IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 24TH JANUARY 2007 / 4TH MAGHA 1928 WP(C).No. 34053 OF 2006(D) -------------------------- PETITIONER: ------------ M/S.CROWN MARITIME CO.(INDIA) LTD., B-320, 32ND CONCORDE, THAKUR VILLAGE SCHEME, KANDIVALI (EAST) MUMBAI-400 101, REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, S.SUJATHAN, AGED 52 YEARS, S/O.SUKUMARAN. BY ADV. SRI.S.VENKITESWARAN(SR) SRI.V.J.MATHEW SRI.P.P.RAJESH SRI.BIJISH B.TOM RESPONDENTS: ------------- 1. THE CHAIRMAN, COCHIN PORT TRUST, W/ISLAND, COCHIN-9. 2. BOARD OF TRUSTEES, COCHIN PORT TRUST, W/ISLAND, COCHIN-9, REP. BY ITS CHAIRMAN. 3. CHIEF ENGINEER, COCHIN PORT TRUST, COCHIN-9. 4. M/S.JAISU SHIPPING CO.PVT. LTD., NEAR INDIRA GANDHI BRIDGE, SOUTH END OF W/ISLAND, COCHIN-3. 5. DHARTHI DREDGING, HYDERABAD, C/O.COCHIN POST TRUST, W/ISLAND, COCHIN-9. :2: WP(C) 34053/2006 (R5 DELETED FROM PARTY ARRAY AS PER ORDER ON I.A. NO. 274/2007 DATED 8.1.2007) BY ADV. SRI.P.R.RAMACHANDRA MENON SRI.B.SAJEEV KUMAR SRI.RAJI T.BHASKAR SMT.UMARANI.M.N. SRI.M.K.THANKAPPAN SRI.ANTONY DOMINIC SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2007, THE COURT ON 24.1.2007, DELIVERED THE FOLLOWING: WP(C) 34053/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 THE TRUE COPY OF THE TENDER DOCUMENT NO. NHT - 1358/2006-C WITH THE RELEVANT PAGES. EXT.P2 THE TRUE COPY OF THE CHARTER PARTY AGREEMENT DATED 24.9.2006 ENTERED INTO BETWEEN THE PETITIONER AND THE OVERSEAS DREDGING RENTAL B.V., NETHERLANDS. EXT.P3 THE TRUE COPY OF TE LETTER DATED 15.12.2006 ISSUED BY OVERSEAS DREDGING RENTAL B.V. TO THE 3RD RESPONDENT. EXT.P4 THE TRUE COPY OF THE LETTER DATED 15.12.2006 ISSUED BY THE VESSEL OWNERS/BAGGERMAATSCHAPPIJ BOSKALIS BV TO THE 3RD RESPONDENT. EXT.P5 THE TRUE COPY OF THE LETTER DATED 14.12.2006 ISSUED BY THE OVERSEAS DREDGING RENTAL B.V (ODR BV) TO THE 3RD RESPONDENT. EXT.P6 THE TRUE COPY OF THE APPROVAL ISSUED BY THE DIRECTORATE GENERAL OF SHIPPING DATED 1.11.2006. EXT.P7 THE TRUE COPY OF THE LETTER DATED 28.9.2006 ISSUED BY THE DENA BANK TO OVERSEAS DREDGING RENTAL B.V, WHO SIGNED EXHIBIT P2/CHARTER PARTY. EXT.P8 THE TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 28.4.2006 EXECUTED BETWEEN THE VESSEL OWNER M/S. BOSKALIS BAGGERMAATSCHAPPIJ BOSKALIS BV, NETHERLANDS AND THE PETITIONER. EXT.P8 THE TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 28.4.2006 EXECUTED BETWEEN THE VESSEL OWNER M/S. BOSKALIS BAGGERMAATSCHAPPIJ BOSKALIS BV, NETHERLANDS AND THE PETITIONER. EXT.P9 THE TRUE COPY OF THE LETTER DATED 15.12.2006 ISSUED BY THE PETITIONER TO THE DY. CHAIRMAN, COCHIN PORT TRUST. EXT.P10 THE TRUE COPY OF THE LAWYER NOTICE DATED 19.12.2006 ISSUED ON BEHALF OF THE PETITIONER TO THE RESPONDENTS 1 TO 3. :2: WP(C) 34053/06 EXT.P11 THE TRUE COPY OF THE LETTER NO. NH/T-1358/2006-C DATED 9.12.2006 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P12 THE TRUE COPY OF THE REPLY LETTER DATED 11.12.2006 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P13 THE TRUE COPY OF THE EXHIBIT P1 TENDER NOTIFICATION DATED 9.11.2006 CALLED FOR BY THE 3RD RESPODNENT. EXT.P14 THE TRUE COPY OF THE LETTER DATED 28.12.2006 ISSUED BY DIRECTORATE GENERAL OF SHIPPING TO THE PETITIONER. EXT.P15 THE TRUE COPY OF THE LETTER DATED 4.12.2006 ISSUED BY OWNER OF THE VESSEL M/S. BAGGERMAATSCHAPPIJ BOSKALIS BV. EXT. P16 THE TRUE COPY OF THE GUIDELINES ISSUED BY DIRECTORATE GENERAL OF SHIPPING FOR THE GRANT OF LICENSE TO FOREIGN FLAG VESSELS. EXT.P17 THE TRUE COPY OF THE LETTER DATED 11.12.2006 ISSUED BY STATE BANK OF INDIA TO THE 3RD RESPONDENT. EXT.P18 THE TRUE COPY OF THE LETTER NO. OBMU/SHIP/06/433 ISSUED BY STATE BANK OF INDIA TO THE 3RD RESPONDENT. EXT.P19 THE TRUE COPY OF THE CERTIFICATE DATED 11.11.2003 ISSUED BY THE RESPODNENT. EXT.P20 THE TRUE COPY OF THE CERTIFICATE DATED 16.12.2006 ISSUED BY THE RESPONDENTS. EXT.P21 THE TRUE COPY OF THE CERTIFICATE DATED 28.6.1999 ISSUED BY THE 3RD RESPONDENT. EXT.P22 THE TRUE COPY OF THE LETTER DATED 11.12.2006 ISSUED BY THE PETITIOENR TO THE 1ST RESPONDENT. EXT.P23 THE TRUE COPY OF THE LETTER DATED 28.12.2006 ISSUED BY MERCANTILE MARINE DEPARTMENT TO THE PETITIONER. :3: WP(C) 34053/2006 EXT.P24 THE TRUE COPY OF THE LETTER NO. NMDP/T-1344/2006-C ISSUED BY THE 3RD RESP0ONDENT TO THE PETITIONER ALONG WITH ANNEXURE. EXT.P25 THE TRUE COPY OF THE RELEVANT PAGES OF CLAUSE 1.3 OF TENDER NO. NG/T-1358/2006-C DATED 13.11.2006. EXT.P26 THE TRUE COPY OF THE RELEVANT PAGES OF CLAUSE 4.9.6 OF TENDER NO. NHY/T-1358/2006-C. EXT.P27 THE TRUE COPY OF THE PLAINT IN O.S. NO. 37/3006 OF THE SUB COURT, KOCHI. EXT.P28 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT HEREIN IN O.S. 37/2006 OF THE SUB COURT, KOCHI. EXT.P29 THE TRUE COPY OF THE RELEVANT PAGES OF CLAUSE 5,3,2 OF TENDER NO. NH/T-1358/2006-C. RESPONDENTS EXHIBITS: EXT.R3(a) TRUE COPY OF THE DETAILS OF CUTTER SUCTION DREDGER, PROPOSED FOR DEPLOYMENT FURNISHED BY THE PETITIONER, TENDER NO. N4/T-1358/2006-C. EXT.R3(b) TRUE COPY OF THE LETTER DATED 11.12.2006 AND THE CHARTER PARTY AGREEMENT DATED 24.9.2006 (BEING ONE OF THE ENCLOSURE THERETO). EXT.R3(c) TRUE COPY OF THE AGENDA OF THE MEETING OF THE BOARD OF TRUSTEES DATED 18.12.2006 ALONG WITH ITS ENCLOSURES. EXT.R3(d) TRUE COPY OF THE LETTER DATED 15.12.2006, FILE NO. CMC/CPT/NH/09, WITHOUT THE ENCLOSURES THERETO, ISSUED BY THE PETITIONER. EXT.R3(e) TRUE COPY OF THE CHARTER PARTY AGREEMENT DATED 15.12.2006, WHICH WAS SUBMITTED ALONG WITH EXT.R3(d). EXT.R3(f) TRUE COPY OF THE LETTER DATED 27.11.2006 SUBMITTED BY THE PETITIONER, FILE NO. CMC/CPT-NH/06. :4: WP(C) 34053/06 EXT.R3(g) TRUE COPY OF THE REPORT OF THE TECHNICAL EVALUATION COMMITTEE MEETING DATED 5.12.2006. EXT.R3(h) TRUE COPY OF THE PROCEEDINGS OF THE TENDER COMMITTEE DATED 9.12.2006. EXT.R3(i) TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 28.4.2006 SIGNED BY THE PETITIONER. EXT.R3(j) TRUE COPY OF THE DREDGING CAPACITY PRODUCED BY THE 4TH RESPONDENTS IN RESPECT OF KAMAL XXVIII EXT.R3(k) TRUE COPY OF THE DREDGING CAPACITY PRODUCED BY THE 4TH RESPONDENT IN RESPECT OF KAMAL IX. EXT.R3(l) TRUE COPY OF THE MESSAGE RECEIVED BY THE COCHIN PORT TRUST FROM VIZAG PORT TRUST. // TRUE COPY // P.S. TO JUDGE. knc/- P.R. RAMAN, J. W.P.(C) NO. 34053 OF 2006 ====================== DATED THIS, THE 24TH DAY OF JANUARY, 2007 J U D G M E N T Petitioner is a dredging contractor having its registered office at Mumbai. The first respondent is the Chairman of the Cochin Port Trust. The second respondent is a Government Body appointed under the Major Port Trust Act, 1963, the 3rd respondent is the Chief Engineer, Cochin Port Trust. 2. By Ext.P1, the Cochin Port Trust invited tenders from dredging contractors for filling by dredging including side protection by reclamation wall/gravel bund for the embankment formation along the shore side of Moolampilly and Mulavukad for N.F connectivity to Vallarpadam, for which petitioner as well as the 4th respondent submitted their tenders. The tender includes a technical bid and a price bid. M/s. Dharthi Dredging, Hyderabad originally arrayed as the 5th respondent in the writ petition had also submitted a tender, who was, however, disqualified in the pre- qualification bid. He did not, however, challenge the rejection of his bid and subsequently he was removed from the party array as per order dated 12.1.2007 on I.A. No. 274/2007. Petitioner’s technical bid was also rejected WP(C) 34053/2006 :2: by respondents 1 to 3. Since his pre-qualification bid was rejected there did not arise any occasion to open his price bid. According to the petitioner, his pre qualification bid was arbitrarily rejected by respondents 1 to 3 and according to him, he has complied with all the conditions under Ext.P1 technical bid and is confident that he would be the lowest bidder on the price bid also. According to him, the action of respondents 1 to 3 in rejecting his bid on the sole ground that he did not own any Cutter Suction Dredger as provided for in Clause 4.5.4 of Ext.P1 is not justified on any ground, since he clearly satisfied the requirements of Clause 4.5.4. of Ext.P1 which says that the tenderer shall possess by ownership/confirmed chartering agreement, Cutter Suction Dredger of required capacity and he possess the same vide a confirmed charter party agreement, Ext.P2 produced in this case. It is his further contention that clause 4.5.4 of Ext.P1 does not say that tenderer should possess a Cutter Suction Dredger of the required capacity by ownership and it is enough if the tenderer possess the same by a charter party agreement. Even though he possesses such a Dredger of the required capacity by Ext.P2 charter party agreement, respondents 1 to 3 illegally rejected his tender on the ground that he did not possess a Cutter Suction Dredger. It is also contended that respondents 1 to WP(C) 34053/2006 :3: 3 cannot insist that the tenderer should own Cutter Suction Dredger when clause 4.5.4 of Ext.P1 only says that the tenderer should possess the Cutter Suction Dredger under a confirmed chartering agreement. Further, Ext.P4 also show that the owner of the Cutter Suction Dredger, taken on charter by the petitioner had confirmed Ext.P2 charter party agreement. He also satisfied the requirements of clause 4.2.2 (xi) of Ext.P1 by submitting all the documentary evidence regarding ownership of the dredger by charter and also commitment from the vessel owner to make available the vessel for the work as per Exts.P3 and P9. Because of the illegal action of respondents 1 to 3, petitioner contends that, he is put to heavy hardship and hence he seeks for interference of this Court under Article 226 of the Constitution of India, by issuing a writ of mandamus or other appropriate writ directing respondents 1 to 3 not to open and award Ext.P1 tender to the 4th respondent and a further direction to them to accept the tender submitted by him for consideration of his price bid along with the 4th respondent. He also seeks for a declaration that the disqualification of his tender by respondents 1 to 3 is null and void. 3. After filing the writ petition, petitioner filed an additional affidavit dated 20th December, 2006, producing Exts. P11 to P13 documents. WP(C) 34053/2006 :4: Respondents 1 to 3 filed a counter affidavit dated 21.12.2006 along with Ext. R3(a) to R3(e) documents. Subsequently, petitioner filed a reply affidavit under date 2nd January, 2007. On the same day, respondents 1 to 3 filed an additional counter affidavit along with Ext.R3(g) – a letter dated 27.11.2006 submitted by the petitioner addressing the third respondent. Again, on 8th January, 2007 they filed a second additional counter affidavit along with which they produced Exts. R3(g) to R3(l). A counter affidavit was filed by respondents 1 to 3 as directed by this Court, at the stage of admission. After admitting the matter, they filed the additional affidavits as stated above. 4. The sum and substance of the averments made in the counter affidavits may be summarized and stated as follows: According to Respondents 1 to 3, prior to issuance of Ext.P1 though they have invited tenders on two occasions, both were cancelled. The first tender was cancelled because of the delay in getting environmental clearance from the Ministry of Environment and Forests, Government of India and the second one had to be cancelled as the quoted price was much higher than the probable amount of contract. The work in question is a part of the project for establishment of international Container Transshipment Terminal WP(C) 34053/2006 :5: (ICTT) and the Port is required to complete the tendered work and hand over the first stretch of embankment to the National Highway Authority of India (NHAI) by July, 2007 because they are contractually bound to their construction contractors, the schedule fixed cannot be further delayed. Because of the cancellation of the previous two tenders, the respondents have lost more than three working months and any further delay may result in loosing further period before the onset of the next monsoon resulting in further overrun in cost and time. Ext.P1 tender was published in leading national dailies besides hosted in the government tender Website and Port Website and the last date for submission of tender was 4th December, 2006. Placing reliance on clause 4.5.4.1 of Ext.P1 tender, it is contended that it was an essential condition of the tender that tenderers shall “possess” by ownership/confirmed chartering agreement, Dredger as specified in the notice. Petitioner, in response to Ext.P1 submitted their tender and along with the technical bid Ext.P8 memorandum of agreement (MOA) between the petitioner and the owner of a Dredger was also enclosed. In the details of the dredger proposed to be deployed for deployment in the work, furnished by the petitioner, along with the technical bid, he had given an undertaking that they have purchased the Cutter Suction Dredger “Gemini” WP(C) 34053/2006 :6: whereas the document submitted is Ext.P8, a memorandum of agreement to enter into a sale purchase deal and hence the statement in the undertaking referred to above was factually incorrect. Ext.R3(a) is the copy of the details of Cutter Suction Dredger proposed for deployment furnished by the petitioner along with the technical bid. Though the MOA was dated 28th April, 2006, the expected time of delivery was mentioned as “June, 2005”. The Technical Evaluation Committee of the Deputy Financial Adviser, Executive Engineer (NM-III) and Assistant Executive Engineer (NM-IB) have evaluated the tender including that of the petitioner and it was thereafter that Ext.P11 letter was issued seeking clarification from the petitioner. Among others, petitioner was also required to furnish documents for the ownership of “Gemini” as per the tender document and to produce details/documents so as to reach the same in the Office of the respondents not later than 11 a.m. on 13.12.2006. In response to Ext.P11, petitioner, by his letter Ext.R3(b) dated 11.12.2006, produced documents including a Charter Party agreement between himself and M/s. Overseas Dredging Rental BV. Netherlands being the Despondent Owner of the Dredger “Gemini”. On receipt of Ext. E.R3(b) and similar clarifications furnished by other tenderers, the matter was again evaluated by the Technical WP(C) 34053/2006 :7: Evaluation Committee on 13.12.2006 and the report of the said Committee was placed before the Tender Committee consisting of the third respondent, Financial Adviser and Chief Accounts Officer, Secretary and the Deputy Conservator of Port Trust in their meeting held on 17.12.2006. In their meeting held on 17.12.2006, the tender committee recommended that the tender submitted by the petitioner did not meet the qualification criteria. The proceedings of the tender committee, along with the report of the Technical Evaluation Committee and compilation statement were placed before the Board of Trustees in their meeting held on 18.12.2006. Ext.R3 (c) is the agenda of the said meeting. The Board of Trustees granted their approval as sought for in the agenda and in pursuance thereof, the price bid submitted by the pre-qualified tenderer has been opened and is being processed. As per the tender conditions, petitioner and the other tenderer were informed about their disqualification and their price bids were returned. Subsequently, after the expiry of the time mentioned in Ext.P11, petitioner , by Ext. R3(d) letter dated 15.12.2006, submitted another set of documents, Ext.R3(e), which included a charter party agreement. Ext.R3 (d) was received after the expiry of the time and hence there arose no occasion to consider the same. According to them, Ext.P9 has not been WP(C) 34053/2006 :8: received by the Deputy Chairman as on the date of filing the affidavit. With reference to the averments in para 6 of the affidavit filed by the petitioner that he has got funds sanctioned from Dena Bank and that M/s. Boskalis have agreed to sell the said Dredger, it is stated that it is only an agreement for sale and not actual possession of the dredger by the petitioner as is required as per the tender condition. Even the charter party agreement dated 24.9.2006 is not valid because of the blank columns in the critical area of the document. Thus, petitioner has not satisfied the mandatory tender condition that the tenderer should possess a Cutter Suction Dredger of the required specification by ownership/confirmed chartering agreement and admittedly when the tender was submitted, he was not in possession of such a dredger. Therefore, he was not eligible to be pre-qualified. 5. Referring to Exts.P3 to P5, it is contended that those documents are dated 15.12.2006 and 14.12.2006 respectively and they cannot be taken cognizance of. They justified the decision to disqualify the petitioner. 6. In the reply affidavit filed by the petitioner dated 2.1.2007, petitioner avers that the case of the respondents appears to be that Ext.P2 charter party agreement is incomplete as a reason for disqualification. According to them, the required columns have been duly filled up and the WP(C) 34053/2006 :9: column providing for time of delivery can be filled up only after awarding the tender and most of the other columns are ‘Not Applicable’. Further, according to them, validity of Ext.P2 charter party is clearly proved by Ext.P6 charter hire permission given to Ext.P2 by the Director General of Shipping and the same was also forwarded by the petitioner to the third respondent as per Ext.P12 letter. The said document is conclusive evidence of validity of Ext.P2 charter party. It is further averred that the statement in the counter affidavit that the charter party agreement Ext.P2 and the certificate issued by the Director General of Shipping are contradictory to each other is borne out of ignorance of shipping terms. According to them, in the certificate issued by the Director General of Shipping dated 1.11.2006, the name of the head owner/original owner of the dredger ‘Gemini’ is stated whereas in the Charter Party Agreement dated 24.9.2006, the name of the despondent owner is stated. despondent owner means a person who is not the head owner of the vessel but a person who has chartered the vessel from the head owner and is sub-chartering the vessel to another person. Further, the despondent owner has all rights for chartering the vessel. Respondents 1 to 3 clearly know that the original/head owner of the vessel is M/s. Baggermaatschappij Boskalis BV, Netherlands as is borne WP(C) 34053/2006 :10: out from the statement in Ext.R3© and Ext.P8 memorandum of agreement. According to him, thus there is no contradiction in respect of the name of the owner of the vessel and in the documents submitted by the petitioner. Petitioner further avers that the validity of Ext.P2 charter party has been further confirmed by Ext.P14 letter issued by the Director General of Shipping. He also placed reliance on Ext.P15 letter said to have been issued by the owner of the vessel certifying that they had sold dredger “Gemini” to the petitioner. The guidelines issued by the Director General of Shipping for grant of license to foreign flag vessels is produced as Ext.P16. The State Bank of India issued a letter Ext.P17 to evidence the fact that they have already sanctioned credit facilities worth about 18.25 crores to the petitioner. Placing reliance on Ext. P 23, a letter issued to the petitioner by the mercantile Marine Department, petitioner submits that the above letter would show that the dredger “Gemini” is owned by him. According to the petitioner, the 4th respondent to whom some other work was allotted, has not even completed the same against the tender condition and knowing fully the background and lack of infrastructure of the 4th respondent, respondents 1 to 3 are making hasty attempts to award him the tender in question, for which there is no justification. WP(C) 34053/2006 :11: 7. In the additional counter affidavit filed by respondents 1 to 3, apart from denying the averments in the reply, they would state with reference of the scope of the work, that the 4th respondent had a dredger available of the required capacity for deployment, meeting the tender specifications and did not seek any relaxation. According to them, Ext.R3 (e) is yet another charter party agreement and as in Ext.P2 it was blank in several critical areas. It is averred that even according to the petitioner, he did not own or possess a dredger which is a mandatory condition of Ext.P1 tender. The statement that petitioner had purchased the dredger is actually an erroneous statement. In the letter dated 27.11.2006, petitioner had mentioned that they had purchased dredger “Gemini” and had taken delivery of the same. Ext.R3(f) is the said letter. Therefore, it is submitted that the mandatory conditions are not complied with by the petitioner. Exts. P3 to P6 cannot be taken cognizance as they were submitted beyond the time specified in Ext.P11. 8. In the second additional counter affidavit filed by respondents 1 to 3 after reproducing Clause 4.2.2 (xi) it is specifically averred that even the clause deals with documents to be furnished by the tenderer in order to establish the qualification criteria dealt with under Clause 4.5.4.1. It is WP(C) 34053/2006 :12: their contention that the documents which are furnished by the tenderer in terms of Clause 4.2.2. (xi) should be such as to establish the possession by ownership/confirmed chartering agreement of dredger(s) as stated in Clause 4.5.4.1. They have also extracted the relevant portion of the report wherein the documents submitted by the petitioner are dealt with by the Technical Evaluation Committee at its meeting held on 5.12.2006. The proceedings of the tender committee is Ext.R3(h). It is their contention that at no stage the Port Trust has given up the qualifications criteria laid down in Clause 4.5.4.1 as was attempted to be submitted on behalf of the petitioner. Ext. R3(i) is produced to show that the memorandum of agreement produced as Ext.P8 does not tally with the alleged copy of the same Memorandum of Agreement produced by the petitioner along with another tender which was floated by the Port Trust for a deposit work on behalf of Kochi Refinery Limited. The genuineness of the various documents furnished by the petitioner, therefore, is to be considered in the light of the above aspects. 9. The 4th respondent has also filed a counter affidavit. The summary of the averments contained therein is to the effect that the disqualification of the petitioner as per the proceedings of respondents 1 to 3 is not because of not owning the dredger but for not possessing the same WP(C) 34053/2006 :13: as contemplated under the relevant clause. The averments of the petitioner and the documents produced according to them would show that petitioner was not in possession of the dredger and that no documentary evidence as to the ‘legally binding commitment’ from the ‘Owner’ of the dredger was submitted by the petitioner neither along with the tender nor within the extended time given till 13.12.2006. According to respondents 1 to3 Ext.P8 is nothing but an agreement for sale. The defects pointed out in the technical bid were specifically pointed out by them vide Ext. P11 and in spite of the fact that time was given till 13.12.2006 for curing the same, petitioner could not make use of such opportunity for the obvious reason that he was not in a position to satisfy the requirements. Petitioner, according to them, is not having any consistent case. According to them, petitioner submitted the tender along with Ext.R3(f) letter dated 27.11.2006, stating that he had already purchased the Dredger ‘Gemini” and has taken delivery of the same. But Ext.P8 would show that it is only an agreement for sale. Subsequently, petitioner produced Ext.P2 Charter Agreement dated 25.9.2006, executed between himself and the despondent owner which was followed by Ext.P4 letter dated 15.12.2006 issued by the original owner, confirming the authority of the despondent owner in WP(C) 34053/2006 :14: executing Ext.P2 agreement. But in the reply affidavit filed by the petitioner, he has stated that the original owner has issued Ext.P15 letter dated 4.12.2006 to the effect that he had already sold the Dredger ‘Gemini” to the petitioner. If it was true, there was absolutely no need or occasion for having executed Ext.P4 dated 15.12.2006 by the very same owner suppressing the alleged sale. They also denied the averments made in para 3 of the additional affidavit filed by the petitioner. It is further contended, with reference to Ext.P6 sanction issued by the Director General of Shipping, that permission was given for the work in ‘Hajira’, Port on Gujarat coast, making it clear that it will be valid only for