we are not satisfied on both the points, we reject both the petitions in limine. . The notice and the Rule on interim relief issued in Writ Petition No.3230 of 2009 is hereby discharged. (D.B.BHOSALE.J.) (S.B.MHASE, J.) (D.B.BHOSALE.J.) (S.B.MHASE, J.) (D.B.BHOSALE.J.) (S.B.MHASE, J.)