Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (C) No. 19006 of 2021
Pooja Ceratech Private Limited ...Petitioner (s)
Versus
Oil and Natural Gas Corporation Ltd. & Anr. ...Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 27.07.2021 passed by the High Court of Gujarat in Special Civil
Application No.3569 of 2020 by which the High Court has dismissed the said
writ application preferred by the petitioner, the original writ petitioner has
preferred the present special leave petition.
2. The respondent – Oil and Natural Gas Corporation Limited issued a
tender notice for sale of gas. That the writ applicant participated in the tender
process by offering its bid. The petitioner received an e-mail on 29.11.2019
from one of the officers of the Corporation informing that upon evaluation of
the technical bids on 17.09.2019, the price bids were to be opened on
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.12.06
17:45:04 IST
Reason:
03.12.2019 at 03.00 PM. That the petitioner requested the Corporation to
permit him to modify his price bid on the ground that he has committed a
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mistake in offering the price. Initially, it was decided to postpone the opening
of the price bids, however, the Corporation thereafter decided to open the
price bids in absence of the writ petitioner. That thereafter the Corporation
disqualifying the writ applicant, decided to invoke the bank guarantees
furnished by the writ applicant towards the security interest deposit invoking
clause 14.5(b) of the tender document. The writ applicant challenged the
decision of the Corporation to forfeit the security interest deposit by invoking
the bank guarantees. The writ petitioner preferred writ petition before the High
Court under Article 226 of the Constitution of India. By the impugned
judgment and order, the High Court keeping the question “whether in a
contractual matter, the writ petition under Article 226 of the Constitution will be
maintainable or not?” considered the matter on merits and has dismissed the
writ petition, which has given rise to the present special leave petition.
3. We have heard Shri Malak Manish Bhat, learned Advocate appearing on
behalf of the petitioner.
4. Shri Bhat, learned Advocate appearing on behalf of the petitioner has
heavily relied upon the decision of this Court in the case of Kailash Nath
Associates Vs. Delhi Development Authority and Anr., (2015) 4 SCC 136
and has submitted that as held by this Court and considering Section 74 of the
Indian Contract Act unless there is a loss caused and/or established and
proved, there is no question of forfeiting the security deposit. It is submitted
that the purpose of security deposit is to secure the payment after entering
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into the contract and during the contract there is any failure on the part of the
contractor to fulfill his part of the contract.
5. Having gone through the decision of this Court in the case of Kailash
Nath Associates (supra) and considering the relevant clause of the tender
document, more particularly, Clause 14.5, we are of the opinion that the action
of the Corporation is absolutely in consonance with the terms and conditions
of the tender document. As per Clause 14.5, the security deposit submitted
by the bidders shall be forfeited by the Corporation in the event…… “bidder
varies or modifies the bid in a manner not acceptable to ONGC during the
validity period or any extension thereof duly agreed by the bidder”.
6.
Then it is submitted that it was not a case of modification of the bid but it
was only an arithmetical error in calculation which was sought to be corrected.
The aforesaid is factually not correct. In the communication dated 03.12.2019,
it is submitted that there was a misunderstanding in the price calculations of
the bidding price.
7. Then it is next submitted that even the offer was not varied during the
validity period. However, it is required to be noted that the last date of
submitting the tender was 17.09.2019 and the opening date was 17.09.2019.
The request for modification/variation of the bid offer was made on
03.12.2019. Therefore clause 14.5(b) of the tender document shall be
applicable.
8. No error has been committed by the High Court in dismissing the writ
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petition, hence this special leave petition is dismissed.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
DECEMBER 3, 2021. [B.V. NAGARATHNA]
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REVISED
ITEM NO.6 Court 13 (Video Conferencing) SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 19006/2021
(Arising out of impugned final judgment and order dated 27-07-2021
in SCA No. 3569/2020 passed by the High Court Of Gujarat At
Ahmedabad)
POOJA CERATECH PVT. LTD. Petitioner(s)
VERSUS
OIL AND NATURAL GAS CORPORATION LTD. & ANR. Respondent(s)
(FOR ADMISSION and I.R. )
Date : 03-12-2021 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MRS. JUSTICE B.V. NAGARATHNA
For Petitioner(s) Mr. Malak Manish Bhatt, AOR
Ms. Neeha Nagpal, Adv.
Mr. Vijay Patel, Adv.
Mr. Anubhav Taneja, Adv.
For Respondent(s) Mr. Ajay Jain, Adv.
Mr. Jinendra Jain, AOR
Ms Tannu, Adv
Ms Mitika Choudhary, Adv
UPON hearing the counsel the Court made the following
O R D E R
Heard Mr. Malak Manish Bhatt, learned counsel for the
petitioner and Mr. Ajay Jain, learned counsel appearing for
respondent No.1.
The special leave petition is dismissed in terms of the signed
reportable judgment.
(MEENAKSHI KOHLI) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS BRANCH OFFICER
[Signed reportable judgment is placed on the file]
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ITEM NO.6 Court 13 (Video Conferencing) SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 19006/2021
(Arising out of impugned final judgment and order dated 27-07-2021
in SCA No. 3569/2020 passed by the High Court Of Gujarat At
Ahmedabad)
POOJA CERATECH PVT. LTD. Petitioner(s)
VERSUS
OIL AND NATURAL GAS CORPORATION LTD. & ANR. Respondent(s)
(FOR ADMISSION and I.R. )
Date : 03-12-2021 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MRS. JUSTICE B.V. NAGARATHNA
For Petitioner(s) Mr. Malak Manish Bhatt, AOR
Ms. Neeha Nagpal, Adv.
Mr. Vijay Patel, Adv.
Mr. Anubhav Taneja, Adv.
For Respondent(s) Mr. Ajay Jain, Adv.
Mr. Jinendra Jain, AOR
Ms Tannu, Adv
Ms Mitika Choudhary, Adv
UPON hearing the counsel the Court made the following
O R D E R
Heard Mr. Malak Manish Bhatt, learned counsel for the
petitioner and Mr. Ajay Jain, learned counsel appearing for
respondent No.1.
The special leave petition is dismissed.
Reasoned order to follow.
(MEENAKSHI KOHLI) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS BRANCH OFFICER
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