IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 28213 of 2011(B) --------------------------------------- PETITIONER: ------------------- A.P.ABDUL SALEEM,MURSHITHA MANZIL, AMBALAKOTH ROAD,P.O MEDICAL COLLEGE, CALICUT- 673 008. BY ADV. SRI.C.P.MOHAMMED NIAS. RESPONDENT: ---------------------- KERALA STATE DRUGS AND PHARMACUTICALS LTD., REPRESENTED BY ITS MANAGING DIRECTOR, KALAVOOR P.O, ALAPPUZHA -688 522. BY ADV. SRI.B.SAJEEV KUMAR,S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.28213/2011-B: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE A CLASS LICENCE ISSUED BY THE SUPERINTENDENT ENGINEER,PWD ,KOZHIKODE TO THE PETITIONER. EXHIBIT P2: TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA TOURISM DEVELOPMENT CORPORATION TO THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE TENDER NOTICE ISSUED BY THE RESPONDENT DATED 9/7/2011. EXHIBIT P4: TRUE COPY OF LETTER DATED 8/8/2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXHIBIT P5: TRUE COPY OF THE LETTER DATED 12/8/2011 ISSUED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P6: TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE PETITIONER DATED 20/8/2011. EXHIBIT P7: TRUE COPY OF THE LETTER DATED 25/8/2011 ISSUED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P8: TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE RESPONDENT ON 13/9/2011 EXHIBIT P9: TRUE COPY OF THE LETTER DATED 5/9/2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXHIBIT P10: TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE RESPONDENT DATED 21/9/2011. EXHIBIT P11: TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE RESPONDENT DATED 4/10/2011 EXHIBIT P12: TRUE COPY OF THE LETTER DATED 13/10/2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXHIBIT P13: TRUE COPY OF THE TENDER NOTICE PUBLISHED IN THE MATHRUBHOOMI DAILY DATED 19/10/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. ANTONY DOMINIC, J ....................................................... W.P.(C).28213/2011 .............................................. Dated this the 15th day of November, 2011 JUDGMENT Heard both sides. 2. The first respondent invited tenders for renovation/modification of civil works to the existing R & D to accommodate an “Independent Drug Testing Centre” confirming to National Accreditation Board for Testing & Calibration Laboratory (NABL) & Good Laboratory Practice (GLP) norms. Petitioner submitted his tender and was the lowest. He was issued Ext.P4 letter dated 8.8.2011 by which he was informed thus:- “The GMP certification of all the materials for the panel work, ceiling doors, glazings, built in risers, coving etc may be obtained from the suppliers from whom you intent to procure these materials must be forwarded to this office to finalize your tender, if you fail to furnish the certificates your tender is likely to be rejected. Electrical wiring has to be carried out as concealed trough the panels being a Quality control lab as per the NABL & GLP norms. The supplier of the panel should be informed of this and get his specification which may be W.P.(C).28213/11 2 forwarded to this office.” 3. Petitioner replied by Ext.P5 and was thereafter issued Ext.P6, which also stated thus:- “If you cannot produce the GMP certification or the address of the supplier from whom you intent to procure the materials within three days from the date of receipt of this letter, we will not be in a position to verify the credibility or the quality of the materials, whether it confirms to the GMP norms or not. In the light of the above facts the contents in your letter is totally unacceptable to us. However, your tender will be considered only after satisfying our requirements/conditions mentioned in our letter No.KSDP/1/11-12 dated 8.8.2011. If you fail to adhere to this, we will be constrained to pursue other options to carry out the work, which may result in cancellation of your tender and forfeiture of your EMD etc., without further notice. Also please note that we have the authority to do so.” 4. From Ext.P7, it is seen that the petitioner received Ext.P8 on 25.8.2011 and informed the respondent that he shall contact them within seven days. However, he did not respond within the seven days' period and therefore, the Company issued Ext.P9, forfeiting W.P.(C).28213/11 3 the EMD submitted by the petitioner. It is thereafter, that on 13.9.2011, petitioner submitted Ext.P8 with the details of some of the suppliers. There was no response to Ext.P8 and in the said circumstances, this writ petition has been filed, seeking to quash Ext.P9 and to accept the tender submitted by him. 5. From the above sequence of events, it can be seen that although the petitioner was given repeated opportunities requiring him to produce the certificates and other particulars, he did not submit the same within the time specified and also within the time which he asked for. In such circumstances, if the offer made by the respondent is recalled, such action of the Company cannot said to be illegal. 6. However, I find substance in the grievance of the petitioner that EMD could not have been forfeited, for the reason that production of certificates mentioned in Exts.P4 and P7 were not conditions specified in the tender notice. If that be so, even if it is assumed that the petitioner failed in producing the documents, W.P.(C).28213/11 4 that could not have resulted in the forfeiture of the EMD. Therefore, while I uphold Ext.P9, I direct the respondent to refund the EMD submitted by the petitioner, on the production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs /true copy/ P.A. To Judge