Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 187 (DEL)

VINAY CONSTRUCTION CO v. M. C. D.

2006-01-25

PRADEEP NANDRAJOG

body2006
PRADEEP NANDRAJOG, J. ( 1 ) THE prayer made is to quash office order dated 9. 5. 2005 and officer order dated 17. 2. 2005 (Anexures P-1 and P-2 ). ( 2 ) VIDE office order dated 9. 5. 2005, stating that the petitioner has failed to deposit the performance guarantee in respect of 3 works listed therein, MCD suspended business with the petitioner for two years. Vide order dated 17. 2. 2005, listing out 6 works for which performance guarantee was not furnished, penalty of suspension for one year was inflicted upon the petitioner. ( 3 ) TWO fold grievances was raised by the petitioner. Both the grievances relate to the plea of discrimination. ( 4 ) THE first plea of discrimination is viz-a-viz one Anil Goel. It is stated that Anil Goel also did not deposit the performance guarantee. He sought for, and was granted time for furnishing the performance guarantee after the word order was issued. It is pleaded that the petitioner sought similar facility. It was granted. Work orders were never issued and, therefore, stage of submitting the performance guarantee or making deposit of the performance guarantee amount did not reach. Second plea of discrimination is that in a similar circumstance, another contractor M/s Shree Balaji Engineers, was imposed penalty of suspension of business for one year in respect of 11 works. ( 5 ) FACTUAL backdrop is that on 26. 8. 2004 MCD issued a notice inviting tenders. The notice specified 45 works for which quotations could be made. ( 6 ) PETITIONER s bids were accepted in respect of 9 listed works being at serial No. 1, 22, 23, 36 to 39, 41 and 42 of the NIT. ( 7 ) NOTICE inviting tender required performance guarantee to be furnished in the form of a cash deposit equivalent to 5% of the tendered value of the work. This amount had to be deposited within 15 days of bid acceptance letter being received. Bid acceptance letter was posted on 23. 11. 2004 ( 8 ) PETITIONER was to deposit a sum of Rs. 1,50,907/- being the performance guarantee for 9 works. ( 9 ) CITING financial crunch on account of non-receipt of outstanding payments from MCD, petitioner did not deposit the performance guarantee. To sort out the issue, petitioner sought, and was granted audience by the Executive engineer. He was to report on 31. 12. 1,50,907/- being the performance guarantee for 9 works. ( 9 ) CITING financial crunch on account of non-receipt of outstanding payments from MCD, petitioner did not deposit the performance guarantee. To sort out the issue, petitioner sought, and was granted audience by the Executive engineer. He was to report on 31. 12. 2004 Petitioner went to the office of the executive Engineer but could not meet him as the officer was not available in the office. ( 10 ) ON 4. 1. 2005, a letter was issued to the petitioner calling upon him to show cause as to why he has not deposited the performance guarantee sum. It was stated that if no reply was received, action as per law would be taken. ( 11 ) ON 10. 1. 2005, petitioner submitted a reply to the letter dated 4. 1. 2005. ( 12 ) ADDITIONALLY, petitioner addressed letters to the Superintending engineer. ( 13 ) IMPUGNED orders, as noted above, were passed against the petitioner. ( 14 ) COUNTER affidavit filed is far from adequate. There is no parawise reply. Even the general response is vague. ( 15 ) EXCEPT for stating that the petitioner did not deposit the performance guarantee for the awarded works, nothing has been stated in the counter affidavit. Pleas of discrimination have not even been dealt with, let alone countered. ( 16 ) HOW is the petitioner s case different from that of M/s Shree Balaji engineers (Contractors), has not been explained in the counter affidavit. ( 17 ) ANNEXURE P-4 is the office order dated 17. 2. 2005 imposing penalty against M/s Shree Balaji Engineer (Contractors ). For 11 defaults, period of suspension of business has been restricted to 1 year. As noted above, for 9 listed works, 2 penalty orders have been passed against the petitioner. Under one, period of suspension is 2 years and under the other, it is 1 year. ( 18 ) QUA the petitioner, respondent has also not stated in the counter affidavit whether the period of suspension would run concurrently or in succession. ( 19 ) IT is true that there cannot be any equality or parity in the matter of imposition of penalty, but that does not mean that the respondent can act at its whims and fancies. ( 19 ) IT is true that there cannot be any equality or parity in the matter of imposition of penalty, but that does not mean that the respondent can act at its whims and fancies. If, for 11 defaults, somebody is penalised for 1 year, certainly for 9 defaults, penalising somebody for 3 years appears to be excessive. In this connection, I may note that it is not the case of the respondent that though there were 11 defaults by M/s Shree Balaji Engineer contractors, sum covered by the defaults was less than the sum covered by the works awarded to the petitioner. ( 20 ) BUT I chose to decide the matter on more firmer grounds. In para 6 of the counter affidavit, MCD has pleaded as under :-"6. That the respondent, Municipal Corporation of Delhi accepted the above mentioned offer of the petitioner and with an intention to convert the offer of the petitioner to a Valid Contract the respondent, Municipal corporation of Delhi, duly communicated the acceptance to the offer of the petitioner vide letter dated 23. 11. 2004 The petitioner was also requested to deposit the performance guarantee amount equal to 5% of the tendered value of the Nine Works respectively within a period of 15 days. However, inadvertently petitioner was directed to deposit performance guarantee amount after issuance of the work orders in the said nine works. " ( 21 ) COUNTER affidavit has not explained as to why no penalty was inflicted upon Shri Anil Goel. ( 22 ) AS noted above, case pleaded by the petitioner qua Anil Goel is that mcd directed him to deposit the performance guarantee before starting the work but after issuing the work order. Qua petitioner also MCD said that he may deposit the performance guarantee after work order was issued. ( 23 ) ASSERTION of the petitioner that the work orders were never issued to the petitioner has been admitted by the respondent. Further assertion of the petitioner that he was verbally informed by the Executive Engineer that he could deposit the performance guarantee after issuance of the work order, has been explained in the counter affidavit as an inadvertent direction to the petitioner. ( 24 ) IN this context, plea of the petitioner assumes relevance. Plea is that of discrimination viz-a-viz Anil Goel. ( 24 ) IN this context, plea of the petitioner assumes relevance. Plea is that of discrimination viz-a-viz Anil Goel. Petitioner has stated that Anil goel was permitted to deposit the performance guarantee after work order was issued to him. Petitioner was also granted the said benefit. Thus, no work order being issued, petitioner was justified in not submitting the performance guarantee. ( 25 ) SINCE the respondent has not stated anywhere as to why they permitted anil Goel to submit performance guarantee after issuance of the work orders, plea of the petitioner of being discriminated stands established. ( 26 ) MATTER could be looked at from another angle. Being in the realm of contract, either party could seek a waiver of a condition and the other party could grant the necessary waiver. ( 27 ) PETITIONER sought waiver of submitting performance guarantee till work orders were issued. This was accepted by the Executive Engineer. If that be so, since work orders were not issued, I fail to understand as to how was the petitioner a defaulter. ( 28 ) THERE is one another angle from which the matter can be approached. If the respondent, as pleaded in the counter affidavit, inadvertently directed the petitioner to deposit the performance guarantee after issuance of the work order, least what was accepted from the respondent was to inform the petitioner that the Executive Engineer has inadvertently granted time to the petitioner to deposit the performance guarantee amount after the issuance of the work order. This would have enabled the petitioner to comply with the terms of NIT. How could the petitioner assume that the Executive Engineer acted inadvertently when he permitted the petitioner to deposit the performance guarantee amount after issuance of the work orders, more so, when similar benefit was granted to anil Goel. ( 29 ) PETITIONER did not get a stay of operation of the impugned orders. Petitioner has already suffered suspension of business for 11 months. ( 30 ) WRIT petition is accordingly allowed. Impugned orders dated 9. 5. 2005 (Annexure P-1) and 17. 2. 2005 (Annexure P-2) are quashed. ( 31 ) NO costs. .