P.M. HASSANKUTTY, PARAPPILLIL HOUSE v. VICE CHANCELLOR, CALICUT UNIVERSITY

Smt.Bimala Baby – learned counsel for the petitioner, vehemently argued that, as per condition No.5 of Ext.P1 notification, the Earnest Money Deposit can be furnished by a Contractor in two different manner, namely, by way of a Deposit Receipt or in form of a Demand Draft, drawn in favour of the Finance Officer of the Calicut University. She explained that her client chose the first WPC 29656/23 3 option, producing it along with the tender documents; and therefore, that the University is wholly in error in having rejected it in favour of the 3rd respondent, which, according to her, can only be construed to be favouritism and nepotism. She thus prayed that this Writ Petition be allowed and the University be directed to accept the bid of her client, thus granting him the contract, as per law.

3. Sri.P.C.Sasidharan – learned Standing Counsel for the University, controverted the afore submissions made on behalf of the petitioner, relying upon a counter affidavit filed on behalf of respondents 1 and 2, saying that the assertions afore recorded are factually and legally untenable. He explained that, as rightly argued by Smt.Bimala Baby, as per Ext.P1 notification, the EMD of Rs.50,000/- has to be remitted in the form of a ‘Deposit Receipt/Demand Draft of State Bank of India, drawn in favour of the Finance Officer, University of Calicut’ (sic). He submitted that, therefore, any Deposit Receipt or Demand Draft ought to be drawn in favour of the Finance Officer; but that, in this case, the petitioner ingeniously obtained a Deposit Receipt in his own name, showing a certain person as his nominee and obviously, therefore, that it can WPC 29656/23 4 never be accepted as the EMD since, such amount would not be accessible to the University of Calicult. He then pointed out that, going by the afore Clause of Ext.P1, if there is any failure in compliance of the stipulated mandatory requirements, the quotation require to be rejected, which has been done correctly and without any error by his client. He then added that, though not cited as the rejection of the bid, the University has reasons to believe that the petitioner is incapable of satisfying the contract because of his antecedents – that, when he had taken such in the past, he could not complete it, thus causing great amount of prejudice to the University. He, however, hastened to add that this is not the reason why the petitioner’s present bid has been rejected, but only because the requisite EMD was not available along with it, which is a mandatory condition.

4. Sri.T.R.Madhu – learned counsel for the 3rd respondent, submitted that this Writ Petition is mischievous because, the petitioner did not offer an EMD as required in Ext.P1, but has still chosen to challenge the contract awarded to his client. He asserted that his client has complied with every imperative requirement under WPC 29656/23 5 the tender notification; and therefore, that they were eminently qualified to have granted the contract, as has been correctly done by the University.

5. I have carefully evaluated the afore rival positions of the parties, on the touchstone of various materials available on record.

6. The primary question in this case is whether the petitioner had supported his offer/tender with the requisite EMD, in the manner as is stipulated in Ext.P1 notification.

7. No doubt, as acceded to by both sides, Clause 5 of Ext.P1 mandates that the EMD of Rs.50,000/- has to be offered by the tenderer by way of a Deposit Receipt/Demand Draft, drawn in favour of the Finance Officer, Calicut University. It is, therefore, indubitable that any of the afore instruments ought to be drawn in favour of the said Authority and cannot be favouring the tenderer himself, or any other person.

8. In the case at hand, however, Ext.P3 – which is conceded to be the Term Deposit Receipt obtained by the petitioner – is drawn in his own favour, with a certain Smt.Sumiya P.H. being shown as the nominee. Though the said letter is addressed by the State Bank WPC 29656/23 6 of India in favour of the Finance Officer, Calicut University, it renders it inescapably clear that the beneficiary of the Term Deposit is the petitioner himself and not the said Authority; which is fortified by the admitted fact that the proceeds on its maturity is specified to be paid into the account of the petitioner, or into an account of his choice.

9. Apodictically, Ext.P3, or the Term Deposit reflected therein, can never be construed to be the EMD as prescribed in Ext.P1. In the afore circumstances, the reliefs sought for by the petitioner in this Writ Petition cannot be acceded to; and therefore, am constrained to dismiss it without any further orders. It is so ordered. RR Sd/- DEVAN RAMACHANDRAN JUDGE WPC 29656/23 7 APPENDIX OF WP(C) 29656/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 RESPONDENT EXHIBITS Exhibit R3(a) EXHIBIT R1(a) TRUE COPY OF TENDER NOTICE ISSUED BY 2ND RESPONDENT DATED 13/06/2023 TRUE COPY OF TENDER FORM SUBMITTED BY PETITIONER TRUE COPY OF SPECIAL TERM DEPOSIT ADVICE DATED 06/07/2023 TRUE COPY OF CHALLAN RECEIPT DATED 04/07/2023 SHOWING REMITTANCE OF RS. 2500/- BY PETITIONER TRUE COPY OF THE TERM DEPOSIT ADVICE ISSUED IN FAVOUR OF FINANCE OFFICER CALICUT UNIVERSITY DATED 06/07/2023 TRUE COPY OF REPRESENTATION FILED BY PETITIONER BEFORE 2ND RESPONDENT DATED 15/07/2023 TRUE COPY OF POSTAL RECEIPT OF REPRESENTATION FILED BY PETITIONER BEFORE 2ND RESPONDENT DATED 15/07/2023 TRUE COPY OF APPLICATION UNDER RIGHT TO INFORMATION ACT 2005 FILED BY PETITIONER DATED 14/07/2023 TRUE COPY OF POSTAL RECEIPT OF APPLICATION UNDER RIGHT TO INFORMATION ACT 2005 FILED BY PETITIONER DATED 15/07/2023 TRUE COPY OF THE JUDGEMENT DATED 23/08/2023 IN W.P. (C) NO. 25890/2023 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO M/S MANICKOMSIVALINGAM, THE HIGHEST BIDDER FOR UNUSED BALANCE QUESTION PAPERS FOR ENTERING INTO AGREEMENT DATED 22/08/2023 A TRUE COPY OF THE COVERING LETTER DATED 28/08/2023 TRUE COPY OF THE POSTAL RECEIPT DATED 28/08/2023 TRUE COPY OF THE ANSWER TO THE RTI APPLICATION DATED 16/08/2023 True copy of the letter issued by the 2nd Respondent to the 3rd Respondent dated 22.08.2023 A true copy of U.O.No.523/2020/PB dated 03/06/2020 issued by the Calicut University WPC 29656/23 PETITIONER EXHIBITS Exhibit P15 8 A true copy of letter communicating acceptance of tender dated 16/04/2022