M/S.ELCOME TECHNOLOGIES PVT. LTD v. STATE OF KERALA

MS. ENCARDIO RITE ELECTRONICS PVT LTDA-7INDUSTRIAL ESTATE,TALKATORA ROAD, LUCKNOW – 226 011, UTTAR PRADESH WP(C) NO. 9925 OF 2017 2 7** AIMIL LTD, NAIMEX HOUSE, 88/1 OUTER RING ROAD,NAGAVARA, BANGALORE 560 045. **ADDRESS OF R7 M/SO. AIMIL LIMITED, NAIMEX HOUSE, INDUSTRIAL ESTATE, MATHURA ROAD, NEW DELHI – 110 044. REPRESENTED BY ITS MANAGING DIRECTOR ADDRESS OF R7 IS CORRECTED AS PER ORDER DATED 25.10.2017 IN I.A.NO.16776/2017. BY ADVS. SRI.RAJU JOSEPH (SR.) SRI.S.SHYAM KUMAR SRI.K.K.KARAPPANKUTTY SRI.RAJU JOSEPH SR. SRI.GEORGEKUTTY MATHEW, SC, KSEB SRI.ARUNKUMAR A., SC, KSEB SRI.JOSEPH ANTONY C SRI. JOSEPH ANTONY C (FOR R2 TO R5) SMT.RESHMI THOMAS, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9925 OF 2017 3 JUDGMENT The petitioner has approached this Court challenging the rejection of its bid for award of work under Ext.P2 e-tender. It is the case of the petitioner that the petitioner has been excluded from the bid illegally and without just reason. After the writ petition was admitted, the work was tendered in favour of the 6th respondent.

2. The learned counsel appearing for the 6th respondent as well as the learned Counsel appearing for the Kerala State Electricity Board (respondents 2 to 5) would submit that the 6 th respondent has almost completed the work. The learned counsel appearing for respondents 2 to 5 would submit that the tender of the petitioner was rejected as tender fee and EMD fee stated to have been paid by the petitioner was ‘subject to Bank clearance’. It is submitted that instructions to bidders (Clause 15.3(a)) reads thus:- “The online payment of bid security and bid submissions fee should be made sufficiently early such that the specified date and time of the opening of the bid the status of payment should be successful. No “subject to Bank clearance” status will be entertained.” It is submitted with reference to Ext.R2(a) that as far as the WP(C) NO. 9925 OF 2017 4 petitioner is concerned the e-tendering system of the Government of Kerala reflected that the payment of tender fee and EMD fee was a failure and as subject to Bank clearance.

3. The learned counsel appearing for the petitioner seeks time to obtain instructions from his client.

4. Having heard the learned counsel for the petitioner, the learned counsel appearing for respondents 2 to 5 and the learned counsel appearing for the 6th respondent and in the background of the facts noticed above, I am of the view that this writ petition need not be adjourned to enable the counsel for the petitioner to obtain instructions. The tender of the petitioner was rejected on account of the fact that the tender fee and the EMD was not successfully remitted by the petitioner. There is absolutely no illegality in the rejection of the tender as it was rejected for non compliance of the conditions of tender. That apart, it appears that by passage of time the 6th respondent, who was awarded with the work has almost completed the work. Therefore, even if this Court were to find any illegality in the rejection of the bid of the petitioner, it would be only appropriate that this Court withholds relief in exercise of discretion. It is settled law that relief under Article 226 of the Constitution of India is discretionary and cannot be sought as a matter of right. WP(C) NO. 9925 OF 2017 5 Therefore, this writ petition will stand dismissed. DK Sd/- GOPINATH P. JUDGE WP(C) NO. 9925 OF 2017 6 APPENDIX OF WP(C) 9925/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 15-3-2017 EXECUTED BY THE DIRECTOR OF PETITIONER COMPANY IN FAVOUR OF THE GENERAL MANAGER (MARKETING) OF THE COMPANY DULY AUTHORIOSING AND EMPOWERING HIM TO REPRESENT THE PETITIONER IN LEGAL PROCEEDINGS TRUE COPY OF THE E-TENDER BEARING NO BID NO KL KSEB DRIP W8/VIII(G)/CE-2/2016-17 DATED 23-08-2016 TRUE COPY OF THE CONFIRMATION DATED 17- 1-2017 ISSUED BY THE 1ST RESPONDENT THROUGH THE E-TENDERING SYSTEM PORTAL TRUE COPY OF THE BID NEARING ID 191427 DATED 18-1-2017 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF THE APPLICATION SUBMITED BY THE PETITIONER WITH M/S. KOTAK MAHINDRA BANK FOR NEFT TRANSACTION OF RS. 10,000/- BEARING THE TENDER FEE TRUE COPY OF THE STATEMENT OF ACCOUNT ISSUED BY THE KOTAK MAHINDRA BANK SHOWING DEDUCTION OF RS. 10,000/- FROM THE ACCOUNT OF THE PETITIONER MAINTAINED AT KOTAK MAHINDRA BANK TRUE COPY OF THE BANK GUARANTEE ISSUED BY KOTAK MAHINDRA BANK FOR RS. 2,00,000/- IN FAVOUR OF THE 5TH RESPONDENT BEARING NO 0172BG16016549 DATED 15-12-2016 TRUE COPY OF THE BID OPENING SUMMARY DATED 25-1-2017 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE LETTER DATED 27-1-2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ALONG WITH THE ACKNOWLEDGMENT OF RECEIPT ENDORSED ON THE SAME BY THE 4TH RESPONDENT TRUE COPY OF THE LETTER DATED 6-2-2017 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT TRUE COPY OF THE SUIT NOTICE DATED 14-2- EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P11 WP(C) NO. 9925 OF 2017 7 EXHIBIT P12(A) EXHIBIT P12(B) EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 EXHIBIT P17 EXHIBIT P18 2017 ISSUED BY THE COUNSEL FOR THE PETITIONER TO THE RESPONDENTS 3 AND 4 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD ACKNOWLEDGING RECEIPT OF THE SAID NOTICE EVIDENCING RECEIPT OF EXHIBIT P11 NOTICE BY RESPONDENT 3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD ACKNOWLEDGING RECEIPT OF THE SAID NOTICE EVIDENCING RECEIPT OF EXHIBIT P11 NOTICE BY RESPONDENT 4 TRUE COPY OF THE REPLY DATED 7-2-2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER RECEIVED ON 13-2-2017 TRUE COPY OF THE LETTER DATED 02.03.2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER TRUE COPY OF THE QUERIES RAISED BY THE PETITIONER TO THE 4TH RESPONDENT AS PER LETTER DATED 5-10-2016 TRUE COPY OF THE QUERIES RAISED BY THE PETITIONER TO THE 4TH RESPONDENT AS PER LETTER DATED 28-10-2016 TRUE COPY OF THE REMINDER SENT BY THE PETITIONER TO THE 4TH RESPONDENT AS PER LETTER DATED 3-11-2016 TRUE COPY OF THE REMINDER SENT BY THE PETITIONER TO THE 4TH RESPONDENT AS PER LETTER DATED 10-01-2017