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Tender : Comparative merits of parties; Not for Court to decide

The Supreme Court of India on Thursday, February 01, 1990 in G.J. Fernandez Vs. State of Karnataka considered the validity of Award of contract by Karnataka Power Corporation to Mysore Construction Co. and eligibility of party to apply for State contracts. The Court also considered the essentiality of supply of tender documents.

Notification Inviting Tender

A bench comprising of Justice Rangnathan and Justice K.N. Saikia observed that if a party has been consistently and bona fide interpreting the standards prescribed by it in a particular manner, Court should not interfere though it may be inclined to read or construe the conditions differently.

The petitioner aggrieved by the award of a contract by the respondent in favour of Mysore Construction Company (M.C.C.) filed a Writ Petition and a further Writ Appeal in the Karnataka High Court. Being unsuccessful there he came up in appeal before this Court by way of special leave.

The single judge of the High Court had taken the view that prerequisites for the supply of tender forms were contained in Para I of the Notification Inviting Tender (NIT) and the details called for in Para V could be supplied any time.

The Division Bench on appeal did not express any opinion regarding the requirements set out in para V but was of the view that there was nothing unfair or arbitrary about the award of the contract to the MCC.

In appeal before Apex Court the plea of the petitioner is that the Karnataka Power Corporation should not have accepted the tender of MCC, as the MCC did not fulfil certain preliminary requirements contained in Para I and V of the NIT which according to him have to be fulfilled before the forms of tender could be supplied to any intending contractor.

Dismissing the appeal of the petitioner, the Court, held that Para V cannot but be read with para I. The supply of some of the documents referred to in para V is indispensable to assess whether the applicant fulfills the prequalifying requirements set out in para I. It will be too extreme to hold that the omission to supply every small detail referred to in para V would affect the eligibility under para I and disqualify the tenderer.

Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract. On the other hand its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract. No injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits.

The comparative merits of the appellant ViS-a-vis MCC are, however, a matter for the KPC to decide and not for the Courts.

Ram Gajadher Nishad v. State of U.P., (C.A. 1819/89); Ramana Dayaram Sherry v. The International Airport Authority of India & Ors., [1979] (3) SCR 1014, referred to.

The Civil Appellate Jurisdiction of the Apex Court exercised in Civil Appeal No. 1027 of 1990 arose from the Judgment and Order dated 27.10.1989 of the Karnataka High Court in Writ Appeal No. 2017 of 1989.

Advocates K. Parasaran, C.S. Vaidyanatha, S.R. Bhat, S.R. Setia, K.V. Mohan and Mrs. Sunitha B. Singh appeared for the Petitioner and K.N. Bhatt, Rajinder Sachhar, Vineet Kumar, B. Mohan and K.G. Raghvan for the Respondents.

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