COMMISSIONER DIRECTORATE OF LOGISTICS Vs M/S ALMIGHTY TECHSERV
Judgment by: HON'BLE MR. JUSTICE DEEPAK GUPTA
Case number: SLP(C) No.-005472 / 2020
Diary number: 1321 / 2020
Advocates: B. KRISHNA PRASAD Vs
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020 (@SPECIAL LEAVE PETITION (C) DIARY NO. 1321 OF 2020)
Commissioner, Directorate of Logistics …Petitioner(s)
M/s. Almighty Techserv, Proprietor Mr. Manish Dalmia & Anr. …Respondents(s)
O R D E R
Deepak Gupta, J.
2. The Central Board of Excise and Customs (CBEC), through
the Directorate of Logistics floated an etender for supply,
installation and maintenance of 74 videoscopes at various field
formations of CBEC. Various bids were received. The tender was
awarded in favour of M/s. ASVA Power Systems India Pvt. Ltd.
The award of this tender was challenged by the unsuccessful
bidder M/s. Almighty Techserv on various counts. The High
Court vide impugned judgment has held that the award of tender
in favour of M/s. ASVA Power Systems India Pvt. Ltd. is illegal
and according to the calculation of the High Court, the tender of
the writ petitioner should have been treated as the lowest tender
and the loss caused to the Government is roughly about 63
lakhs. The order of the High Court has been challenged by the
Department as well as by M/s. ASVA Power Systems India Pvt.
3. At this stage, we are only dealing with the issue of interim
relief. Mr. Aman Lekhi, learned Additional Solicitor General
appearing for the Department urges that 74 videoscopes are
urgently required by the Department. He submits that the
judgment of the High Court is wholly incorrect. He also submits
that since these equipments are urgently required by the
Department and have already been imported into India and are
ready for installation, the order of the High Court be stayed.
4. Shri K.V. Viswanathan, learned senior counsel appearing for
M/s. ASVA Power Systems India Pvt. Ltd. has not only
supported the arguments of Mr. Lekhi, but has also highlighted
the fact that the tender of his client was the lowest tender since it
was inclusive of all customs charges and that the High Court
erred in holding that the landing charges could not have been
added to the bid price of M/s. Almighty Techserv.
5. On the other hand, Mr. Gopal Sankaranarayanan, learned
senior counsel submits that the judgment of the High Court is
absolutely correct. There is no error in the same. He also
submits that the successful bidder has made various false
statements in the High Court from time to time and therefore, is
not entitled to any discretionary relief.
6. At this stage, we are not going into the merits of the case
which will require detailed hearing. We, however, cannot lose
sight of the fact that the tender in question was floated in the
year 2018. The High Court has cancelled the tender and ordered
retender. The tender has not been awarded in favour of M/s.
Almighty Techserv. Fresh tendering may lead to long delay in
procuring all these videoscopes which are urgently required by
customs authority to scan the imported goods. If a fresh tender
for supply of videoscopes is floated we are not even sure whether
the Government will gain or lose in monetary terms. In our view,
public interest requires that the Government be permitted to
procure the videoscopes from M/s. ASVA Power Systems India
Pvt. Ltd. and we permit the Department to do so. However, we
direct that out of the payment to be made to M/s. ASVA Power
Systems India Pvt. Ltd., a sum of Rs.63 lakhs shall be deducted
and orders with regard to that amount shall be passed after
hearing the parties in detail at the time of final hearing. In case
M/s. ASVA Power Systems India Pvt. Ltd., insists on full payment
at this stage then there shall be no interim stay and the
Department will have to float fresh tender.
7. The interim relief is granted in the aforesaid terms.
…………………………….J. (Deepak Gupta)
……………………………..J. (Aniruddha Bose)
New Delhi February 28, 2020