TMI Blog2019 (4) TMI 1838X X X X Extracts X X X X X X X X Extracts X X X X ..... tender documents also refers only to these three eventualities. It is not a case where no specific format is provided, where possibly it could have been contended that the disclosure has to be in respect of all the four aspects. The format having been provided, if initiation of blacklisting was to be specified, then that ought to have been included in the format. It cannot be said that the undertaking by the appellant made it the bounden duty of the appellant to disclose the aspect of a show cause notice for blacklisting. There are serious disputes relating to the allegations made by respondent No.3, which are rebutted by the appellant. Opportunity had to be afforded to cross-examine the deponents who had filed affidavits. This would really not be possible in writ proceedings and could have only been determined in suit proceedings. There cannot always be a shortcut, through a process of writ proceedings under Article 226 of the Constitution of India, when such disputes exist - the aforesaid aspects, especially in the context of endeavours of courts to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under: Accordingly, in the above circumstances a situation has, prima facie, emerged that M/s Caretel Infotech Pvt. Ltd. has endeavoured to procure the above tender by providing false, misleading and wrong information. Therefore, the Department hereby issues notice to M/s Caretel Infotech Pvt. Ltd. to show cause as to why suitable action for blacklisting the firm (M/s. Caretel Infotech Pvt. Ltd.) should not be initiated. You are requested to clarify your position within 7 (seven) days from the date of issue of this letter. Response received after expiry of the provided time limit will not be entertained. (emphasis supplied) 5. The appellant submitted the bid in respect of the e-tender on 19.12.2017. In terms of clause 20 extracted aforesaid, a format had been provided for the declaration to be made, which is as under: DECLARATION NON BLACKLISTED/NON BANNED/NON HOLIDAY LISTED PARTY WE CONFIRM THAT WE HAVE NOT BEEN BANNED OR BLACK LISTED OR DELISTED OR HOLIDAY LISTED BY ANY GOVERNMENT OR QUASI GOVERNMENT AGENCIES OR PUBLIC SECTOR UNDERTAKINGS Date: __________ Name of Tenderer: _____________ Place: _________ Signature Seal of Tenderer : _____________ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was issued on 12.2.2018 for a value of ₹ 791 lakh basic for services to be rendered for a period of two years. 8. Respondent No.3 filed a writ petition in the Bombay High Court on 17.2.2018, assailing the declaration of the appellant as L-1. The purchase order in favour of the appellant confirming the terms of contract and mode of payment was issued on 21.2.2018. One day later, on 22.2.2018, the Ministry of Agriculture and Farmers Welfare passed an order blacklisting and debarring the appellant from participating in any tender process of the Government of India, Ministry of Agriculture and Farmers Welfare for two years with effect from the date of issue of the order. This order was assailed by the appellant by filing a writ petition before the Delhi High Court, which was pleased to issue notice on 9.3.2018, and we are informed that subsequently, on 12.3.2019, that petition was dismissed and a Letters Patent Appeal filed against the same is pending. 9. Respondent No.3, having become aware of the factum of blacklisting of the appellant amended the petition to incorporate the said fact. The writ petition was allowed by the impugned order of the Division Bench dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, has deemed it fit not to proceed with the inquiry and to await the verdict in the present appeal. 12. We have heard Mr. Shyam Diwan, learned senior counsel for the appellant, Mr. K.V. Vishwanathan, learned senior counsel for respondent No.3 and Mr. Parijat Sinha, learned counsel for respondent No.1. The submissions on the two aspects advanced by learned counsel for the parties and our findings are recorded hereinafter. Blacklisting: 13. Mr. Shyam Diwan, learned senior counsel for the appellant contends that the impugned order misreads the blacklisting clause 20. The submission was that undoubtedly, the appellant could not have been categorised as a party who has been banned/blacklisted/put on holiday list. This is also in the context of the fact that such blacklisting has severe consequences and the clause itself provided that non-submission of declaration in the prescribed format would make the bid non- responsive and the offer would be rejected. In terms of clause 20(ii), the written declaration had to be given as on the due date of the tender. The format in which this declaration was to be given was specified and was not left to the own words of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. It was his submission that the present case was one where blacklisting had been, at least, initiated and, therefore, the appellant was duty bound to make a disclosure of this fact along with his tender, not as per the format, but in terms of the undertaking to be given by the bidder, which required full disclosure. That undertaking, it was submitted, was breached, as held by the impugned order. 17. Learned counsel further contended that the plea sought to be raised by the appellant, on the interpretation of clause 20(i), was not even the case pleaded by the appellant in their challenge to the blacklisting order, in their writ petition, but what was pleaded there was only the absence of an opportunity of hearing. 18. In the alternative, learned counsel also sought to contend that respondent No.1 had not complied with the interim directions, at the stage of issuing notice on 7.1.2019, and ought to have implemented the impugned order and held an inquiry and that inquiry report ought to have been placed before the Court. 19. On the other hand, learned counsel for respondent No.1 submitted that respondent No.1 had, in its wisdom, stayed its hand after issuance of notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant as to violate the stated condition 4 of clause 20(i). We may look at another angle of the same issue, i.e., the integrity pact provided for in clause 20(iii) with the format thereof, a detailed one. The integrity pack provided that the parties shall make certain commitments to each other in regard to ensuring transparency and fair dealing in the procurement activities of the Corporation. The duly signed integrity pact is an essential condition for a valid bid. This clause, thus, deals with the transparency and fair dealing of the activities carried out under the tender were it to be awarded insofar as the procurement activities are concerned. Once again, this would not have any relevance to the stated fourth part of clause 20(i). 24. We may also look at this aspect from another perspective. Blacklisting has very serious consequences. A show cause notice may result in blacklisting or may not result in blacklisting. The mere show cause notice being issued, to visit such a severe consequence on a bidder, may be difficult to sustain. 25. The case of the appellant is further fortified by even the language used in the show cause notice. The show cause notice itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes relating to the allegations made by respondent No.3, which are rebutted by the appellant. Opportunity had to be afforded to cross-examine the deponents who had filed affidavits. This would really not be possible in writ proceedings and could have only been determined in suit proceedings. There cannot always be a shortcut, through a process of writ proceedings under Article 226 of the Constitution of India, when such disputes exist. We may usefully refer to the observations of this Court in Roshina T v. Abdul Azeez K.T. Ors. (2019) 2 SCC 329, opining that the writ jurisdiction under Article 226 of the Constitution of India is not intended to replace ordinary remedies by way of a civil suit, and this jurisdiction should not be exercised casually or lightly on mere asking by the litigant. 32. We may notice another important aspect also, i.e., reluctance of respondent No.1 to accept the allegations of respondent No.3. If respondent No.1 itself had doubts on the certificate, that would have been another matter. This is not so as is apparent from the affidavit filed by respondent No.1. In any case, at best, this aspect ought to have been left to the wisdom of respondent No.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by Government and Public Sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector. 37. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited Anr. (2016) 16 SCC 818, this Court has expounded further on this aspect, while observing that the decision making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended .... .... .... .... .... 19. .....In Trollope Colls Ltd. v. North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, 609 Lord Pearson, with whom Lord Guest and Lord Diplock agreed, said: the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: i ..... 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