TERA SOFTWARE LIMITED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner had initially filed this writ petition seeking for mandamus to restrain the third respondent from awarding the contract to the fourth respondent and to award the same to the petitioner. The petitioner has thereafter sought for quashing the order dated 20.09.2013 (Annexure -T) whereby the objections raised by the petitioner was rejected and the bid of the fourth respondent herein was accepted and declared as the lowest bidder (L -1). The third respondent called for tender by notification dated 10.12.2012 through e -procurement portal to procure, install and maintain the new hardware and develop new software called 'New Kaveri'. The process was of three cover tender viz., pre -qualification, technical and commercial. The last date for submission as per corrigendum was fixed as 31.01.2013. Six bidders had responded which included the petitioner and the fourth respondent herein and all of them have pre -qualified. On technical presentation, the Technical Scrutiny Committee (TSC) held its meeting on 12.03.2013 and 13.03.2013. Among the bidders, five had technically qualified. The commercial bid of the five technically qualified bidders were opened on 13.03.2013 and notified in the e -procurement portal. The petitioner had quoted Rs. 165,20,43,838/ -, while the fourth respondent had quoted Rs. 147,91,39,727/ - and the others had quoted more than what the petitioner had quoted. Thus the fourth respondent was classified as L -1 and petitioner as L -2 tenders respectively. The petitioner was however aggrieved that the fourth respondent was treated as L -1 and as such filed their objection with the third respondent on 15.03.2013. The petitioner has immediately filed this writ petition on 18.03.2013 and this Court by order dated 19.03.2013 had initially restrained the third respondent from issuing the work order to fourth respondent.

(2.) THE respondents had thereafter appeared, filed objection statement and application for vacating stay. By order dated 10.04.2013, this Court vacated the stay and on taking note of the fact that Tender Accepting Authority ('TAA' for short) i.e., the first respondent had not taken a decision, had indicated that the first respondent will independently examine the matter and while doing so, the objection raised by the petitioner will also be considered. Subsequent thereto, the objections raised by the petitioner was also noticed and the impugned order dated 20.09.2013 (Annexure -T) is passed by the TAA. The petitioner however being aggrieved by the same has assailed the said order also by amending the petition. Respondents No. 1 to 3 and respondent No. 4 have filed their separate detailed objection statement justifying their action.

(3.) AT the outset, it is to be noticed that the contention on behalf of the petitioners relating to the fourth respondent having not disclosed that they were blacklisted by the Commercial Tax Department in the State of Rajasthan and that the fourth respondent had not quoted for toners and consumables and as such their bid should have been rejected had been urged by the petitioner while seeking consideration of I.A. No. 4/2013 for stay of the impugned order dated 20.09.2013. This Court by a detailed order dated 11.10.2013 had not accepted the contention at that stage. The learned senior counsel for the fourth respondent on referring to the said order has contended that the same would act as res -judicata and the petition is liable to be dismissed. The decision in the case of Dattatraya vs. Srinivasa Bhat Thammanna ( : ILR 1985 KAR 1946) and in the case of U.P. State Road Transport Corporation vs. State of U.P. and Another : (2005) 1 SCC 444) wherein it is held that res -judicata applies on the findings between two stages in the same litigation and will not allow the parties to re -agitate the matter again at a subsequent stage is relied on. Having considered the same, though there can be no doubt with regard to the legal position enunciated, in the instant facts, it is to be noticed that a prima facie view was taken in the background of principle of law relating to grant or refusal of interim order. Even otherwise, it has been clarified by the order dated 11.10.2013 that the further proceedings will remain subject to result of the writ petition which was for the purpose of adverting to the contentions in detail. Hence, the said contention on behalf of the respondents is not acceptable and the principle of res -judicata cannot be applied in the present circumstance. The matter therefore is required to be adverted further.