S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 1. IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) S.B. Civil Misc. Appeal No. 696/2008 The State of Raj., vs M/s Ramchandra through Addl. Chief Kumawat & Co. Engineer, & ors. & another. (2) S.B. Civil Misc. Appeal No. 611/2008 Krishan Vallab vs. M/s Ramchandra Kumawat & Co. And others. under Order 43 Rule 1(r), CPC against the order dated 3.5.2008 passed by the Addl. District & Sessions Judge No.3, Udipuar in Misc. Case No.14/2008. Date of Judgment: September 29th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. Rameshwar Dave, Dy.G.A. for the State in Appeal Nos.696/08b & 611/08. Mr. Ravi Bhansali for the appellant in Appeal No.611/08 and for respondent no. 2 in Appeal No.696/08 Mr. Rajesh Joshi for the respondent no.1 in both the appeals. S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 2. BY THE COURT: These two appeals have been preferred to challenge the order dated 3.5.2008 passed by the court of Addl. District Judge No.3, Udaipur in Civil Misc. Case NO.14/08 by which the trial court granted injunction order against giving work to the appellant Krishna Kumar. The Works in question are in relation to work out of package for which notices inviting tenders NO. 28 /PMGSY/2007- 2008 was issued on 4.2.2007. According to the plaintiff, he was competitive bidder for the work in question and as the officers of the respondent had grudge against the plaintiff-respondent, therefore, with malafide intention and to blame respondent-plaintiff, the tender of the appellant-defendant no.4 was accepted even when the appellant- defendant's tender was liable for rejection because of the reason that the tender documents were incomplete as the requisite price for the five years maintenance of the work was not mentioned by the defendant-appellant in the tender documents and some of the pages of tender document were not signed by him and further the offer was non-responsive. S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 3. The trial court after considering Conditions No.25.1, 25.2, 25.3 as well as clause 8.3, held that the tender document of the appellant-defendant no.4 was incomplete, as he did not give any rates for the five years maintenance and did not sign that part of the document and, therefore, the tender document was non- responsive and since it has not been signed, therefore, it was liable to be rejected as per clause 25.1, 25.2 and 25.3 of the conditions of the tender. The trial court rejected the contention of the State as well as the rival contractor that if any amount is not mentioned in the document for any work, then that work cost is required to be treated included in the rates mentioned by the contractor for whole of the work. The learned trial court also was of the view that contention of the defendant-appellant that main work in the contract was construction of the roads and was not its maintenance, also cannot be accepted. The plaintiff in addition to relief of prohibitory injunction against the respondent, sought mandatory injunction in its favour for grant of work order in his favour. However, the trial court was of the view that no case is made out by the plaintiff-respondent no.1 for issuing work order in his favour by interim order. In view of the above reasons, the trial S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 4. court granted the only prohibitory injunction in favour of respondent-plaintiff and refused mandatory injunction to the plaintiff. The defendant-contractor has preferred Appeal no.611/08, whereas the State has preferred Appeal no. 696/08 to challenge the said order dated 3.5.2008. According to the learned counsel for the appellant- contractor, the appellant contractor submitted his bid knowing it well that as per Condition No.39.3, the contractor can submit his price for whole of the contract work by giving bids so as to cover maintenance cost for roads for five years after completion of construction of roads in the main work cost and which the appellant-defendant contractor did in present transaction. The Condition No.39.3 clearly provides that items of the works for which no rate or price has been entered in the Bills of Quantities, will not be paid for by the Employer and shall be deemed covered by other rates and prices in the contract. To make this position clear, the appellant-contractor submitted before the authorities in writing also. As per clause 32.1, the performance security taken from the contractor, which says that successful bidder/contractor S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 5. shall provide to the contractor total performance security of five percent of the contact price, for a period of five years and the time of completion of construction work plus additional security for unbalanced bids in accordance with clause 27.3 and 27.4 of ITB and clause 46 Part-I General condition of contract. It is also submitted by the learned counsel for the appellants that the principal work is of construction of roads and maintenance for five years is ancillary work. The trial court failed to appreciate the distinction between two works. It is submitted that two works may have been the part of the same contract, but at the same time, the nature of the work cannot be ignored. The major work under the contract is construction of roads. The learned counsel for the appellant-State vehemently submitted that the appellant himself got the contract for other works from the appellant-State under the same/similar advertisement inviting tenders by submitting tender form with some pages without signatures of the plaintiff-respondent and yet has challenged the act of the respondent when the bid was not came in favour of the respondent-plaintiff. It is also submitted that absolutely false and baseless allegations of malafide have been S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 6. levelled by the plaintiff against the officers of the appellant-State and that too without impleading any of the officers as party in the suit and in the petition for grant of injunction. It is also submitted that in a matter of mere breach of contract, adequate relief can be obtained by filing a suit for damages and the plaintiff cannot get the contract in his favour in present suit. Therefore, no injunction could have been granted by the trial court. It is also submitted that in a matter of public importance affecting the public at large, the courts are expected to slow in granting injunction so as to put a complete halt over the work for public benefit. The learned counsel for the appellant relied upon several judgments of the Hon'ble Supreme Court in support of his contention. The learned counsel for the respondents vehemently submitted that this fact is not in dispute that some of the pages of the tender document have not been signed by the appellant- contractor and signing of the document and each page of the document only can make the tender document a valid document of tender. In case the documents are not signed or any of the requirement is unfilled, then the tender document cannot be S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 7. considered and required to be rejected. Clause 8.3 clearly provides that the bidder is expected to examine carefully all instructions and conditions of contract and in case bid is not substantially responsive to the requirements of the bid documents then on this ground alone, the document is required to be rejected. Clause 18.2. further provides that all pages of bid document shall be signed by the persons or person signing the bid. Clause 25.1 also specifically provides that during detailed evaluation of technical bids, it will be looked into that the bid has been properly signed and is responsive to the requirement of bidding document. What is substantially responsive, has been explained under Condition NO.25.2 and it prohibits the rectification of bid in any manner. Clause 25.3 is specific provision for rejection of financial bid, if it is not substantially responsive and also provides that a bid which is not substantially responsive, may not be subsequently be made responsive by correction or withdrawn of the nonconforming deviation or reservation. The learned counsel for the respondent-plaintiff relief upon the judgment of the Delhi High Court delivered in the case of P.K. Delicacies Pvt. Ltd. vs. Union of India (2005(2) CTLJ 134 (Delhi) S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 8. wherein the annexed document was not filled up and signed then the Division Bench of the Delhi High Court held that it is an important part of tender bid and was required to be filled up and signed by the person giving the bid. The Division Bench of the Delhi High Court held that the failure to fill up the said document, cannot be a technical irregularity of little or no significance and, thereafter, it has been held that as a general rule, tender conditions has to be strictly adhered to and the authorities concerned have power to reject and not to consider the tender which is incomplete and lacking any particulars. The learned counsel for the respondent-plaintiff further relied upon the judgment of the Gauhati High Court delivered in the case of R.N. Ghosh vs. State of Tripura and others ( 2000(3) Arb.LR 64 (Gauhati), wherein there was condition that the bidder shall put his full signature on every page of rate schedule. In that case the bidder put his initials only in place of full signatures and that was found non-compliance of the requirement by the Gauhati High Court. It is also submitted that in some cases where the rates were required to be given in figure as well as in words and have not been given so, has been considered as non-compliance of the S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 9. conditions of the tender. The learned counsel for the respondents also relied upon judgment of the Hon'ble Apex Court delivered in the case of W.B. State Electricity Board vs. Patel Engineering Co. Ltd. and others ( (2001) 2 SCC 451), wherein Hon'ble the Apex Court held that the principle of awarding contract to lowest tenderer applies when all things are equal and there is no obligation to award contract to lowest bidder and in this case, according to the learned counsel for the respondent, the respondent is prepared to do the work on the rates given by the defendant-appellant-contractor and, therefore, there cannot arise any question of loss to the State or public. The learned counsel for the respondent-plaintiff vehemently submitted that no plea was taken by the State or the appellant- contractor that the plaintiff-respondent-contractor himself submitted tender document with some blank pages or without signing of the pages. This pleas has been taken for the first time in argument before this Court, which cannot be entertained. I considered the submissions of the learned counsel for the parties and perused the facts of the case. There cannot be any doubt that in the matter of award of S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 10. the contract for public work by the Government agencies, the Government agencies cannot act arbitrarily. The Government agencies are required to see the compliance of all the conditions which can certainly prevent the favoritism and avoid harm because of the bias as well as to prevent corruption in the matter of awarding work contact of huge amount to the contractor. It is also true that mere offer of low price cannot be ground for grant of award of contract and the contractor is required to full fill all other eligibility criteria. Which condition is essential condition of the contract, depends upon the facts of each case. In a case where short signatures were put in place of full signatures of the bidder, the court held that it is non-compliance of the requirement for giving offer but that cannot be applied as a rule in all contracts. In the case of R.N. Ghosh (supra), there was specific requirement of signing the document with full signatures and in the facts of the case, the court held that the initial or short signatures of the bidder was violation of the condition. As stated above, this proposition cannot be accepted as rule of general law in each and every case. Here in this case, the alleged violations are that the defendant-appellant-contractor did not mention the rates for S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 11. maintaining the roads for five years after completion of roads. If it is looked into without noticing the complete contract and the conditions applicable for the contract, then it is a serious matter. If the bid could have been rejected only on this ground, then there was no reason for providing Condition No.39.3, which specifically provides that in case no rate or price has been entered in the bills of quantities for the works, no amount will be paid by the employer to the contractor for said unquoted price and it shall be deemed that the rates and prices are already covered by other rates and prices given in the contract. The appellant-contractor submitted in writing to the defendants, the government agencies that his bid includes the maintenance price for the roads, is not any addition, alteration or variation in the offer of defendant- appellant so as to hit by clause 25.3. Clause 25.3 only provides that if a bid is not substantially responsive, it cannot be made responsive, subsequently by (a) correction or (b) withdrawal of the nonconforming deviation or (c) reservation. The correction, withdrawal, deviation and reservation cannot be equated with making the position clear only by pointing out towards the real facts and meaning of the offer. The documents, therefore, was S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 12. inclusive of the cost or rates for maintenance of the roads for five years. If there can be unfilled column for cost of work and the cost of that work stands included in the price given for other items in the tender document and the contractor is not claiming any benefit out of that part of the contract and, therefore, has not signed the said page of the contract, it cannot materially affect the document so as to say that the tender document was not “substantially responsive” or was incomplete. In view of the above reason, the trial court failed to appreciate the facts of the case properly and committed error of law in interpreting the clauses of the conditions of the tender document and the relevant conditions. In the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. & ors. ( (1006) 11 SCC 548), the Hon'ble Court considered issue of essential conditions and substantial compliance with essential condition in the matter of government contracts and also made it clear what is aims and object of the tender conditions. Hon'ble the Apex Court held that the tender conditions may have to be construed differently having regard to the facts situation obtaining in each case and no hard S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 13. and fast rule can be laid down therefor. Hon'ble the Apex Court held that when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderer on their own risk and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with by the court. In view of the above reason, there appears to be no prima facie case in favour of the plaintiff-respondent. If we look into the question of irreparable injury, then in government contract of the nature which is involved in this case, there is commercial interest of the contract but, at the same time, the beneficiaries of the work is the public. There may be very many reasons for challenge to giving of the contract to one of the parties and one of the important aspect may also be that the corruption which is required to be curbed by the courts, when the facts are brought to the notice of the court. Here in this case, the plaintiff even after alleging the malafide and favoritism, could not substantiate his plea and, therefore, it appears that the plaintiff is seeking stay against the public work only on the basis of mere S.B.Civil Misc. Appeal No.696/2008 The State of Raj. through Addl. Chief Engineer vs. M/s Ramchandra Kumawat & Co.and anr. and another connected appeal 14. technical objections which may cause greater hardship to the public at large and loss to the State exchequer also. In contrast, the plaintiff is not likely to suffer such irreparable injury which can be compensated by money. In view of the above reason, there appears to be no balance of convenience in favour of the plaintiff. Hence the appeals of the appellants are allowed. The injunction order granted by the trial court dated 3.5.2008 is set aside. The injunction application of the plaintiff is dismissed. No order as to costs. (PAKASH TATIA),J. mlt