HFCL LIMITED Vs. TELECOMMUNICATIONS CONSULTANTS INDIA LTD.

JUDGEMENT

(1.) The petition has been filed under Sec. 9 of the Arbitration and Conciliation Act, 1966, inter alia seeking an ex-parte ad interim stay on tenders dated May 10, 2022, bearing nos. TCIL Tender No. - TCIL/4110008/I/22-DEF/01E, TCIL Tender No.- TCIL/41/0009/I/22-DEF/02E, TCIL Tender No.- TCIL/41/0010/I/22-DEF/03E, Tender No. - TCIL/4110011/I/22-DEF/04E, all for the state of Uttar Pradesh, as the scope of work of the impugned tenders is already within the scope of work to be performed by the petitioner under the BSNL Tender dated June 21, 2013 and Memorandum of Understanding ("MOU", for short) dated January 30, 2014 between Telecommunications Consultants India Ltd. ("TCIL" and the respondent herein) and Himachal Futuristic Communications Ltd. (HFCL Ltd." and the petitioner herein) dated January 30, 2014 read with first addendum dated September 18, 2014, BSNL Purchase Order ("PO", for short) No. CT/P0/04/2014-15 dated September 09, 2014 ("BSNL PO"), TCIL PO No. TCIL/15/1612/1114 MM/58P dated September 19, 2014 along with its all amendments and TCIL PO No. TCIL/16/1611/I/14- MM/57P dated September 19, 2014.

(2.) It is the case of the petitioner and so contended by Mr. Bishwajit Bhattacharya, Ld. Sr. Counsel that BSNL published a tender bearing Tender No.-CA/CNP/NFS OFC/T- 44112013 on June 21, 2013 for procurement, supply, trenching, laying, installation, testing and maintenance of Optical Fibre Cable, PLB Duct and accessories for construction of exclusive optical NLD backbone and Optical Access Routes on Turnkey Basis For Defence Networks. A bidder could bid for one or more packages wherein each package comprises of different sets of States/UT's. The petitioner and respondent herein bid for "Package C", comprising of Uttar Pradesh, Rajasthan and Uttarakhand. They entered into a "Teaming Agreement" dated August 19, 2013, to submit a bid for Package C of the BSNL Tender. According to him, the said Teaming Agreement contained an exclusivity clause being Clause 2, which barred either party from entering into any agreement of similar nature with any third party for the bid package.

(3.) The petitioner and respondent entered into an MOU dated January 30, 2014 (as amended vide the first amendment dated September 18, 2014), for the purpose of bidding for the BSNL tender and to put down the terms of their relationship. The MOU delineated individual scope of work of both the parties and chalked out the responsibilities in their scope of work. Specifically, Clause 7.4 of the MOU states as under:-