JUDGMENT: S.A. Bobde, J. 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties. 2. The petitioner has sought quashing of communication dated 12.08.2010 by which respondent-Vidarbha Irrigation Development Corporation (For Short “VIDC”) has held the petitioner, which is a Joint Venture, as disqualified for want of requisite experience prescribed by the condition of tender. 3. The petitioner is a Joint Venture, which has been formed for the purposes of executing the work floated by the tender in question, for excavation, embankment and construction of canal in the lower Pedhi Project, Tq. Bhatkuli, Dist. Amravati. There is no dispute that the constituents of the petitioner Joint Venture M/s.Atasha Ashirwad Builders and M/s. Aditya Construction Company have agreed that their investment in the Joint Venture will be to the extent of 70:30 % and they will also share the profit in the same ratio. 4. Clause 2.9 of the tender document, lays down the eligibility criteria. Clause II of Clause 2.9 lays down the requirement of general experience. Sub clause (3) of Clause II of this clause, which reads as follows:- “II General Experience 1) ..... 2) ..... 3) As a contractor, he should have executed quantity equal to or more than 8000 of cement concrete work during at least one working season on any one work site during last five years and should have executed quantity equal to or more than 12000 Cum of cement concrete work during any at least one working season on all works taken together.” The two constituents of the petitioner Joint Venture have requisite experience of 8000 Cubic Meter (Cum.) of cement concrete work, during one working season and 12000 Cum. cement concrete work, taken together. However, while evaluating the experience, the respondents have held the petitioner has experience of only 5433 Cum. Of work executed during one working season and 6439 Cum. Of all works during all working seasons taken together. This assessment by the respondent-VIDC is by reducing the actual experience of constituents of the petitioner-Joint Venture to the extent of their investment and profit sharing ratio of 70:30%. In other words, according to the respondent-VIDC since the constituents of the petitioner have investment and profit sharing ratio of 70:30%; in Joint Venture Agreement their experience is also liable to be restricted to 70:30%. 5. Mr. In other words, according to the respondent-VIDC since the constituents of the petitioner have investment and profit sharing ratio of 70:30%; in Joint Venture Agreement their experience is also liable to be restricted to 70:30%. 5. Mr. Jaiswal, the learned counsel for the petitioner, submitted that the petitioner is a Joint Venture, which is the result of coming together of the two firms, and if experience of both constituents of the Joint Venture is taken together, it has more than the requisite experience laid down by the VIDC i.e. 5433 Cum. cement concrete work during one working season and 6439 Cum. work during all working seasons. Mr. Jaiswal, the learned counsel, further submitted that one of the purposes of forming the Joint Venture was that the experience of two partners could be taken cumulatively for the purposes of making the bid in question. According to the learned counsel for petitioner, the respondent-VIDC is not entitled to arbitrarily reduce the experience of the petitioner-Joint Venture to the extent of the ratio of the investment and profit sharing of its constituents. 6. Mr. Palshikar, the learned counsel for the VIDC, submitted that though the constituents of the petitioner-Joint Venture, have more experience than the requisite work experience laid down by the VIDC, taken together they are entitled to have their experience taken into account in the ratio of 70:30% only because those are the terms of investment, profit sharing and entitlement in the formation of the Joint Venture. In other words, it is the contention on behalf of the respondent-VIDC that since one partner has agreed the investment of 70% of the total capacity of the Joint Venture and another partner has agreed to 30%, the two constituents are only entitled to have their experience assessed in the same ratio. 7. Having considered the matter, we do not find any justification on the part of the respondent-VIDC in assessing the experience of Joint Venture by reducing the actual experience of constituents of the Joint Venture to the ratio of their investment and profit sharing. There is no correlation between the extent of investment of a partner in a Joint Venture and his experience. The two are entirely different things. It cannot be said that a partner’s experience is affected in any way because he invests in the Joint Venture only to a certain extent. There is no correlation between the extent of investment of a partner in a Joint Venture and his experience. The two are entirely different things. It cannot be said that a partner’s experience is affected in any way because he invests in the Joint Venture only to a certain extent. The attempt to correlate the two seems wholly unjustified and absurd. 8. Joint Ventures are commonly formed by two or more individuals with a view to pool their resources, skill, experience etc. in order to inter alia meet the eligibility criteria of tenders of specific projects. The fact that participation of the constituents of the Joint Venture is in a particular ratio cannot become a reason to whittle down and reduce the experience of the constituents. The partners, who constitute the Joint Venture, may agree to limit investment and profit sharing to a certain percentage. This does not mean that they have thereby agreed to have a limited experience. If, in fact, a partner has certain amount of experience, that experience remains as a part of experience of a Joint Venture when the Joint Venture makes a bid and the ratio of investment and profit sharing are the factors, which have nothing to do with such experience. 9. In New Horizons Limited and anr. ..vs.. Union of India and ors.; (1995) 1 Supreme Court Cases 478 the Supreme Court has observed as follows: “23. Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-04-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the recognised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganized company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignored the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offer for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-04-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment. 10. In view of above, we find that for judging the credentials of a Joint Venture, the past experience of the constituents of the Joint Venture will have to be taken into account to arrive at the experience of Joint Venture. Admittedly, in the present case, if that is considered and taken together, the experience of Joint Venture is more than 5433 Cum. of cement concrete work during one working season on any one work site and 12000 Cum. Cement concrete works on all work sites as required by Sub Clause II of Clause 2.9 reproduced supra. 11. In this view of the matter, we find that there is no justification for restricting the experience of the constituents of the Joint Venture in relation to the work experience of steel and for assessing the bid capacity. There is no justification for restricting the experience in these two areas either. 12. At this stage, we must take note of the contention of Mr.Palshikar, the learned counsel for respondent-VIDC, who rely upon clause 2.2.5 of the Tender Notice, which is reproduced below:- “2.2.5. If the application is made by Joint Venture Consortia of two or more firms as partners. a) ..... b) The firm forming the Joint Venture Consortia shall have drawn a registered partnership deed, with registrar of companies, a certified copy of which shall be submitted with the application. If the application is made by Joint Venture Consortia of two or more firms as partners. a) ..... b) The firm forming the Joint Venture Consortia shall have drawn a registered partnership deed, with registrar of companies, a certified copy of which shall be submitted with the application. The partnership deed should be irrevocable till the completion of the work for which prequalification is being sought, and till all the liabilities thereof are liquidated. Whereas the share of the firm of the higher registration category (which has to be class-I & II) shall not be less than 50%. The percentage share of all the other firms (in the partnership deed) of the lower categories shall not be more than their respective limits of eligibility to quote for works or percentage bear with the estimated cost of work put to tender. According to Mr. Palshikar, this clause justifies the restriction of experience of constituents to the percentage share in Joint Ventures. We are unable to agree with this submission since this clause has nothing to do with the assessment of experience for the profits inter alia where Joint Venture consists of constituents with different registration categories, such as Class-I and Class II, a firm which has a higher registration category shall not have a share less than 50% in the Joint Venture and that the percentage share of the other firms of the lower categories shall not be more than their respective limits of eligibility to quote for works. The latter part of the clause is not clear. However, it is clear that the said clause has no bearing on the manner of assessment of experience of a Joint Venture. 13. In this view of the matter, the impugned communication dated 12.08.2010 is set aside. The respondents are directed to issue tender forms to the petitioner for finalising a bid and consider the bid of the petitioner, in accordance with law. Rule made absolute in the above terms. No order as to costs.