UTTAM KUMAR BOSH Vs. UNION OF INDIA

JUDGEMENT

(1.) On the basis of recommendations of a Committee constituted by the Chairman and Managing Director of Indian Airlines respondent No.2, decided to sell five aircraft (VT-EAI. VT-ECP, VT-ECS, VT-EDR and VT-EDS) for which purpose in February/March, 1995 an advertisement was inserted in international and Indian newspapers. Offers were received from four parties. The total sum of offers for the five aircraft was around Rs.7.8 crores which was on an average of Rs.1.36 crores per aircraft. Since the offers received were too low, respondent No.2, on 14th August, 1995 issued limited tender (annexure P-1)to65 parties in India and abroad calling upon them to submit their offers latest by 24th August. 1995. In response five parties submitted their offers, two of whom were Indian and remaining three were international parties. Indian parties being Sahara India Airlines (Petitioner No.2) and M/s Blue Dart Express (P) Ltd. (respondent No.5) (hereinafter referred to as 'the Sahara' and 'the Blue Dart' respectively).

(2.) The highest offer for five aircraft as a package was received from an international party, namely, M/s Solair, Singapore for Rs.23.62 crores but this offer made was without the requisite deposit of earnest money and was not considered. M/s Blue Dart submitted the highest offer of Rs. 12.40 crores for the two aircraft (VT- EDR and VT-EDS). The petitioner. Sahara, gave an offer of Rs.9.25 crores as a package for five aircraft. After analysing the offers the Committee decided to hold discussions with the petitioner and respondent No.5. On 28th May, 1995 both the petitioner and respondent No.5 were advised to submit their best offers by 6th September, 1995. Likewise the three foreign parties were also asked to give their best offers. All five parties responded. Their-offers were opened on 6.9.1995. Petitioner's highest offer as a package for all five aircraft was for Rs.19 crores as against Rs.9.61 crores and Rs.7.71 crores by the two foreign parties. Respondent No.5 quoted for only two aircraft at Rs. 13.00 crores. The Committee discussed the offers with the petitioner on 7.9.1995 and efforts were made to make the petitioner drop his condition of purchasing the aircraft as a package. Petitioner did not agree. Offer of petitioner thereafter was negotiated. The petitioner agreed to revise its offer for ive aircraft from Rs.19.00 crores to Rs.20.5 crores. Memorandum of Understanding (Annexure 111) was thereafter entered into with petitioner No.2 on 7.9.1995. As per the memorandum of understanding sale of the five aircraft to the petitioner was to be subject to the approval of the Board of respondent No.2 and the Government. Memorandum of understanding (for short MoU) further clarifies that in case approval is not received by 30.9.1995, extendible by mutual consent to 10.10.1995, the deposit of Rs.95 lakhs made by the petitioner with respondent No.2 as well as the bank guarantee furnished as per the MoU will be released to the petitioner without any further liability on respondent No.2. These facts are not in dispute.

(3.) it is the petitioner's case that on 30.9.1995 when the petitioner requested through its letter to advise the exact date of delivery and payment for the five aircraft, the petitioner for the first time learnt that not only the Memorandum of Understanding with petitioner has been rejected but respondent No.2 was also in the process of delivering the two aircraft to respondent No.5. Petitioner's grievance is that the Board of Directors in its meeting held on 29.9.1995 have taken a decision to reject the petitioner's offer and to accept the offer of respondent No.5 for the two aircraft. This action of respondent No.2 is under challenge by the petitioner in this writ petition filed under Article 226 of the Constitution of India.