1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4251 OF 2007 IN SUIT NO.3092 OF 2007 WITH CHAMBER SUMMONS NO.1852 OF 2007 Santosh Keshav Parulekar ..Plaintiff. Vs. Brihanmumbai Municipal Corporation and others ..Defendants. ..... Mr. Dhananjay Halai i/b M/s. M.P. Vashi & Associates for the Plaintiff. Mr. R.Y. Sirsikar with Mr. H.C. Pimple or Defendants 1 and 2. Mr. Girish Godbole with Mr. S.S. Kanetkar for Defendant No.3. Mr. N.K. Singh for Defendant Nos.4 to 6. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 8th January, 2008. P.C. : 1. The present order will govern the Notice of Motion taken out by the Plaintiff for an injunction restraining the Municipal Corporation from giving a work order to the Third Defendant on the basis of tenders received for the supply of fire wood. The Municipal Corporation had invited tenders for the period 1st September, 2007 to 31st August, 2009 for the supply of dry 2 firewood at Bhoiwada Cemetery situated in F/South ward. The Plaintiff's case is that his father who was a supplier of firewood to the Municipal Corporation cemeteries for over 35 years expired on 24th September, 2007. In pursuance of the tender notice sealed tenders had to be filed by 26th September, 2007 on which date the tenders were to be opened. The case of the Plaintiff in paragraph 5 of the Plaint is that his father filled in the tender which was opened on 26th September, 2007 by the Corporation. Upon the death of his father the Plaintiff states that he was engaged in supervising the last rites and the Plaintiff claims to have learnt that the bid submitted by the Third Defendant was the lowest. In paragraph 5 of the Plaint there is an averment that the Plaintiff was ready and willing to supply firewood for the period commencing from 1st September, 2007 at the current rate of Rs.235/- per quintal which is less than the lowest rate of Rs.250/- per quintal that was accepted by the Municipal Corporation. The Plaintiff thereupon avers thus : “He, however, filled in the quotation at the rate of Rs.280/- per quintal.” In sum and substance therefore the case of the Plaintiff is that he is 3 ready and willing to supply firewood at the rate of Rs.235/- per quintal which is lower than the L-1 rate of Rs.250/- per quintal. 2. An affidavit in reply has been filed by the Municipal Corporation in which it has been stated that in pursuance of the tender six bids were received. The bid of the Plaintiff was at the rate of Rs.280/-per quintal whereas the rate of the Third Defendant was Rs.250/- per quintal. Consequently, the Municipal Corporation had recommended that the work should be allotted to the lowest bidder. On 2nd November, 2007 when the application for ad interim relief came up for hearing, the Learned Single Judge noted that the averment contained in paragraph 5 of the Plaint conveys the impression that the Plaintiff himself had filled in a quotation offering the rate of Rs.280/- per quintal. The Plaintiff moved a Chamber Summons for amending the averments contained in paragraph 5 of the Plaint on the ground that what was stated therein was a typographical mistake committed by the typist. The Learned Single Judge observed in the order dated 2nd November, 2007 that while it was true that a litigant should not suffer on account of a mistake 4 of the advocate, the submission of the Defendants was that the explanation of the Plaintiff was purely an after thought, particularly since no affidavit of the concerned typist or stenographer had been filed. The hearing of the Notice of Motion was adjourned by the Learned Single Judge granting liberty to the Plaintiff to file a further affidavit of the concerned stenographer / typist to explain the circumstances,if any, in which the alleged mistake had occurred. Thereupon an affidavit has been filed of a steno-cum-typist in the office of the Plaintiff's advocate. The affidavit makes interesting reading. The steno-typist has stated that on 16th October, 2007 she was not available on duty and a stenographer was called from some ' typing shop' for taking the dictation of the Plaint. The aforesaid stenographer is stated to have partly transcribed the dictation, but that he remained absent on the next date. The deponent of the affidavit states that thereupon in view of the urgency of the matter she typed out the balance that had remained to be typed from the shorthand dictation that was taken by the earlier stenographer and a mistake had occurred in doing so. 5 3. Now insofar as the Chamber Summons is concerned, it is evident that the effect of the Chamber Summons would be to withdraw an admission contained in paragraph 5 of the Plaint. The specific averment in paragraph 5 is that the tender form was in fact filled in by the father of the Plaintiff. The Plaintiff avers that tenders were opened on 26th September, 2007 at which stage the Plaintiff was busy with the last rites of his father who had expired on 24th September, 2007. The case of the Plaintiff that he was ready to supply firewood at the current rate of Rs.235/- per quintal, but that he, however, had filled in the quotation at the rate of Rs.280/- per quintal. In paragraph 5 of the Plaint, the allegation it must be noted is not that the quotation was filled in by the Third Defendant. The amendment which is proposed by the Chamber Summons is to the effect that the Plaintiff had filled in the tender with the help of the Third Defendant and it was the Third Defendant who had filled in the rate of Rs.280/- per quintal. The Plaintiff claims that he had never instructed the Third Defendant to fill in the aforesaid rate. In my view, the Chamber Summons cannot be allowed for the reason that the effect thereof would be to withdraw an admission which is 6 made in paragraph 5 of the Plaint. Counsel appearing for the Plaintiff draws the attention of the Court to the averment contained in the synopsis which according to the the counsel is consistent with the plea which is sought to be brought on the record by means of the Chamber Summons. On the other hand, it has been urged on behalf of the Third Defendant that it is the Plaint and not the synopsis which is duly verified. Be that as it may, the affidavit which has been filed of the stenographer on 19th November, 2007, after the order of the Court dated 2nd November, 2007 giving liberty to do so is completely vague. The name of the stenographer who was originally called upon to take the dictation in shorthand, the name of the typing shop from where the earlier stenographer was hired are both conspicuously absent. No affidavit has been forthcoming of the stenographer who had taken the original dictation for it is his record which would reveal what was the nature of the statement that was originally dictated. In these circumstances, the Plaintiff cannot be permitted to resile from the statement made in paragraph 5 of the Plaint. 7 4. Be that as it may, the explanation which was sought to be offered by the Plaintiff would not advance the case of the Plaintiff in any event. If the Plaintiff chose to rely upon the Third Defendant for filling the tender, then it is only the Plaintiff who is to blame. A public body such as the Municipal Corporation must treat the record of the bids submitted to it in the course of a public tender as correct and the nature of the bid is what is borne out in the record submitted to the Corporation. A bidder cannot be allowed to resile from his bid on the hypothesis that he had entrusted the actual filling up of the bid to another and that the rate which was filled up by the person who was so entrusted was higher than what the bidder intended to bid. If such a plea were to be accepted the entire process of inviting bids by a public body would collapse and there would be no certainty in the bidding process. The Municipal Corporation as a public body is duty bound to treat the sealed bids that are received by the last date as containing the correct record of each bid that has been submitted and it is not open to any bidder to thereafter complain that he had intended to submit a lower bid, but the person who had actually drafted the bid 8 document had put in some other figure. What a bidder intended to do is in the realm of his own subjective evaluation. The state of mind of the bidder cannot be reflective of the content of the bid document. 5. The Municipal Corporation has followed due process of law by inviting public bids and by accepting the lowest bid of the Third Defendant. During the course of the hearing of these proceedings, counsel appearing for the Third Defendant has submitted on the instructions of the proprietor of the Third Defendant who is present in the Court that the Third Defendant has denied all the allegations of the Plaintiff but, in order to ensure that firewood is available in the cemetery of the Municipal Corporation in the F/South ward at the lowest possible rate, the Third Defendant would be willing to match even the bid of Rs.235/- which the Plaintiff claims that he intended to submit. The learned counsel stated that this concession has been made only in the interest of fairness so that the relatives who accompany dead bodies for cremation should not be made to pay any higher amount. This 9 statement made on behalf of the Third Defendant is accepted and it has been consequently stated on behalf of the Municipal Corporation that the Corporation would award the tender to the Third Defendant at the aforesaid rate of Rs.235/- per quintal. This would subserve the public interest. 6. For all these reasons, I am of the view that there is no merit in the Motion. Both the Motion and the Chamber Summons shall, in the circumstances, stand dismissed. Stay refused.