1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7930 OF 2008 Iwota Infotech Pvt.Ltd. .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.H.S.Venegaonkar for petitioner Mr.Sudhir Prabhu for respondent No.2 Mr.D.N.Patil, A.G.P. For State CORAM : S.C.DHARMADHIKARI, J. DATE : 15th July 2009. P.C.: 1] Rule. Respondents waive service. By consent of parties, rule is made returnable forthwith. Heard parties. 2] The petitioner is the original defendant No.3 whereas the State of 2 Maharashtra and the respondent No.3 to this petition are the original defendants. The second respondent is the original plaintiff and he has filed Regular Civil Suit No.14 of 2008 against the petitioner and others. The suit is filed for declaration and injunction. It appears that on 1st March 2008 the State of Maharashtra invited tenders for preparing electoral voters’ identity cards for Legislative Assembly Constituency falling within Konkan region of the State of Maharashtra. Tender notice was published in the local newspaper on 1st March 2008. The last date for submission of tenders/ bids was stipulated as 3rd/12th March 2008. The tenders were invited based upon two envelope system. In response to this tender notice, petitioner, second respondent and respondent No.3 so also two others submitted their bids. Upon evaluation of the bids, it is contended by the petitioner that bid of petitioner being lowest and competitive, it came to be accepted and a contract was entered into between parties. 3] Thereafter on 30th May 2008, a notice was issued by the original plaintiff and second respondent to the State Government whereafter he has filed the instant suit. 3 4] In terms of the final relief, an application for interim injunction was made which was dismissed by the trial court after hearing parties. Aggrieved by the order of the trial court, Misc.Civil Appeal was preferred by the unsuccessful plaitiff/ appellant being Misc. Civil Appeal No.60 of 2008. That appeal having been allowed by the impugned order original defendant No.2/ second respondent to this appeal has filed instant petition. 5] I have heard learned Counsel for parties and perused with their assistance the impugned order, so also some of the annexures to the petition. The case of the plaintiff appellant as set out by the lower appellate court is that he submitted his bids/ quotations but the same came to be rejected. However, one of the important condition was that the bidder must produce a Certificate from Income Tax and Sales Tax clearly indicating that he had paid aforesaid taxes up to March 2007. Thus, this was not mere a formality but a mandatory condition/ requirement which had to be complied with or else the bids were incompetent and the person submitting the same ineligible for being considered for awarding the contract. It is alleged that by ignoring this condition, the contract came to 4 be awarded. Thus, there is wrongful rejection of the bid and, therefore, the contract awarded stands vitiated. 6] The State of Maharashtra in response to the application for interim injunction so also before the lower appellate court, pointed out that second respondent i.e. Petitioner before me had submitted a certificate issued by the Secretary, Dist.Setu Committee in respect of deduction of Income Tax and Sales Tax from the amount payable to respondent No.2, although, it might not have produced the Income and Sales Tax clearance certificates from the competent authority. That apart, the bid being competitive and lowest came to be accepted. There was transparency in the procedure adopted. Further, the contract is awarded of the work and the work has already commenced. 7] In my view, the stage at which the lower appellate court has made the impugned prima facie observations was improper. The suit is yet to be tried. Whether the guidelines as now relied upon can be said to be a mandate or are mere guidelines and assuming that they are mandatory and the conditions have to be complied with by all bidders, yet, whether 5 they are capable of substantial compliance or mandate strict compliance are matters, which must be decided at the trial. More so, when the original plaintiff allowed the entire process to be completed and, thereafter, issued a notice on 30th May 2008, before filing the suit. Thus, these are not matters where an injunction could have been issued by the lower appellate court. The net result of all this is that the contract work which had already commenced had to be suspended and the process must begin all over. These are matters in which the submission of the State of Maharashtra has also the successful bidder / contractor that the damages constitute adequate compensation and relief, prima facie merit serious consideration. These are public contracts and the works are for public at large. By their very nature, if electoral voters’ identity cards are not ready by the stipulated period, it causes inconvenience to all concerned. In these circumstances, the judicious exercise of discretion by the trial court in refusing interim injunction should not have been interfered with. The lower appellate court fell in apparent error in so interfering and, therefore, its order must be set aside. The lower appellate court failed to consider the basic requirement of prima facie case, balance of convenience and irreparable loss so also in this peculiar case, public interest. For these 6 reasons, the order under challenge cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute by directing that the order of the trial court stands restored. However, the trial court to dispose of the suit uninfluenced by any observations made in the impugned order so also by this Court and shall decide it on its own merits and in accordance with law expeditiously. No costs. (S.C.DHARMADHIKARI, J)