M/S Swastic Construction Company v. South Delhi Municipal Corporate & Anr

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) AUGUST 12, 2013 'sn'

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 12th August, 2013 + W.P.(C) 4556/2013 M/S SWASTIC CONSTRUCTION COMPANY ..... Petitioner Through : Mr. Sidharth Joshi, Adv. versus SOUTH DELHI MUNICIPAL CORPORATION & ANR ..... Respondents Through : Ms. Biji Rajesh, Ms. Ashna Bhalla for Mr. Gaurang Kanth, Advs. Mr. B.B.Aggarwal, Executive Engineer (Project-I), Central Zone SDMC. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. The petitioner, in these proceedings seeks a direction for quashing/setting aside Notice Inviting Tender (NIT) bearing Tender No.173604 which was issued vide Tender Ref. No.D/EE/ (Pr)-I/CNZ/TC/2012-13/23.01 dated 23rd October, 2012 and further direction to the respondents to return the Earnest Money Deposit of Rs.7 lakhs. Page 2 2. The brief facts are that the respondent, i.e. South Delhi Municipal Corporation (hereafter referred to as "the Corporation") published the aforesaid NIT inviting offers/bids in respect of re- modelling of existing nallah along Taimoor Nagar and Khizrabad Village. The estimated cost of the work was Rs.350 lakhs approximately; bidders were required to be experienced in that they ought to have had successfully completed requisite works during the last seven years. The various parameters of eligibility were clearly spelt out along with the time lines. The relevant dates for the purposes of the present controversy are that the close of bid was on 29th November, 2012 at 15:01 hrs; the opening of the financial bid was scheduled for 29th November, 2012 at 15:15 hrs. The tender was scheduled for 9th December, 2012 at 17:01 hrs. 3. In the present case, the Corporation decided to postpone the opening of the financial bid from the scheduled date to 6th December, 2012; but it was ultimately done on 21st December, 2012. The petitioner was found to be the lowest bidder (L-1) and informed of it much later. On 14th May, 2013, the petitioner wrote the following letter to the Corporation indicating that though it was recognized as Page 3 L-1, it was no longer interested in accepting the Contract for performance of work. It, therefore, sought for refund of Earnest Money Deposit. The petitioner reasoned that "the last date of opening financial bid (manual and online) was 06th December, 2012; so validity of the rates was upto 5th May, 2013:- "Ref. No............. Dated 14.05.2013 To The Executive Engineer Pr. (Central I), Jal Vihar, Lajpat Nagar, Delhi. Sub.: Remodelling and covering of existing nalla along Taimoor Nagar & Khizrabad village in ward No.7 Central Zone (new ward 205) at the risk & cost of original contractor. Tender Ref. No. : 173604. Last date of download 26/11/2012, Last date of Bid submission 29.11.2012 and last date of opening financial bid (Manual & Online) 06/12/2012. Sir, The abovesaid work was floated by your Division. Our Agency was the L-1 in the above subjected work. The validity of the rates was valid for 5 months from the stipulated date of opening of the tenders. The last date of opening financial bid (Manual & Online) 06/12/2012, so validity of the rates was valid upto 05.05.2013 but till day we did not get any information from your side. In the face abovesaid facts, we request your goodself for release of EM deposit in the above subjected tender. Thanking you, Yours Truly (For Swastic Construction Co.) Page 4 Enclosure : Copy of tender detail (extract from NIT) P-1 to P-6 showing the details of tender sale & opening." 4. The Corporation rejected the petitioner's contention stating that since the financial bid for the work was opened on 21st December, 2012, the validity of the work and the bids were extended upto 25th May, 2013. In these circumstances, the Corporation refused to refund the EMD and relieve the petitioner from the contract. 5. In reply to another letter dated 17th May, 2013, the Corporation stated as follows:- "SOUTH DELHI MUNICIPAL CORPORATION OFFICE OF THE EXECUTIVE ENGI