IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.01.2023

CORAM :

THE HON’BLE MR.T.RAJA, ACTING CHIEF JUSTICE AND

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

W.A.Nos.2803 and 2804 of 2022

and C.M.P.Nos.22793, 22794, 22788 and 22789 of 2022

In W.A.No.2803 of 2022 :

M/s. Fun World & Resorts India Pvt. Ltd.,

Rep. by its GPA, U.Sivanarayanan          .. Appellant

 

Versus

1. The Principal Secretary to Government, Tourism, Culture, Religious Endowments,     and Chairman, Tamil Nadu Tourism Development     Corporation, Fort St.George, Secretariat,     Chennai – 600 009.
2. The Managing Director,

Tamil Nadu Tourism Development Corporation,     No.2, Wallajah Salai, Chennai – 600 002.

3. The General Manager,

Tamil Nadu Tourism Development Corporation,

No.2, Wallajah Salai,

Chennai – 600 002.                   .. Respondents

In W.A.No.2804 of 2022 :

M/s. Fun World & Resorts India Pvt. Ltd.,

Rep. by its GPA, U.Sivanarayanan          .. Appellant

 

Versus

1. The Principal Secretary to Government, Tourism, Culture, Religious Endowments,     and Chairman, Tamil Nadu Tourism Development     Corporation, Fort St.George, Secretariat,     Chennai – 600 009.
2. The Managing Director,

Tamil Nadu Tourism Development Corporation,     No.2, Wallajah Salai, Chennai – 600 002.

3. The General Manager,

Tamil Nadu Tourism Development Corporation,     No.2, Wallajah Salai,     Chennai – 600 002.

4. M/s. Sunlight World,

Rep. by its Proprietor, Mr.Peer Anees Raja                   .. Respondents

Prayer in W.A.No.2803 of 2022 : Writ Appeal filed under Clause 15 of the Letters Patent to set aside the common order, dated 19.12.2022 passed in the W.P.No.32957 of 2022 and consequently, direct the 2nd respondent to accept appellant’s commercial / price bid submitted along with the tender application for conduct of 47th India Tourist and Industrial Fair, 2023 at Island Grounds along with other bidders application conducted vide Tender Notification bearing No.51/FS/2022, dated 31.10.2022.

Prayer in W.A.No.2804 of 2022 : Writ Appeal filed under Clause 15 of the

Letters Patent to set aside the common order, dated 19.12.2022 passed in the W.P.No.33477 of 2022 and consequently, quash the impugned order bearing letter No.51/FS/2022, dated 03.12.2022 issued by the 2nd respondent and further direct the official respondents 1 to 3 to grant permission to petitioner for conducting the fair 47th India Tourist and Industrial Fair, 2023 at Island Grounds, Chennai on opening of the petitioner’s financial bid.

In W.A.No.2803 of 2022 :

For Appellant           : Mr.M.Vijay Anand

For Respondents : Mr.R.Shunmugasundaram,   Advocate General,

Assisted by Mr.A.Edwin Prabakar,

State Government Pleader,

M/s.A.G.Shakeena, for RR-1 to 3 In W.A.No.2804 of 2022 :

For Appellant           : Mr.M.Vijay Anand

For Respondents : Mr.R.Shunmugasundaram,   Advocate General,

Assisted by Mr.A.Edwin Prabakar,

State Government Pleader,

M/s.A.G.Shakeena, for RR-1 to 3

: Mr.B.Kumar, Senior Counsel   for Mr.C.Iyyapparaj, for R4

 

 

COMMON JUDGMENT D.BHARATHA CHAKRAVARTHY, J.

These two Writ Appeals are filed aggrieved by the common order passed by the learned Single Judge dated 19.12.2022 in W.P.Nos.32957 and 33477 of 2022.

2. The appellant filed W.P.No.32957 of 2022 for a Mandamus directing the second respondent namely, the Managing Director, Tamil Nadu Tourism Development Corporation to accept the appellant’s commercial bid submitted along with tender application for conduct of 47th India Tourist and Industrial Fair, 2023 at Island Grounds, Chennai along with other bidders’ applications for the same vide tender notification, bearing No.51/FS/2022, dated 31.10.2022.
3. Pending the Writ Petition, one M/s. Sunlight World, represented by its Proprietor, Peer Anees Raja, was granted the permission for conducting the said Fair by an order, dated 03.12.2022 and therefore, challenging the same, the second Writ Petition in W.P.No.33477 of 2022 was filed. As such, both the matters were taken up together and were dismissed by the learned Single Judge rejecting the prayers and therefore, the present appeals.
4. The appellant is a Company incorporated under the Companies Act, 2013 and is in the business of conducting the fairs and exhibitions all over India. As a matter of fact, the appellant had conducted the very same India Tourist and Industrial Fair at Island Grounds, Chennai, for about 6 times between 2012 – 2020 and even for the years 2021 – 2022, it was allotted, but, was unable to conduct due to Covid – 19  While so, the tender, dated 31.10.2022 was floated by the second respondent for conduct of the 47th India Tourist and Industrial Fair, 2023 for the present year.  The appellant duly submitted its bid in one sealed cover containing both technical bid and financial bid.  However, after opening the technical bid on 30.11.2022, the appellant’s representative was neither permitted in the opening of the financial bid nor their financial bid was opened.
5. The appellant submitted its objections on 02.12.2022 and filed the first Writ Petition on 05.12.2022. For the first time before the Court, the respondents contended that there is an arrear amount of Rs.3,06,903/- which is payable by the appellant to the second respondent and therefore, as per the tender conditions, the appellant is disqualified.  Thereafter, the respondent also proceeded to award the Fair to the said M/s. Sunlight World and challenging the same, the second Writ Petition is filed.
6. The learned Single Judge, after considering the tender conditions that if the tenderer has any dues to the second respondent namely, the Tamil Nadu Tourism and Development Corporation, it cannot participate in the tender, found that by a communication dated 20.08.2019, the amount was demanded from the petitioner. The learned Single Judge found that the dispute made by the petitioner, as to the liability to pay the said amount, cannot be decided in the instant Writ Petition relating to the tender and when the second respondent claims that the amount is due, the petitioner could have paid the amount under protest before taking a decision to participate in the tender process.  Thus, the learned Single Judge found that when the amount is due, as per the Tender Scrutiny Committee, they have rightly rejected the bid and therefore, dismissed the Writ Petition with costs of Rs.25,000/-.
7. Heard M.Vijay Anand, learned Counsel for the appellant, Mr.R.Shunmugasundaram, the learned Advocate General appearing on behalf of the respondents 1 to 3 and Mr.B.Kumar, learned Senior Counsel appearing on behalf of the fourth respondent in W.A.No.2804 of 2022.
8. M.Vijay Anand, learned Counsel, taking this Court through the material records of the case, would contend that the respondents have willfully and with a malafide intention, have raised a stale claim as if a sum of Rs.3,06,903/- was pending from the petitioner. As a matter of fact, the said amount was claimed by the second respondent by their demand, dated 20.08.2019.  Immediately thereof, on 05.09.2019, the petitioner sent a detailed reply and had given their calculations and had even claimed a sum of Rs.2,15,532/- which is actually due from the second respondent to the appellant.  As a matter of fact, thereafter the accounts in respect of the 45th India Tourist and Industrial Fair, 2019 was settled on 26.09.2019, in which, after considering the entire accounts, a sum of Rs.8,42,918/- payable to the appellant was paid.  If the amount was actually due, the above said Rs.3,06,903/- could have also been deducted from the appellant.  In that view of the matter, when the respondents have themselves settled the due amount after raising the above demand, it is only with a malafide intention, they have raked up the issue now at the time of scrutiny of the tender only to favour the successful bidder.  Therefore, it is the contention of the appellant that the entire exercise, on the part of the respondents, was arbitrary and malafide and therefore, the rejection of the petitioner’s bid is illegal and the respondents have to redo their exercise once again by taking into account the petitioner’s bid and to award the permission to conduct the Fair to the petitioner.
9. Further, the learned Counsel also taking this Court through the original tender condition, as amended by the Corrigendum – 02, dated 22.11.2022, would submit that the successful bidder ought to have paid 50% of the total bid amount on the date of receipt of the order and another 30% should have been paid without 7 days from the date of signing of the agreement and the balance 20% ought to have paid within 15 days from the date of signing of the agreement. When the said conditions, which are also equally the tender conditions are not followed by the said M/s. Sunlight World, the impugned order, awarding the contract to them is liable to be quashed.  The learned Counsel also relied upon the judgment of this Court in CSEPDI – TRISHE Consortium Chennai represented by its Managing Director Sanjay K. Pillai Vs. Tamilnadu Generation & Distribution

Corporation Limited, Chennai (TANGEDCO) rep. by its Chairman & Managing Director and Ors.^[1] to contend that proper reasons should have been spelt out and ought to have communicated to the appellant to reject their bid and in the absence of the same, the impugned action cannot be sustained.  The learned Counsel also relied upon a judgment of the learned

Single Judge in W.P.Nos.13481 and 13488 of 2021 (P.Ravishankar Vs. State of Tamil Nadu and Ors.) to contend that this Court, in exercise of its jurisdiction under Article 226 can interfere in contractual matters to prevent arbitrariness, irrationality, unreasonableness, bias and malafide.

10. Per contra, R.Shunmugasundaram, the learned Advocate General would submit that tender was floated with specific conditions. It is clearly mentioned in Clause – 4 that anyone having outstanding dues to TTDC or tenderers blacklisted by TTDC or by any other government

department are not eligible to participate directly or indirectly in the tender. The appellant is due of a sum of Rs.3,06,903/- to TTDC, the second respondent herein.  The demand for payment of arrears is not raised for the first time, but, originally was made on 20.08.2019.  Even in the appellant’s reply dated 05.09.2019, to the said demand it is the contention of the appellant that the due amount has been arrived at by TTDC because of the levy of service tax on entry fees and it was their contention that previously, service tax on entry fee was not collected from the organisers.  Secondly, they themselves have admitted in the said reply that they have not settled rental charges in full because TTDC has not released revenue share in gate collection payable once in 15 days as per the work order condition.  They had further requested TTDC to collect rental dues from the gate collection shares and other amount payable to them.  It is incorrect to link the said dispute of Rs.3,06,903/- to the settlement of the accounts in respect of the 45th fair conducted in 2019.  As far as the present due is concerned, even thereafter, on 18.05.2020, a reminder was sent claiming the amount.  A further reminder on 18.06.2020 was also made.  This apart, after filing the Writ Petition, the appellant itself has paid the said amount also.  Therefore, it is too late in the day to contend that the second respondent has willfully raised an issue.  Thus, the tender of the appellant has rightly been rejected.

11. B.Kumar, learned Senior Counsel, appearing on behalf of the successful bidder, would submit that they have duly participated in the tender and has been declared as successful bidder. Filing an affidavit, he would contend that as required in the tender condition, 50% was paid as on date of the order and 30% was also paid by way of cheque within 7 days from the date of the execution of the contract and the balance 20% is also paid within the time.  He would further submit that after getting the contract, the bidder had invested more than Rs.1,00,00,000/- and had put up the necessary stalls and the Fair had also commenced and is running.
12. We have considered the rival submissions made on either side and perused the material records of the case. As far as the rejection of the bid of the appellant is concerned, we are unable to accept the contention of the learned Counsel for the appellant that the demand has now been malafidely raised only to disqualify the petitioner.  As rightly pointed out by the learned Advocate General, the original demand was raised in the year 2019 and even after the settlement of the other account, in the year 2020 also, the second respondent – TTDC has been persisting with the demand.  Therefore, when the appellant has to participate in the tender, knowing the condition, it ought to have either paid the amount or challenged the demand in the manner known to law.  Just by disputing the dues, it cannot contend that there are no dues. When the amount of Rs.3,06,903/- is prima facie due, this Court, in this proceedings relating to tender, cannot go into the accounts of the appellant vis-a-vis TTDC, especially, when the demand has been made much prior to floating of the tender.  Therefore, we hold that the Tender Scrutiny Committee was right in rejecting the bid of the appellant and the reasoning of the learned Single Judge in rejecting the Writ Petition does not require interference.
13. Further, on a perusal of the affidavit filed by the successful bidder, the fourth respondent, it is clear that they have complied with the terms of payment as per the original tender condition as mandated. The contention in reply made  by the learned Counsel appearing on behalf of the appellant that the payment is envisaged only by way of Demand Draft and the payment by cheque ought not to have been made.  In this regard, the relevant provision in the tender conditions relied upon by the learned

Counsel for the appellant relates to payment of the earnest money deposit.

There is no specific tender condition prohibiting the payment the further bid amounts by cheque.  Therefore, when the bidder has paid the amount by way of cheque and the same has been accepted by the second respondent, the said action cannot be termed to be illegal. Further, no other infirmity whatsoever has been pleaded before the learned Single Judge or before us.

14. Thus, finding no merits, the Writ Appeals shall stand dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

   (T.R., ACJ.)               (D.B.C., J.)

23.01.2023

Index : yes

Speaking order order Neutral Citation : yes grs

To

1. The Principal Secretary to Government, Tourism, Culture, Religious Endowments,     and Chairman, Tamil Nadu Tourism Development     Corporation, Fort St.George, Secretariat,     Chennai – 600 009.
2. The Managing Director,

Tamil Nadu Tourism Development Corporation,     No.2, Wallajah Salai, Chennai – 600 002.

3. The General Manager,

Tamil Nadu Tourism Development Corporation,     No.2, Wallajah Salai,     Chennai – 600 002.

T.RAJA, ACJ.,

AND

D.BHARATHA CHAKRAVARTHY, J.,

grs

 

W.A.Nos.2803 and 2804 of 2022 and C.M.P.Nos.22793, 22794, 22788 and 22789 of 2022

23.01.2023

[1] CDJ 2015 MHC 6416