Misrilall Mines Pvt Ltd and Anr v. Mmtc Ltd and Ors

SANJAY KISHAN KAUL, J.

FEBRUARY 12, 2013

INDERMEET KAUR, J. b'nesh

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 12.02.2013 + W.P.(C) 5709/2012 MISRILALL MINES PVT LTD AND ANR ..... Petitioners Through: Mr. S. Dasgupta, Mr. Sandip Kr. Dutta & Mr. Siddharth Gautam, Advs. versus MMTC LTD AND ORS ..... Respondents Through: Mr. Sanjeev Puri, Sr. Adv. with Mr. Gautam Awasthi, Adv. for R-1 to 5. Mr. Sunil Kumar, Adv. for R-6. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MS. JUSTICE INDERMEET KAUR 1. The petitioner No.1 claims to be a producer of Friable Chrome Ore and Chrome Concentrate having a mine containing natural reserve in the State of Orissa. Respondent No.6/Union of India constituted, designated and nominated respondent No.1/MMTC as the sole canalizing agency under the Export & Import Policy framed from time to time under the Foreign Trade (Development & Regulation) Act, 1992 (hereinafter referred to as the "said Act"). 2. The dispute originally arose on account of a meeting of Chrome Ore Producers held on 10.7.2012 wherein representatives of petitioner No.1 were present. The minutes recorded of the said meeting show that when respondent No.1 introduced e-auction method for sale of chrome ore and chrome ore concentrates to seven enlisted empanelled buyers, the same was challenged by the petitioners by filing a writ petition before the High Court of Calcutta. The said writ petition is stated to be still pending though no interim orders were granted in those proceedings. Petitioner No.1 is stated to have sent communication to respondent No.1 suggesting that a global tender with certain conditions would be the appropriate methodology rather than having an empanelled list of buyers who would be entitled to purchase through the process of e- auction. The views expressed by the representatives of other sellers are also noticed in the said minutes. 3. Petitioner No.1 claims that though the e-tender system was introduced by respondent No.1, later on the said respondent exempted petitioner No.1 from reserve price fixation and also online forward auction with regard to the export of cargo of petitioner No.1. However, practically speaking petitioner No.1 was not permitted to make export on one pretext or the other. 4. The respondent No.1 sought to introduce global e-tender system for export vide communication dated 20.7.2012. The said letter reads as under: "MMTC LOGO By Courier No.MMTC/2012-13/CR/7554 20th July, 2012 To, Shri S.K. Jain, Director, M/s. Misrilal Mines Pvt. Ltd., "MINERAL HOUSE" 27 A, Camac Street KOLKATA-700016. Sub: Global E tender for export of Chrome ore/Concentrate Dear Sir, During the Chrome Producers Meet held on 10th July, 2012, the selling mechanism of chrome ore and chrome concentrate was discussed. Besides in the pre bid conference held on 15th June, 2012 the prospective bidders had also suggested for adoption of global tender for exports of chrome ore/concentrate. Now it has been decided that MMTC shall invite global E tender for sale of chrome ore/concentrate offered quantity by the suppliers. There shall be two bid systems (Part I: Technical Bid and Part II: Price Bid) in the tender. The brief details of Global tender are as under: i) TECHNICAL BID Bidder shall fulfill the following criteria and submit supporting documents in tender box. (a) Turnover: Minimum average annual turnover of US$50 millions (Average turnover for last 3 years; in case of years of operation being less than 3 years, average of completed years of operation). (b) Networth: Minimum networth of US$ 5 million as on last annual balance sheet. (c) Past experience: Minimum experience of one year in minerals business. (d) Credit rating: Minimum "satisfactory" or equivalent (i.e. from D&B, S&P, Moody"s ICRA, CRISIL, CARE etc.). (e) Bank reference report along with letter of credit limit. (f) EMD: Bidder shall submit an EMD for amount equivalent to 3% of the cargo value in the form of BG/FUND TRANSFER. (g) Performance guarantee: An undertaking to furnish PBG for 10% of the total contr