Matushri Trading Company v. Dean (CIMS) Chhattisgarh Institute of Medical Sciences
2017-09-08
SHARAD KUMAR GUPTA, T.B.RADHAKRISHNAN
body2017
DigiLaw.ai
ORDER : Sharad Kumar Gupta, J. 1. The petitioner, through the present writ petition challenges the action on the part of the respondents on two grounds; first ground is that the respondents, without any prior intimation, have changed the dated of opening of tender, and the second ground is that his technical bid has been orally rejected on the basis of his covering letter dated 10.07.2017, Annexure P/7. The facts, in brief, is that the petitioner is a trading company which deals with supply of scientific and medical instruments, chemicals, glassware and pathological Respondent No. 1 floated an open tender for supply of essential medical items including chemicals, reagent, diagnostic kits, glassware and other medical and laboratory items. Annexure P/3 dated 08.06.2017 shows the terms and rules of the said tender. The petitioner submitted a technical bid and a price bid before the last date. As per the clause 32 of the terms and conditions (Annexure P/3), he had also filed a duly notarized affidavit accepting all the conditions. His technical bid was rejected on the ground that in the covering letter Annexure P/7, he had mentioned the time period for supply would be within 4 to 6 weeks. That has been challenged by the petitioner in this writ petition. 2. The learned counsel for the petitioner argued that the technical bids of different applicants ought to have been opened on 14.07.2017 by 4 pm as per clause 16 of the terms and conditions (Annexure P/3), but without giving him prior intimation, they have been opened on 18.07.2017. It shows the arbitrariness, perversity and malafides of the respondents. The said covering letter was part of the technical bid and due to clerical mistake, time for supply had been inadvertently mentioned as "within 4 to 6 weeks" in that covering letter (Annexure P/7). The respondents have not communicated him the grounds for the rejection of his technical bid in writing. That action of the respondents is unreasonable and illegal. 3. The learned Deputy Advocate General supported respondents' action submitting that the petitioner had mentioned in his covering letter that supply would be made within 4 to 6 weeks and respondents were to make payment within 21 days which are against the terms and conditions of the tender. 4.
That action of the respondents is unreasonable and illegal. 3. The learned Deputy Advocate General supported respondents' action submitting that the petitioner had mentioned in his covering letter that supply would be made within 4 to 6 weeks and respondents were to make payment within 21 days which are against the terms and conditions of the tender. 4. It is worth mentioning that clause 5 and 16 of Annexure P/3 are helpful to resolve the dispute in case in hand which read as follows: ^^Ø; gsrq vknsf'kr dsfedy] fjtsaV] Mk;XuksfLVd fdV ,oa vU; esfMdy lkexzh vkns'k izkfIr ds 21 fnol ds vUnj lEiw.kZ ekin.M ds vuqlkj iznk; djuk gksxk vU;Fkk vkns'k Loeso fujLr ekuk tkosxkA le; ij iznku u djus dh n'kk esa foyEc ls izkIr lkexzh Lohdkj ugha dh tkosxh rFkk iznk;drkZ dks vius Lo;a ds O;; ls okil ysuk gksxkA 16- fufonk fu;r frfFk 14-07-2017 esa nksigj 3 cts ds iwoZ 'kkldh; iathd`r Mkd@iksLV ls vFkok muds vf/kd`r izfrfuf/k;ksa dh mifLFkfr esa fufonk fnukad 'kke 4-00 cts Ø; lfefr ds le{k [kksyh tk;sxhA 'kkldh; vodk'k dh fLFkfr esa nwljs dk;Z fnol esa fufonk [kksyh tk;sxhA^^ 5. It is noteworthy that the petitioner has not made any complaint to the competent authority that technical bids have been opened without intimating him, on 18.07.2017 instead of 14.07.2017. Petitioner also failed to show that such act of the respondents has caused prejudice to him. Moreover, no other applicant had made any such complaint to the competent authority. Thus, it could not be said that the act of changing the date of opening of the technical bids by the respondents is arbitrary, perverse or malafide. 6. Moreover, as per the petitioner's case subsequently he came to know that his technical bid had been rejected on the ground of additive submission of Annexure P/7 (covering letter) along with the technical bid. Thus, non-communication of rejection of his technical bid in writing is not fatal. Therefore, this Court rejects the argument of the counsel for the petitioner is this regard. 7. It is manifest that clause No. 2 & 3 of the terms and conditions given on covering letter Annexure P/7 has great importance to decide the matter which is as under: "Terms & Condition: 2. Supply within 4-6 weeks. 3. Payment within 21 days." 8.
7. It is manifest that clause No. 2 & 3 of the terms and conditions given on covering letter Annexure P/7 has great importance to decide the matter which is as under: "Terms & Condition: 2. Supply within 4-6 weeks. 3. Payment within 21 days." 8. From the contents of Annexure P/7 it is clear that it is nothing but an offer which has been proposed by the petitioner to respondent No. 1. Inasmuch: it was not necessary for the petitioner to file Annexure P/7 along with the technical bid, but he did so. 9. In the matter of Taylor v. Portington [(1985) All E.R. 128] and in Coffee Bangalore v. Janab Dada Haji Ibrahim Halari (AIR 1966 Mys 118], it has held that the terms of the offer must be certain definite and clear, if the terms of offer are not certain or definite, it is not a valid offer as it is not clear as to what exactly parties intend to do. The terms of the offer must be certain. Offer shall not be loose, vague or ambiguous. 10. Provision of Section 29 of the Indian Contract Act is notable and is extracted here below:- "Section 29. Agreements void for uncertainty- Agreements, the meaning of which is not certain, or capable of being made certain, are void." 11. In the matter of Mahabir Auto Stores v. Indian Oil Corporation Ltd. { AIR 1989 DEL 315 } the High Court of Delhi observed that an alleged contract in which the quantity, duration of supply or price of supply could not be determined, is uncertain and vague contract. 12. In the matter of Keshav Lal Lallubhai Patel v. Lalbhai Trikumlal Mills Ltd. { AIR 1958 SC 152 } the Hon'ble Supreme Court observed that a manufacturer who has agreed to supply goods wrote to the buyer: 'We cannot fulfill the orders placed by you in time.......Please note that the delivery time of all your pending contracts with us shall be automatically understood as extended for the period working is stopped and till the normal state of affairs recurs.' There were thus two conditions for extension of time, which, even if accepted by the buyers, were held to be vague and uncertain because it was no possible to ascertain definitely the period for which the time for performance was intended to be extended. 13.
13. As per the petitioner's case, he has made one offer along with the technical bid that he accepts all the terms and conditions of Annexure P/3 including the 5th condition that he should supply the items within 21 days from the date of receipt of supply order. By Annexure P/7, he made another proposal that he would supply the items within 4-6 weeks and the respondents would make payment within 21 days. Second condition of Annexure P/7 is in contravention of 5th term of Annexure P/3. In these circumstances and the aforesaid judicial precedents, this Court finds that stipulated time for supply of articles by both the offers in not definite and clear and as such, the same is vague and ambiguous because it is different in both the offers. The meaning of both the proposals regarding stipulated time for supply therefore suffers from uncertainty. Third condition of Annexure P/7 is also inconsistent with the terms and conditions of Annexure P/3 as it does not provide for any such time limit for payment. Thus, this Court reaches to the conclusion that both the offers are not valid proposals. In the light of the terms and conditions of Annexure P/3 and Annexure P/7 and looking to the above mentioned facts and circumstances, we are of the considered opinion that this is not a fit case for interference under Article 226 of the Constitution of India. This Writ Petition being devoid of merits is accordingly dismissed.