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M/s. Svasca Industries (India) Ltd. v/s Uttarakhand Power Corporation Limited & Others

    Special Appeal No. 04 Of 2022
    Decided On, 16 August 2022
    At, High Court of Uttarakhand
    By, THE HONOURABLE CHIEF JUSTICE MR. VIPIN SANGHI & THE HONOURABLE MR. JUSTICE RAMESH CHANDRA KHULBE
    For the Appellant: Davesh Bishnoi, learned counsel. For the Respondents: Dharmendra Barthwal, learned counsel.


Judgment Text
Vipin Sanghi, CJ.

1. The present Special Appeal is directed against the judgment rendered by the learned Single Judge on 05.01.2022, in Writ Petition (M/S) No. 28 of 2022. The said writ petition was dismissed by the learned Single Judge by the impugned judgment, wherein the petitioner has assailed its blacklisting for a period of three months by the respondent Uttarakhand Power Corporation Limited on account of the failure of the petitioner / appellant in providing the type test report within three months from the date of issuance of the Letter of Intent. The deadline expired on 22.08.2021.

2) The relevant facts have been taken note of in the impugned judgment. The petitioner being covered by the Micro, Small and Medium Enterprises Development Act, 2006, was issued an order for supply of 05 transformers, even though the petitioner was not the lowest bidder. The tender conditions clearly stipulated that the supplier should have the type test reports in respect of the transformers that he intended to supply. The petitioner, however, did not have the type test reports while submitting the tender, and took advantage of Clause 20 of the Tender Specification which provided that the bidders who participate in the tender process without valid type test report will have to mandatorily provide additional security at the rate of 5% of FOR destination price of material, including all taxes, and will have to provide the type test report within three months of the issuance of the Letter of Intent. The petitioner was not able to provide the type test reports within three months of the issuance of the Letter of Intent. That period expired on 22.08.2021. The petitioner sought extension of time to submit the type test reports on 08.09.2021, stating that he would submit the reports by 20.10.2021. The petitioner, however, did not submit the type test reports even by 20.10.2021. Eventually, the respondents on 25.11.2021, cancelled the Letter of Intent dated 25.05.2021; forfeited the 5% additional security of Rs.15,35,000/- and; debarred the petitioner from participating in future tenders of the respondent Corporation for a period of one year. The petitioner was aggrieved by the said action of the respondents and preferred Writ Petition (M/S) No. 2534 of 2021, which was disposed of on 03.12.2021 with a direction to the Managing Director of the Uttarakhand Power Corporation Limited to take a decision on the petitioner’s representation within two weeks. That representation was limited only in respect of the blacklisting of the petitioner.

3) The petitioner’s representation was thereafter considered by the Managing Director, who passed a fresh order of blacklisting, thereby reducing the period from one year to three months. This order was passed on 01.01.2022, which was put to challenge by the petitioner in the writ petition in question. The learned Single Judge has considered the submissions of the parties and he did not find any merit in the present petition and, consequently, dismissed the same.

4) The submission of learned counsel for the appellant is that it was on account of the lockdown situation due to COVID-19 pandemic, which was prevailing, that the appellant could not provide the type test reports within three months, or even within the extended period. The submission is that, eventually, the appellant did provide the same to the respondent before the cancellation of the Letter of Intent. The submission is that in these circumstances the blacklisting of the petitioner / appellant even for the reduced period of three months is uncalled for, and the same had the effect of resulting in business losses for the appellant as other distribution companies like the Uttar Haryana Bijli Vitran Nigam and Dakshin Haryana Bijli Vitran Nigam have held the appellant to be disqualified on account of the appellant’s blacklisting.

5) We have considered the submissions of learned counsel for the appellant, perused the impugned judgment and the record, and we do not find any merit in the same. Admittedly, the appellant was in reach of the terms of the tender as well as the Letter of Intent. The appellant was well aware of the fact that since the appellant did not have the type test reports at the time of participating in the tender process, the appellant would be obliged to obtain the type test reports within three months of the issuance of the Letter of Intent. The tender was invited during the COVID period and the appellant should have been aware as to how much time it would take for the appellant to obtain the type test reports in the eventuality of a Letter of Intent being issued to it. The appellant, however, failed to meet the said deadline and did not submit the type test reports by 22.08.2021. Even after grant of extension of time by nearly two months, the appellant failed to submit the type test reports by 20.10.2021. In fact, the cancellation of the Letter of Intent took place still a month later, i.e., on 25.11.2021. According to the petitioner, the test reports were submitted on 16th and 17th November, 2021, i.e., before the issuance of the cancellation letter.

6) The respondents were not obliged to wait unendingly for the appellant to obtain the type test reports and, in our view, no fault can be found with the action of the respondents in cancelling the appellant’s Letter of Intent, and subjecting the appellant to blacklisting which, eventually, has been reduced

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to only three months. The submission of learned counsel for the appellant that due to the said blacklisting the Dakshin Haryana Bijli Vitran Nigam and Uttar Haryana Bijli Vitran Nigam have disqualified the appellant, in our view, is neither here, nor there. If, according to the appellant, the said disqualification was wrong or illegal, it was for the appellant to take independent action in that regard. 7) In the light of the aforesaid, we do not find any merit in the present Special Appeal. The same is, hereby, dismissed. Stay Application (IA No. 01 of 2022) also stands disposed of.
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