BINFO ELECTRONICS Vs. BHARAT SANCHAR NIGAM LTD

JUDGEMENT

(1.) SUBJECT matter of this writ petitioner is the correctness or otherwise of enforcement of a performance guarantee dated 18. 12. 1998 for a sum of Rs. 10,98,400/- furnished at the instance of the petitioner company by the second respondent at the instance of the petitioner company by the second respondent State Bank of India and in favour of the Director (MMT), Department of Telecommunications , Sanchar Bhavan, 20, Ashoka Road, New Delhi 110 001 now known as Bharat Sanchar Nigam Limited (BSNL for short), a company fully owned by the Government of India.

(2.) IN fact, developments leading to the present petition and the tender inviting offers from aspiring persons for supply of what is known as 10 Channel Digital UHF System were as per a publication by the Government of India, Ministry of Communication. Telecom Commission, Department of Telecommunications, MMT Section, 20, Ashoka Road, Snachar Bhavan, New Delhi, which was first issued in Tender No. MM/rn/121997/000127 issued on 26. 3. 1998. At that time, the first respondent BSNL had not been constituted, whereby the Government of India handed over some of its functions in favour of this BSNL and the tenders called for as per this tender issued on 26. 3. 1998 (copy at Annexure-A) were being continued and pursued by the first respondent BSNL and that is how they figure as the first respondent in this writ petition.

(3.) PETITIONER was one of the tenders offering its quotation indicating the price for the equipment to be supplied. The tender conditions interalia indicated that the equipment was required to be got tested for its quality and performance by a duly approved agency of the first respondent and that such testing also was required to be completed within a period of four months. All these conditions are mentioned in the tender documents. It may not be necessary for the purpose of this writ petition to go into great details of these conditions, inasmuch as having regard to the developments, it is not in dispute that the petitioner had not been required or called upon to supply the equipment by placing a purchase order on the petitioner and in fact, on the other hand, it is now on record that as per a policy decision taken at the level of the government and as indicated in a communication dated 5. 5. 1999 originating from the Assistant Director General (MT) (Copy at Annexure-P), the system will not be procured any more as a mater of policy. But this was contained in a specific communication dated 12. 5. 1999 from one Mr. M. F. Ansari, Director (GP) of Dept. of Telecommunications, Sanchar Bhawan, New Delhi, addressed to Sri. G. S. Raju, Deputy Director General (SR), Telecommunications Engineering Centre, South Region, Vishwas Bhavan, Bangalore-560 051, in the context of the Field Trial of the equipment offered by the petitioner and whereby it was advised to abandon such field testing of the equipment offered by the petitioner. This particular communication is of significance as it will have bearing on the decision of the first respondent in enforcing the performance guarantee that had been furnished at the instance of the petitioner for due performance of the equipment that should have been supplied by the petitioner if a purchase order should have been placed on the petitioner.