IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14691 of 2009 1. POLY GLASS FIBRE INDUSTRIES PRIVATE LTD. THROUGH ITS DIRECTOR RAHIM BAWA S/O MR. A.K. BAWA R/O 265, OKHLA INDUSTRIAL ESTATE, P.S.- OKHALA, PHASE-III, NEW DELHI - 110020 Versus 1. THE STATE OF BIHAR THROUGH ITS PRINCIPAL SECRETARY WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE ENGINEER IN CHIEF (NORTH) WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR, PURCHASE STORE & MATERIAL MANAGEMENT, WATER RESOURCES DEPARTMENT, BIHAR, PATNA ----------- For the Petitioner :- Mr. Y. V. Giri, Sr. Advocate & Dr. Anajani Prasad Singh. For the State :- Mr. Prasoon Sinha, G.A. III Mr. Prabhat Kumar, A.C. to G. A. III ------- 5 12/05/2010 Two orders passed by the respondents Water Resources Department, Govt. of Bihar, Patna are under challenge. First order dated 18.9.2009 is annexure-12 to the writ application by virtue of which the award of contract for supply of F.R.P. Fiber glass boats with Out Boad Motors (OBM) and other accessories as well as supply of 120 Inflatable Motor boats with Out Boad Motors and accessories stood rescinded. In addition to that the performance guarantee has been seized and the petitioner was also black listed. - 2 - The second impugned order is annexure-14 which is dated 16/10/2009. By virtue of this annexure a fresh tender in relation to the said supplies has been called for and the petitioner wants quashing of the re-tender notice as well. There are not many areas of dispute. So far as the basic facts are concerned, pursuant to tender notice no. 2 of 2009-10 dated 1.5.2009 Water Resources Department, Govt. of Bihar invited tender for supply of FRP Fiber Glass Motor Rescue Boats, total quantity being 56 and supply of Inflatable Motor boats total quantity being 224. The terms and conditions of such supplies are listed in the same annexure. Clause 37 has relevance because it deals with Schedule of supply and date of completion of tender. It states that the equipments are required to be delivered 50 per cent upto 30th June, 2009 and 100 per cent upto 15th July, 2009 in the concerned districts at the specified places. Tender was opened on 19.05.2009 but the supply orders were placed on the petitioner for both the supplies only on 22.06.2009. 45 days’ time thereafter was granted to the petitioner for effecting the supplies. Hardly supplies worth the name were made. It cannot be said so in entirety but - 3 - piecemeal supplies did not satisfy the requirements of the tender. On request of the petitioner time was extended till 31.08.2009. Even that did not beget the results. The petitioner was cautioned. He made yet another application for extending the time by 45 days stating many a reasons for non-supply but taking into consideration the exigencies of the supplies and the object of such requisition, the respondent authorities decided to issue the impugned order dated 18.9.2009 (annexure-12 to the writ application). Soon after rescinding the tender, re-tender has also been issued and the petitioner decided to file the present writ application challenging both the actions of the respondents. In so far as re-tendering is concerned, the matter can be safely allowed to rest because re-tender has been done, contract awarded and the same cannot be un-done now at this stage. The Court is, therefore, left with adjudication of first issue which is the decision contained in annexure-12, cancelling the contract and awarding punishment. From the various communications and explanations offered by the petitioner, the petitioner has expressed helplessness in meeting the deadlines on the ground that the - 4 - delay in placing the orders by the respondents further delayed procurement of the Out Boad Motors from other countries since these motors are imported and not manufactured in the country. All the stocks some how got sold by the supplier and the petitioner was left in the lurch by the original equipment manufacturer. That is with regard to non supply of Out Boad motors and even F.R.P. Fiber bodies boats. So far Inflatable boats are concerned, similar stories are available, in addition that non-supply should be treated as a case of force majore because Swine flue broke out in Pune which led to shortage of staff and, therefore, even the production of the boats got severely affected. There were genuine reasons, according to the petitioner, and it was in this background that extended time was prayed for. Submission of the learned Senior Counsel representing the petitioner now is that with the subsequent developments and taking a prudent view of the entire issue, the respondents be directed to atleast make payment for the completed supplies made and the multiplicity of punishment imposed upon the petitioner as per clause 8 of the terms and conditions of the notice inviting tender contained in - 5 - Annexure-1 ought to be set aside. According to the learned Senior Counsel a plain reading of clause 8 would show that there are five kinds of punishment envisaged thereunder listed as clause 8.1 to 8.5 and if all these punishments come to be imposed upon the petitioner simultaneously, then it will be harsh and excessive if not in breach of the spirit of clause 8. A reading of Annexure-12 gives the entire background to the present dispute. It also states the reasons why the respondents were forced to take a decision un- palatable to the petitioner. Whatever explanations have been offered by the petitioner for non-performance of the contract within the time frame do not justify the breach of the contract in question. Time was the essence of the contract and if that was so, failure to perform within the time agreed in terms of the contract amounts to breach and if a breach is committed, consequences thereof have to follow. In the above stated legal and factual position, the question is whether the respondents authorities have acted in an arbitrary manner which requires interference by the Writ Court while exercising power under Article 226 of the - 6 - Constitution of India. Law is well settled on the issue that normally in matters of concluded contract writ Courts have very limited role or power to exercise. The terms and conditions of the agreement govern the relationship between the parties but of late Courts have taken a view that even in the matter of a concluded contract element of arbitrariness can be a subject matter of scrutiny by a writ Court. Keeping in view the above principle and analysing the facts, the Court has absolutely no hesitation in recording that the decision taken by the respondents in terms of annexure-12 was as a result of failure of the petitioner to perform the contract within a time frame and the failure has consequences. In view of what has been stated above, this Court is not enthusiased or impressed by the submission of the learned Senior Counsel that annexure-12 requires interference. Since the supplies made by the petitioner were adhoc supplies, boats were not complete and were not usable because in some cases Out Boad Motors were missing and in some cases other facilities were not available. This is no - 7 - supply in the eye of law. In fact some of the supplies have been thrust by the petitioner on the respondents after the impugned order came to be passed on 18.9.2009. If that be so, then it will be un-fair against the respondents to pay for the supplies even when they were not in consonance with the requirements and the notice inviting tender. The Court, however, is willing to take into consideration that certain supplies came to be made or was tried to be made and the petitioner had blocked his money in the said supply. Therefore, direction for non-payment for the supply is punishment enough to him. Additional punishment like forfeiture of guarantee money etc. would be harsh and putting additional financial burden on the petitioner. Though the situation in which the petitioner has reached is his own creation but there are situations when situation spins out of the hands of a supplier. The reasons, however, given in the communication do not seem very convincing specially when a claim is made at the Bar that the petitioner is the biggest supplier of this kind in the country. This writ application is dismissed with a direction that Water Resources Department, Government of Bihar may - 8 - re-consider the question of forfeiture of guarantee money and the Bank guarantee furnished by the petitioner in view of the above stated circumstance. So far as participation of the petitioner in future tender and his black listing is concerned, the Court refuses to decide these issues at this point of time. For that the petitioner may first move the departmental authorities concerned and exhaust remedy provided under the rule and thereafter if the petitioner still has a cause of action to come to this Court, the doors of the Court are open for him. This writ application stands dismissed. AMIN (Ajay Kumar Tripathi, J.)