Research › Search › Judgment

Telangana High Court · body

2024 DIGILAW 762 (TS)

Sai Parenterals Limited v. State of Odisha

2024-09-18

C.V.BHASKAR REDDY

body2024
ORDER : 1. This writ petition is filed praying this Court to declare the decision of the Technical and Managing Committee Meeting held on 13.08.2024 for debarring the petitioner company for a period of one year and forfeiting the Earnest Money Deposit amount under e-tender, dated 07.03.2024 vide Bid Reference No. OSMCL/2024-25/DRUGS-DHSGEN-GR-I/01, issued by respondent No. 2, without giving any notice or opportunity to the petitioner company as illegal, arbitrary and in violation of Articles 14 and 19 (1) (g) of the Constitution of India and consequently prayed to set aside the same and to direct respondent No. 2 to consider the representation, dated 25.07.2024 submitted by the petitioner and for other appropriate reliefs. 2. It is stated that the petitioner is a company incorporated under the provisions of the Companies Act, 1956. It is further stated that respondent No. 2 had issued e-tender, dated 07.03.2024 for procurement of drugs and medical consumables (Group I) for the financial year 2024- 2025 vide Bid Reference No. LSMCL/2024-25/DRUGSDHS-GEN-GR-I/01 and the petitioner has participated in the said tender and also furnished bank guarantee of Rs.50.00 lakh towards earnest money deposit. It is further stated that there are disputes between the petitioner-company and respondent No. 2 for supply of medical consumable goods and invoking the terms and conditions of the e-tender notification, respondent No. 2 has forfeited the earnest money deposited by the petitioner. Questioning the said action, the present writ petition has been filed. 3. Considered the submissions made by the learned counsel for the parties and with their consent this Writ Petition is disposed of at the admission stage. 4. Learned counsel for the petitioner has submitted that the petitioner company is situated in Hyderabad and it has furnished the bank guarantee issued by ICICI Bank, Hyderabad and the entire correspondence between the petitioner company and respondent No. 2 would reveal that part of cause of action arises at Hyderabad, as such this Court is having jurisdiction to entertain this writ petition. 5. Dealing with the issue pertaining to part of cause of action and jurisdiction in Kusum Ingots vs. Alloys Ltd. (2004) 6 SCC 254 , a three-Judge Bench of the Supreme Court reiterated the principles laid down in Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711 as well as in the case of State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 . 6. 6. In Om Prakash Srivastava v. Union of India, (2006) 6 SCC 207 the Supreme Court held as under: “8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. 12. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense “cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in “cause of action.” 7. It would be appropriate to quote Para-61 of the said judgment, which reads as follows: “61. (1) The correct test in cases falling under Order 2 Rule 2, is “whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.” (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. [Read v. Brown] (3) If the evidence to support the two claims is different, then the causes of action are also different. [Brunsden v. Humphrey] (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. [Read v. Brown] (3) If the evidence to support the two claims is different, then the causes of action are also different. [Brunsden v. Humphrey] (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. [Brunsden v. Humphrey] (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers....to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. [Chand Kour v. Partab Singh] This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2 Rule 2) where plaintiff made various claims in the same suit.” 8. In National Textile Corporation Limited v. Haribox Swalram, (2004) 9 SCC 786 referring to earlier cases, the Apex Court held as under: “12.1........the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained.” 9. In Alchemist Limited and Another vs. State Bank of Sikkim and Others, (2007) 11 SCC 335 the Apex Court after tracing the legislative history of Article 226 and its amendment, held that accrual of ‘cause of action’ is an additional ground for conferring jurisdiction on the High Court to exercise power under the said Constitutional provision and held as under: “Keeping in view the ratio laid down in catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the petitioner appellant, would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a ‘part of cause of action’, nothing less than. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a ‘part of cause of action’, nothing less than. In the present case, the facts which have been pleaded by the Appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of ‘cause of action’ within the meaning of Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition. For the foregoing reasons, we see no infirmity in the order passed by the High Court dismissing the petition on the ground of want of territorial jurisdiction.” 10. In the present case, the petitioner company has participated in the tender notification issued by respondent No. 2 i.e. Odisha State Medical Corporation Limited which is under the control of Government of Odisha and in terms of the tender conditions, the petitioner has entered into an agreement with respondent No. 2. Clause 6.35.2 of the tender notification stipulates jurisdiction. It states that all the disputes arising out of this bid will be subject to the jurisdiction of the Courts of law in Bhubaneswar/High Court of Orissa. Therefore, even if the action of respondent No. 2 is arbitrary and illegal, the petitioner is entitled to question the same by approaching the competent Court at Odisa, where respondent No. 2 corporation is located and e-tender notification has been floated. 11. In view of the same, this Court is not having jurisdiction to entertain the writ petition, which is filed questioning the action of respondent No. 2 in forfeiting the earnest money deposited in pursuance of the e-tender notification, dated 07.03.2024. 12. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. 13. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.