Bombay High CourtAct Through Its Partner Shri vs Rashtriya Chemicals & Fertilizers on 3 July, 2013Author:B.P. DharmadhikariBench:B. P. Dharmadhikari,A.S. Chandurkarwp2272.13                                                                    1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                     
                 WRIT PETITION NO.  2272  OF  2013




                                             
     M/s. S. Mohan Singh Bhatiya,
     a registered Partnership Firm
     under theIndian Partnership




                                            
     Actthrough its Partner Shri
     Trilokchan Singh s/o Mohan
     Singh Bhatiya, aged about 42
     years, occupation - Business,




                                
     r/o Fulchur Road, Gondia,
     Tahsil & District - Gondia.  
                     ig                        ...   PETITIONER

                 Versus
                   
     1. Rashtriya Chemicals & Fertilizers
        Limited, Head Office at Chuna
        Bhatti, Sion, Mumbai, through 
        its General Manager.
      


     2. Rashtriya Chemicals & Fertilizers
   



        Limited, Dandige Layout, Shankar
        Nagar, Nagpur, through its Area
        Manager.





     3. e-Procurement Technologies Pvt.
        Ltd., B-705, Wall Street II, Opp.
        Orient Club, Near Gujarat College,
        Ellisbridge, Ahmedabad 380 006





        Gujarat (India).                        ...   RESPONDENTS


     Shri R.S. Parsodkar with Shri A.M. Balpande, Advocate for the 
     petitioner.
     Shri G.G. Modak, Advocate for respondents No. 1 & 2.
     Shri Anjan De, Advocate for respondent No. 3.




                                             ::: Downloaded on - 27/08/2013 21:02:40 :::
      wp2272.13                                                                             2

                           
                       CORAM :  B.P. DHARMADHIKARI &




                                                                              
                                  A.S. CHANDURKAR, JJ.
     DATE OF RESERVING JUDGMENT        : JUNE 28, 2013.
     DATE OF PRONOUNCING JUDGMENT :  JULY  03, 2013.




                                                      
     JUDGMENT :(Per B.P. DHARMADHIKARI, J.)
             




                                                     
                   Rule.   Rule is made returnable forthwith and heard 

     finally with the consent of Shri Parsodkar , learned counsel for 




                                        
     the petitioner, Shri Modak, learned counsel for respondents No. 
                        
     1 & 2 and Shri De, learned counsel for respondent No. 3.2.            By this petition underArticle 226of the Constitution 
      


     of   India,   the   petitioner,   a   registered   Partnership   firm,   seeks   a 
   



     direction   against   Respondents   No.   1   &   2   to   permit   it   to 

     participate in e-Reverse Auction and to consider its tender along 





     with   other   bidders   in   accordance   with   law.     This   Court   on 

     22.04.2013   issued   notices   and   on   26.04.2013   after   hearing 





     counsel   for   respondents   No.   1   &   2,   directed   the   parties   to 

     maintain   status   quo   till   06.05.2013.     On   10.05.2013,   after 

     hearing counsel for the respondents, the Court clarified that the::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                           3status quo granted by it on 26.04.2013 enabled the petitioner to 




                                                                            
     raise   his   bills   at   the   rate   calculated   at   Rs.2,50,00,000/-proportionately.  This order continues to operate even today.3.            Civil Application No. 1191 of 2013 has been moved 




                                                   
     by the petitioner to correct the name of the advocate recorded in 

     this order dated 26.04.2013.  The error is only typographical and 




                                       
                       
     hence that prayer is granted.4.            Civil Application No. 1201 of 2013 is moved by one 

     Tirath   singh   Awatar   Singh   Bhatiya   under   Order  1,   Rule   10   of 
      


     Civil   Procedure   Code,   seeking   leave   to   be   joined   as   party 
   



     respondent.   He has pointed out that being lowest bidder, he is 

     entitled to get work order and same has been withheld because 





     of   interim   orders   of   this   Court.     The   application   has   been 

     considered   at   the   stage   of   final   hearing   on   28.06.2013.     The 





     petitioner has not joined said lowest bidder as party respondent 

     and there is no amendment sought in either prayer clause or in 

     the petition.::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                          45.           Shri   Parsodkar,   learned   counsel   appearing   for   the 

     petitioner   has   pointed   out   that   the   tenders   were   invited   by 




                                                   
     Respondents No. 1 & 2 for Rake handling and transport contract 

     for fertilizers movement at Gondia.  27.02.2013 was the last date 




                                                  
     for   submission   of   tenders   which   were   opened   immediately 

     thereafter.  Participation in e-Reverse Auction of tenderers, found 




                                      
                      
     eligible, was must.  The petitioner satisfied pre-qualification bids 

     and,   therefore,   on   20.03.2013,   he   was   called   upon   to   remain 
                     
     present on 23.03.2013 for opening of price bids.   The qualified 

     bidders were then to participate in e-Reverse Auction which was 
      


     to be conducted on-line.  To participate in it, a digital signature 
   



     was   necessary.     The   entire   e-Reverse   auction   was  entrusted  to 

     service provider - Respondent No. 3.  The petitioner was called 





     upon to deposit Rs.4,500/- for a valid digital signature certificate 

     to enable him to log-in by Respondent No. 3.  The said amount 





     was paid by the petitioner on 26.03.2013.   On 10.04.2013 he 

     received   another   e-mail   from   respondent   No.   3   asking   it   to 

     submit   a   form   duly   filled   in   and   to   deposit   an   amount   of::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                              5Rs.5,620/-   for   registration.     Accordingly,   that   amount   was 




                                                                               
     deposited   on   10.04.2013.     Respondent   No.   3   then   confirmed 

     registration of the petitioner to participate in e-Reverse auction 




                                                       
     scheduled   on   12.04.2013   between   12   Noon   and   1.00   P.M. 

     Respondent   No.   3   then   attempted   to   give   training   to   the 




                                                      
     Manager/ representative of the petitioner's firm on 11.04.2013 

     but due to technical snag, the petitioner could not log-in.   On 




                                         
                        
     11.04.2013,   Respondent   No.   3   sent   two   e-mails   showing   that 

     administrator   had   approved   the   digital   ID   request   of   the 
                       
     petitioner.  In this background, our attention has been invited to 

     para   12   of   writ   petition.     It   is   contended   that   the   petitioner's 
      


     Manager was continuously talking with Respondent No. 3 on his 
   



     two mobile numbers but the digital signature could not be used 

     to log-in because of technical snag.   The petitioner recorded all 





     efforts made in software known as Team Viewer which is a must 

     for e-Reverse auction.   After said software is activated, tenderer 





     has to give ID and password, and thereafter the computer of the 

     tenderer   is   controlled   by   a   service   provider   like   Respondent 

     No.3.  On 11.04.2013, machine of the petitioner was controlled::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                             6by   Respondent   No.   3   and   Team   Viewer   log   file   for   said   date 




                                                                              
     shows that because of technical snag, digital signature could not 

     be used to log-in.  The petitioner has produced a copy of said log 




                                                      
     file   as   Annexure.     E-Reverse   auction   was   to   commence   at   12 

     Noon on 12.04.2013 and hence the petitioner was continuously 




                                                     
     on inter-net but its digital signature could not log-in the site for 

     E-reverse auction.  The Manager was continuously in touch with 




                                        
                       
     Respondent No. 3, particularly Mr. Nitin and Mr. Kishor in the 

     office   of   Respondent   No.   3,   who   were   also   trying   to   help   the 
                      
     petitioner   to   log-in   but   the   efforts   could   not   succeed.     Time 

     period   meant   for   said   auction   was   getting   over   and   hence 
      


     Manager   Shri   Rajiv   Sharma   of   Respondent   No.   3   told   the 
   



     petitioner   that   time   would   be   extended   up   to   3.00   P.M.     The 

     efforts to log-in were continuing.   Phone call by the petitioner's 





     Manager made at about 2.17 P.M., t0   Respondent No. 3   was 

     answered   by   said   Rajiv   Sharma.     The   digital   signature   of   the 





     petitioner could log-in only at 2.43 P.M. but then, according to 

     petitioner, Respondent No. 3 malafidely refused it participation 

     therein on the ground that scheduled time was already over.  The::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                            7petitioner has submitted that immediately thereafter he sent e-mails   to   Respondents   No.   1   &   2   and   to   service   provider   and 

     lodged its protest.   It is urged that the petitioner being existing 




                                                    
     contractor for the year 2012-13 for same work with Respondents 

     No.   1   &   2   with   past   track   record   and   without   any   adverse 




                                                   
     remarks,   the   denial   of   e-Reverse   participation   has   resulted   in 

     injustice.  It is further stated that for Wadsa, a similar e-Reverse 




                                       
                       
     auction was conducted and on 12.04.2013 , the petitioner could 

     log-in the site of Respondent No.3 - Service Provider at about 
                      
     5.35  P.M.,  permitted  participation  of  the  petitioner  and  this  e-Reverse   auction   was   then   followed   by   negotiation   which   took 
      


     place   on   13.04.2013.     The   petitioner   contends   that   thus   for 
   



     Gondia Rake point, Respondent No. 3 - service provider played 

     mischief.   The petitioner has in para 20 further stated that till 





     new tenderer is finalized by Respondents No. 1 & 2 for the year 

     2013-14,  the  petitioner  is  ready to  work  at  rates  approved  by 





     Respondents No. 1 & 2 for the year 2012-13.  A communication 

     was   accordingly   sent   by   the   petitioner   to   said   respondents   on 

     19.04.2013.::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                            86.            Shri   Parsodkar,   learned   counsel   points   out   that 




                                                                             
     insofar   as   importance   of   Team   Viewer   software   is   concerned, 

     Respondent No. 3 has not denied it and has not produced any 




                                                    
     records to counter the same.  He, therefore, requests the Court to 

     permit the petitioner further participation in tender process.  He 




                                                   
     has taken the court through various e-mails exchanged between 

     the parties for said purpose.7.            Shri Modak, learned counsel for respondents No. 1 & 
                      
     2   has   pointed   out   that   after   the   orders   of   this   Court   on 

     10.05.2013, Respondents No. 1 & 2 have started consequential 
      


     necessary   exercise   and   after   completion   of   that   exercise,   said 
   



     interim order will be obeyed.   The allegations in petition   are 

     against Respondent No. 3 and Respondents No. 1 & 2 had also 





     outsourced the function of issuance of a valid digital signature 

     certificate   to   Respondent   No.   3.     The   contentions   of   the 





     petitioner show that there was some technical fault on the part 

     of said respondent which prevented the petitioner's participation 

     in   e-Reverse   auction.     Those   allegations   are   stated   to   be   not::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                              9proved.  The support is being taken from the documents sent by 




                                                                               
     Respondent No. 3 to Respondents No. 1 & 2.  It is contended that 

     the petitioner was using wrong Windows Operating System and 




                                                       
     did   not   follow   guidelines.     Attention   is   invited   to   the 

     communication dated 09.04.2013 sent by Respondent No. 3 to 




                                                      
     the petitioner to show that e-Reverse auction required Windows 

     XP (SP- III Application) while the petitioner was using a lower 




                                         
                        
     version.   Shri Modak, learned counsel submits that Respondent 

     No.   3   had   loaded   the   new   version   on   the   machine   of   the 
                       
     petitioner on 11.04.2013 and offered to train its representative/ 

     officer twice but the petitioner did not utilize that opportunity.The   allegations   of   malafides   by   the   petitioner   are   against 
   



     Respondent No. 3 and not against Respondents No. 1 & 2.  It is 

     submitted   that   Respondents   No.   1   &   2   were   dependent   upon 





     Respondent   No.   3   and   they  cannot   be   made   to  suffer   for  any 

     fault   on   the   part   of   Respondent   No.   3   or   on   the   part   of   the 





     petitioner.   Lastly, he submits that whether Personal Computer 

     (P.C.) of the petitioner was properly functioning and whether the 

     petitioner could not log-in or there was any other fault, are all::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                           10disputed questions which can be satisfactorily answered in a civil 




                                                                               
     suit only.  He, therefore, prays for dismissal of the petition.8.            Shri   De,   learned   counsel   for   respondent   No.   3   -Service Provider relies upon the reply affidavit filed by the said 




                                                      
     respondent.     He   submits   that   the   contention   of   the   petitioner 

     that   it   could   not   log   on   11.04.2013   due   to   technical   snag     is 




                                         
                        
     incorrect.     The   representative   of   Respondent   No.   3   had   called 

     upon the petitioner for configuration and training at 4.00 P.M. 
                       
     but   then   the   petitioner   intimated   that   it   would   call   back 

     Respondent No. 3. For installation of D.S.C.,  Respondent No. 3 
      


     had updated operating system of the petitioner from SP-II to  SP-III.  At 9.30 P.M. on 11.04.2013, representative of respondent No. 

     3 received call from the petitioner about successful installation of 





     digital certificate and logging-in.  The said respondent had done 

     all configuration and at 9.30 P.M. on 11.04.2013, the petitioner 





     confirmed that it was able to see the digital signature into the 

     system.::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                       119.           On 12.04.2013, Respondent No. 4 gave a call to the 




                                                                           
     petitioner at about 10.30 A.M. but then the representative of the 

     petitioner   was   not   in   the   office   and   message   was   given   to 




                                                   
     Respondent No. 3 that the petitioner would call back.   Around 

     11.30 A.M., Respondent No. 3 received call from the petitioner 




                                                  
     that it was not able to log-in.  Respondent No. 3 found that the 

     petitioner   was   using   Window   XP   SP-II.     Respondent   No.   3 




                                      
                      
     submits that the petitioner had changed the system again and 

     there was no technical snag because other participating bidders 
                     
     had logged in and had participated in e-Reverse auction.   Shri 

     De,   learned   counsel   points   out   that   on   09.04.2013   and 
      


     10.04.2013, the need of using SP-III version was communicated 
   



     to   all,   including   the   petitioner   and   they   were   informed   that 

     secured   socket   layer   certificate   for   e-programme   was   being 





     generated on a new algorithm, S.H.A. 2.   The digital certificate 

     applicable for this platforms was, therefore, required to be S.H.A. 





     2 algorithm compliance.  The website for such updating was also 

     intimated.     As   the   petitioner   could   log-in   successfully   on 

     11.04.2013,   it   is   apparent   that   the   petitioner   changed   the::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                         12operating system thereafter and was using Windows XP SP-II on 




                                                                             
     12.04.2013   at   about   11.30   A.M.     It   is   specifically   urged   that 

     contention of the petitioner that on said date at about 12 Noon, 




                                                    
     the petitioner was using Windows XP  SP-III version is incorrect 

     and false.   It is further asserted that Mr. Rajiv Sharma or any 




                                                   
     other person did not communicate to the petitioner that time for 

     e-Reverse   auction   would   be   extended   up   to   3.00   P.M.     After 




                                       
                       
     getting   call   at   about   11.30   A.M.   on   said  date,   the   respondent 

     guided   the   petitioner   to   update   its   system   to   SP-III.     The 
                      
     updation requires minimum one to two hours.  The system was 

     updated at 2.17 P.M. and then the petitioner gave a call which 
      


     was picked up by Mr. Rajiv Sharma.  All browser settings of the 
   



     system   of   the   petitioner  was  then   done   but   in   the   meanwhile 

     time period expired and auction was closed.   Respondent No.3 





     sent e-mail accordingly to Respondent No. 1 and the petitioner 

     on   13.04.2013.     Respondent   No.   3,   therefore,   blames   the 





     petitioner in the matter.  It is also pointed out that a bidder with 

     valid   digital   certificate   could   only   participate   in   e-Reverse 

     auction and for that such bidder required valid digital signature::: Downloaded on - 27/08/2013 21:02:40 :::wp2272.13                                                                          13certificate.  The amount of Rs.5,620/- demanded by Respondent 




                                                                              
     No. 3 was for the optional services for ABC Procure registration 

     and   other   business   leads,   intimation   and   information   service.Two of the bidders did not pay these charges as they did not opt 

     for such other services offered by Respondent No. 3 - Company.10.           Shri   Parchure,   learned   counsel,   on   the   part   of 




                                        
                       
     intervenor   submitted   that   the   applicant,   though   a   necessary 

     party,   has   not   been   joined.     He   has   also   invited   attention   to 
                      
     business rules which regulated e-Reverse auction to submit that 

     the   respondents   have   already   warned   the   petitioner   that   they 
      


     shall not be responsible for unforeseen circumstances.   He has 
   



     also   pointed   out   that   clause   30   of   the   General   Terms   and 

     Conditions of contract dealing with settlement of disputes speaks 





     of Arbitration.  In this situation, according to him, the petition is 

     misconceived   and   grievance   needs   to   be   looked   into   by   sole 





     Arbitrator to be nominated by the General Manager (Marketing) 

     of the Company.::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                          1411.           Shri Parsodkar, learned counsel, in reply, emphasises 




                                                                              
     the   fact   that   though   Team   Viewer   log   file   could   have   been 

     produced by Respondent No. 3 to counter the assertions of the 




                                                      
     petitioner, that has not been done.12.             There   is   no   decision   by   the   Respondents   1   &   2 

     finalizing intervenor as a lowest bidder, in the interest of justice 




                                        
                       
     & as we have already heard Adv. Parchure, we allow the CA 1201 

     of 2013 and add said applicant as intervenor only.     This Court 
                      
     has to appreciate that the petitioner did file its counter affidavit 

     after   receipt   of   reply   of   Respondent   No.   3.     The   said   counter 
      


     affidavit denies the fact that on 11.04.2013, the petitioner could 
   



     log-in.   It   is   submitted   that   as   digital   signature   could   not   be 

     logged-in,   no   training   could   be   provided.     Attention   has   been 





     invited to e-mail sent on 11.04.2013 whereby the petitioner was 

     called   upon   to   update   to   Windows   XP   SP-III   version   and   said 





     updation was carried at 4.30 P.M. on said date. It is submitted 

     that digital signature was not provided even thereafter.  Story of 

     logging-in at 9.30 P.M. on 11.4.2013 or of a alleged phone call from  the::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                        15petitioner in this respect is stated to be false.   The contention 




                                                                            
     that Respondent No. 3 had done all configurations in the system 

     of   the   petitioner   and   hence   at   9.30   P.M.   on   11.04.2013,   the 




                                                    
     petitioner was able to see digital signature in the system is also 

     stated   to   be   totally   false.     Reference   is   given   to   telephone 




                                                   
     numbers and it is disclosed that the petitioner has accordingly 

     communicated   its   failure   to   log-in   on   those   numbers.     The 




                                       
                       
     updation   to   Windows   XP   SP-III   on   11.04.2013   is   recorded   in 

     Team Viewer software on the computer of the petitioner and its 
                      
     reiterated   that   on   11.04.2013   the   system   was   controlled   by 

     Respondent No. 3 and it revealed that upgraded version SP-III 
      


     was being used.  On 11.04.2013 in the midnight at about 12.50 
   



     i.e.   00.50   A.M.   on  12.04.2013,   the  petitioner  sent   a  e-mail  to 

     Rajiv Sharma to provide digital signature.  Rajiv Sharma in turn 





     forwarded the same to his subordinates through Ketan and Nitin 

     on 12.04.2013 in the morning.   We find that these e-mails are 





     also   annexed   along   with   the   petition.     If   the   petitioner   had 

     already   logged-in   and   digital   signature   was   already   provided, 

     there was no question of Rajiv Sharma forwarding said e-mail to::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                       16its subordinates on 12.04.2013.   The contention of Respondent 




                                                                           
     No. 3 that on 12.04.2013 the petitioner was using Windows XP 

     SP-II version is also not borne out from the record.  There is no 




                                                   
     explanation   as   to   why   the   petitioner   firm   already   having   a 

     contract for the year 2012-13 would revert back to SP-II after up-gradation to SP-III.13.
                      
                  The   assertions   of   the   petitioner   on   oath   about 

     importance of Team Viewer software are not denied by any of 
                     
     the respondents.  In fact, the same have not been dealt with by 

     them.  E-mail sent by Respondent No. 3 to Respondents No. 1 & 
      


     2   after   12.04.2013   are   of   no   use   in   this   background.     The 
   



     assertions   of   the   petitioner   in   the   counter   affidavit   dated 

     18.06.2013 are again not denied by any of the respondents.14.          Respondents No. 1 & 2 have no doubt outsourced the 





     conduct of e-Reverse auction to Respondent No. 3 but then all 

     acts and omissions of Respondent No. 3 in that capacity need to 

     be viewed in law as acts and omissions of Respondents No. 1 &::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                          172.     The   facts   clearly   establish   that   the   petitioner   could   not 




                                                                              
     participate in e-Reverse auction.15.           The respondents have stated that  disputed questions 

     of   fact   arise   because   determination   of   person   at   fault   is 




                                                     
     necessary.   Up-gradation of the petitioner's system to SP-III  on 

     11.04.2013   itself   is   not   in   dispute.     The   petitioner   has   relied 




                                        
                       
     upon log file of Team Viewer for dated 11.04.2013 to show that 

     it could not log in on that date.   Respondent No. 3 has relied 
                      
     upon   alleged   call   by   the   petitioner   to   Respondent   No.   3   on 

     11.04.2013   at   about   9.30   P.M.   in   which   according   to   said 
      


     respondents, the petitioner confirmed to Respondent No. 3 that 
   



     it   was   able   to   see   the   digital   signature   into   the   system.Respondent   No.   3   has   only   pleaded   that   its   representative 





     received   such   a   call   from   the   petitioner.     The   name   of   that 

     representative or then details of call are not mentioned.  On the 





     other hand in its submission Respondent No. 3 accepts that on 

     12.04.2013 the petitioner was unable to log-in.  They are making 

     efforts to blame the petitioner in this respect.  They have inferred::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                           18that   on   12.04.2013   at   about   11.30   A.M.,   the   petitioner   had 




                                                                               
     changed the operating system and was using old SP-II version.Respondent No. 3 being service provider selected by Respondents 




                                                       
     No.   1   &   2,   ought   to   have   maintained   necessary   records   to 

     substantiate all these contentions.   There is no justification for 




                                                      
     not maintaining Team Viewer log file by Respondent No. 3 for 

     business  transacted  on  11.04.2013  and  12.04.2013.  Mere  plea 




                                         
                        
     that other participants could log-in & hence, petitioner must be 

     presumed   to   be   at   fault,   is   not   sufficient   in   present   facts   to 
                       
     overlook omission of the Respondents to preserve vital records.Respondents No. 1 & 2 as also Respondent No. 3 are aware that 
      


     the tenders are technical matters which always form subject of 
   



     legal   challenges   and   hence,   should   have   also   foreseen 

     requirement of preserving the records.  Respondent No. 3 as also 





     Respondents No. 1 & 2 were aware of inability of the petitioner 

     to log-in on 12.04.2013 itself. They, therefore, were duty bound 





     to produce & ought to have preserved their team-viewer records 

     to falsify the petitioner & to establish its credentials.  The present 

     petition   has   been   filed   before   this   Court   on   22.04.2013   and::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                           19Respondents   No.   1   &   2   have   appeared   before   this   Court   on 




                                                                               
     26.04.2013.     In   this   situation,   inability   of   the   respondents   to 

     counter  assertions  of  the   petitioner   in   paras  12   and  13   of   his 




                                                       
     petition   and   omission   of   Respondent   No.   3   to   produce   the 

     records   of   Team   Viewer   log   file,   necessitates     drawing   of   an 




                                                      
     adverse inference against the said respondents.16.
                        
                   Clause 30 of the General Terms and Conditions of the 

     contract   speaks   of   all   disputes   and   questions,   claims,   rights, 
                       
     matters   or   things   whatsoever   in   any   way   arising   out   of   or 

     relating to the contract are to be referred to the Sole Arbitrator.Thus, said clause contemplates the disputes between the parties 
   



     to the contract and arising out of or relating to such contract.Here, dispute before us has arisen at a stage prior to entering of 





     the   contract.     Admittedly,   there   is   no   contract   between   the 

     petitioner and Respondents No. 1 & 2 for the year 2013-14 & as 





     such,   these   general   terms   and   conditions   of   contract   are   not 

     applicable and there is no question of the petitioner being asked 

     to   present   the   dispute   of   this   nature   to   Sole   Arbitrator   to   be::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                          20nominated by the General Manager (Marketing ) of Respondents 




                                                                              
     No. 1 & 2.17.           Part   B   of   clause   42   prescribes  business   rules   for   e-Reverse   auction.     As   per   said   sub-clause   (1),   inter-net 




                                                     
     connectivity and other paraphernalia requirements shall have to 

     be ensured by the tenderers themselves.   In order to ward off 




                                        
                       
     such   contingent   situation   like   inter-net   connectivity   failure, 

     power   failure   etc.,   tenderers   have   been   called   upon   to   make 
                      
     necessary alternate arrangements.  Said clause also declares that 

     Respondents No. 1 & 2 or Respondent No. 3 - Service Provider is 
      


     not responsible for these unforeseen circumstances.18.           Inability   to   log-in   cannot   be   viewed   as   such 

     unforeseen circumstances.  It is no doubt true that the replies  on 





     record disclose offer made by Respondent No. 3 twice to train 

     the petitioner but then that by itself is not sufficient to find the 





     petitioner at fault in the matter.   Had respondent No. 3 shown 

     that   the   petitioner   was   successful   in   logging-in   by   using   the 

     digital   signature   certificate,   the   situation   would   have   been::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                          21otherwise.     We,   therefore,   find  that   at   least   on   this   count,   no 




                                                                              
     disputed questions of fact can be said to arise.19.           The petitioner has received copy of Civil Application 

     No. 1201 of 2013 on 06.05.2013.  That application is moved by 




                                                     
     Tirath singh Awtar Singh Bhatiya underOrder 1, Rule 10 of the 

     Code   of   Civil   Procedure,   pointing   out   that   after   e-Reverse 




                                        
                        
     auction,   he   has   emerged   as   lowest   tenderer.     This   fact   is   not 

     denied by the petitioner.   The petitioner thereafter has filed its 
                       
     counter   affidavit   on   07.05.2013.     In   affidavit   filed   on 

     07.05.2013, the petitioner stated that though Window XP SP-III 
      


     Version was installed, digital signature was not provided.   They 
   



     have   stated   that   in   the   night   between   11.04.2013   and 

     12.04.2013,   the   petitioner   sent   a   e-mail   to   Rajiv   Sharma 





     complaining  about   digital  signature   and  said  Rajiv  Sharma,   in 

     turn, forwarded it to Ketan and Nitin on 12.04.2013.  Annexure 





     A-1 placed before the Court by intervenor shows e-mail by Nitin 

     Patel on behalf of Respondent No. 3 which contains a statement 

     that   at   9.30   P.M.   his   colleague   Raju   Sharma   had   successfully::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                           22installed digital certificate and logged in successfully also. This 




                                                                               
     shows   two   mutually   inconsistent   stories   being   put   forth   by 

     Respondent   3   itself.     The   last   counter   affidavit   is   filed   by   the 




                                                       
     petitioner on 18.06.2013 but then the petitioner has not taken 

     any   steps   to   join   the   lowest   tenderer   (intervenor)   as   party 




                                                      
     respondent.20.
                        
                    Shri Parchure, learned counsel, appearing for the said 

     lowest tenderer has made a grievance that though the petitioner 
                       
     was   aware   of   this   fact,   he   deliberately   avoided   to   join   a 

     necessary   party.    There   is   no   reply   to   this   argument   by   the 
      


     petitioner.   But   then   Respondent   1   &   2   have   not   taken   any 
   



     decision either to issue or have not   issued any work-order to 

     intervenor & thus no legal right has accrued to said intervenor.Moreover, we have also heard his Counsel on his defence and 

     considered   it.   His   defence,   in   any   case,   can   not   exceed   the 





     defences available to the Respondents.    In this background, we 

     also   note   that   Respondents   No.   1   &   2   have   also   a   right   to 

     conduct   negotiation,   if   required,   with   lowest   bidder   after   e-::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                           23auction event.   This option is reserved by them vide sub-clause 




                                                                               
     17   of   clause   4   prescribing   procedure   for   e-Reverse   auction 

     contained   in   Part   B   dealing   with   business   rules   for   e-Reverse 




                                                       
     auction.21.           It is equally important to note that transparency  and 

     for   that   purpose,   retaining   all   records   to   permit   critical 




                                         
                        
     appreciation   of   entire   process   was   /   is   a   vital   ingredient.Petitioner   has   been   denied   a   level   playing   field   by   the 
                       
     Respondents 1 to 3. They have not allowed judicial review of the 

     conduct of E reverse auction. The auction as held, therefore, can 
      


     not be said to be conducted to further public interest.      In this 
   



     situation,   we   find   that   interest   of   justice   can   be   met   with   by 

     continuing the interim order already passed on 10.05.2013 and 





     by directing Respondents No. 1 & 2 to hold negotiations with the 

     petitioner   and   intervenor   before   taking   any   decision   on   the 





     question of issuance of work order, as we do not find any fault 

     on the part of the said intervenor in the matter.::: Downloaded on - 27/08/2013 21:02:41 :::wp2272.13                                                                          2422.           Accordingly, we direct Respondents No. 1 & 2 to hold 




                                                                              
     negotiations to find out lowest bidder between present petitioner 

     and Tirath Singh Awtar Singh Bhatiya.  The negotiations should 




                                                      
     be completed within a period of two weeks from today and the 

     person   emerging   successful   may   be   issued   work   order   by 




                                                     
     Respondents No. 1 & 2 in accordance with law for the year 2013-

     14   as   per   their   tender   invitation.     Till   such   person   gets   work 




                                        
                        
     order and starts functioning, interim order passed by this Court 

     on 10th May 2013 shall continue.23.           Writ   Petition   is   thus   partly   allowed.     Rule   is   made 
      


     absolute   in   above   terms.     However,   in   the   facts   and 
   



     circumstances of the case, there shall be no order as to costs.JUDGE                                        JUDGE





                                       *******

     *GS.::: Downloaded on - 27/08/2013 21:02:41 :::