KAMAL BUILDERS Vs. SARDAR SAROVAR NARMADA NIGAM LTD

JUDGEMENT

(1.) WE have heard Ld. Counsel Mr. M R Bhatt, assisted by Ms. Mona Bhatt for the petitioner and Mr. Nirjar Desai, Ld. Counsel appearing for the respondents.

(2.) THE respondent no. 1 issued an advertisement in May 2011 inviting tenders for constructing Distributories and Minor work for command area under Dhrangadhra Branch Canal ch. 98.267 to 124.983 Km., and other work was for construction of distributories and minor work of command area under Dhrangadhra Branch Canal ch. 74.3 to 98.267 Km. The prospective tenderers were also supposed to apply by e.tender. The section-1 of the tender documents provides for 'Information and Instructions'. Para. 2 is with regard to 'Invitation', which is extracted below :

(3.) LD . Counsel for the petitioner urged that once his tender was not opened by the respondents on the ground that the petitioner was not eligible for grant of tender as he was not registered contractor prior to submission of the tender, in such a situation, the BG furnished by the petitioner ought to have been returned back by the respondent no. 1. On the other hand, Ld. Counsel for the respondents has urged that in view of para. 2 of the Information and Instructions in the heading 'Invitation', it has been clearly provided for forfeiture of BG in terms of para. 2 [C] of the tender documents under the heading 'Invitation'. It is further urged that since the petitioner had applied for registration as Class "AA" contractor with the respondent no. 1 after submission of the tender as provided in para. 2 [D], the respondents were justified in forfeiting EMD deposited by the petitioner in terms of para. 2 [E] of the tender documents, which clearly provides that if the party fails to take action as specified in para. 2 [B] or [C] or [D], the contractor shall be disqualified and his EMD shall be forfeited.