IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 25925 of 2008(J) -------------------------------------- PETITIONER(S): ---------------------- 1. J & S CONSTRUCTION 39/5449 B, 2ND FLOOR, THOUNDAYIL, SOUTH BRIDGE AVENUE ROAD, PANAMPILLY NAGAR, COCHIN-36 REPRESENTED BY PARTNERS: 2. P.B.SHERIFF,AGED 42 YEARS, S/O. I.BASHEER,RESIDING AT FLAT NO.B-3 JAWAHAR JEWEL APARTMENT, JAWAHAR NAGAR, KADAVANTHARA, KOCHI-20 3. V.J.JOSEPH, AGED 48 YEARS S/O. JOSEPH,RESIDING AT 33/2346 B, VILANGUPARA, GEETHANJALI ROAD,VYTTILA.P.O.,KOCHI-19. BY ADV. MR.K.RAMACHANDRAN MR.S.SREEDEV RESPONDENT(S): ------------------------- 1. THE MANAGING DIRECTOR, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD, TRANS TOWERS, VAZHUTHACAUD,THIRUVANANTHAPURAM-14 2. THE CHIEF ENGINEER,(B.O.T.PROJECTS) KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD, TRANS TOWERS, VAZHUTHACAUD,THIRUVANANTHAPURAM-14 * ADDL. R3 IMPLEADED ADDL. R3: M/S.K.V.JOSEPH & SONS, ENGINEERING CONSTRUCTIONS, EDAPPALLY, KOCHI-24, REPRESENTED BY ITS MANAGING PARTNER K.J.KURIAKOSE. * IS IMPLEADED AS PER ORDER DATED 26/09/2008 IN IA.12121/2008. MR.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 & 2 ADV. MR.B.UNNIKRISHNA KAIMAL FOR R1 & 2 MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR ADDL.R3. MR.K.P.CHANDRASEKHAR FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 25925/2008-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION DATED 20/08/2008 SENT BY 2ND RESPONDENT TO THE PETITIONER INFORMING THAT PETITIONER IS FOUND TECHNICALLY QUALIFIED. EXT.P2: COPY OF THE BANK GUARANTY DATED 18/08/2008 FOR PROVIDING SUFFICIENT FUND TO THE PETITIONER FOR EXECUTING THE WORK MENTIONED IN EXT.P1. EXT.P3: COPY OF THE LIST OF SUPERVISORY STAFF OF PETITIONER. EXT.P4: COPY OF THE CERTIFICATE DATED 30/11/2006 ISSUED BY EXECUTIVE ENGINEER, PWD BUILDINGS DIVISIONS, KOZHIKODE SHOWING THAT P.B.SHERIFF HAS COMPLETED SATISFACTORILY A WORK VALUING Rs.12,85,52,211/- EXT.P5: COPY OF THE NEWS PAPER REPORT APPEARED IN MATHRUBHOOMI DAILY DATED 21/01/2009. EXT.P6: COPY OF THE NEWS PAPER REPORT APPEARED IN MATHRUBHOOMI DAILY DATED 21/01/2009. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE TENDER DETAILS PUBLISHED IN WEBSITE OF THE 1ST RESPONDENT. EXT.R1(b): COPY OF THE TENDER NOTICE AND GUIDANCE PUBLISHED IN THE SEBSITE OF THE 1ST RSPONDENT. EXT.R1(c): COPY OF THE GENERAL CONDITIONS FOR TECHNICAL BID PUBLISHED IN THE WEBSTITE OF THE 1ST RESPONDENT. EXT.R3(a): COPY OF THE LETTER SUBMITTED BY THE RESPONDENT DATED 20/09/2008. //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.25925 of 2008 -------------------------------------- Dated this the 4th day of February, 2009 JUDGMENT The respondents invited tenders for the construction of Shopping Complex at Kohikode (Terminal Bus Station), Civil Construction, Water supply, Sanitation and other allied works. Petitioner submitted his bid and was issued Exhibit P1. Subject to the clarifications sought for, he was technically qualified. It is stated that Exhibits P2 and P3 were furnished answering clarifications sought for. In spite of it, tender was not awarded to him. It was therefore,that this writ petition was filed praying for a direction to the respondents to allot the tendered work to the petitioner. 2. Counter affidavit has been filed by the first respondent. From the averments in the statement, it would appear that the petitioner firm was constituted and brought into existence only on 15/07/2008 and that the petitioner firm did not have experience of having executed any work before 31/03/2008. It is also stated that the work previously executed by the parters of the firm cannot be treated as a work executed W.P.(C) No.25925/2008 2 by the firm and on final assessment of the Technical Bid of the petitioner, it was decided that the petitioner did not qualify in the Technical Bid. 3. Reply affidavit has been filed, where the petitioner contends that the experience of the parters is liable to be reckoned as experience of the firm. In support of this contention, learned counsel for the petitioner relied on the apex court judgment in New Horizons Limited and Another Vs. Union of India and others [1995(1) SCC 478] and the judgment of Andhra Pradesh High Court in M/s. Avula Constructions Pvt. Ltd. Vs. Sr. Divn. Electrical Engineer, T.D [AIR 1999A.P 318]. Petitioner also produced Exhibit P4 certificate dated 30/11/2006 issued by the Executive Engineer,PWD Buildings Division, Kozhikode, contending that he satisfied with the experience prescribed in clause 7(b) of the Exhibit R1(b) tender notice. 4. I heard Counsel for the petitioner, Senior Counsel for the first respondent and Counsel for the 3rd respondent. Although, I am inclined to agree with the learned counsel for the petitioner that the experience of a partner of the firm is liable to be reckoned as the experience of the firm as held in the aforesaid W.P.(C) No.25925/2008 3 judgments, still question arise whether Exhibit P4 experience certificate produced by the petitioner satisfies the requirements of Clause 7(b) of Exhibit R1(b). Clause 7(b) provides that the tenderer should produce following documents. “List of successfully completed similar works during the last 5 years ending last day of the month previous to the one in which tenders are invited along with proof, as per the following: i) Three similar completed works costing not less than the amount equal to 15% of ht estimated P.A.C. or ii)Two similar completed works costing not less than the amount equal to 20% of the estimated P.A.C. or iii)One similar completed work costing not less than the amount equal to 35% of the estimated P.A.C.” 5. Therefore, the certificate produced must show the list of successfully completed similar works during the last five years ending on the last date of the month previous to the one in which tenders are invited. Exhibit P4 shows that the petitioner had W.P.(C) No.25925/2008 4 executed a single work valuing Rs.12,85,52,211/-. The agreement in relation to the aforesaid work was executed in 1998-1999. If the period of 5 years is reckoned from the date of execution of the agreement, it is not within the 5 year period specified in the tender notice. Even otherwise, there is nothing in the certificate to indicate that the work was completed within the time specified in Clause 7(b) of Exhibit R1(a). 6. Therefore, even if it is accepted that the experience of the managing partner ought to have been reckoned as the experience of the firm, in my view, Exhibit P4 certificate produced along with the tender notice does not satisfy the requirements of clause 7(b) and therefore, even if such a certificate was considered, still petitioner would not have succeeded. In such a case, I do not think that the petitioner has made out a case for interfering with the contract, which is already awarded to the 3rd respondent. Writ petition fails and hence, it is dismissed. ANTONY DOMINIC, JUDGE scm