Emkay Medicare Services vs The President, Rajasthan Medicare Relief Society

Both these appeals arise out of the common judgment dated

11.09.2014, therefore, they are being decided by this common

judgment. Learned lower appellate Court has also decided the

first Appeal No.11/2011 and 12/2011 by common judgment dated

11.09.2014 arising out of the judgment and decree dated

19.10.2010 passed by Civil Judge (JD), Bikaner.

For convenience, facts of SB Civil Second Appeal

No.221/2014 are taken into consideration.

Appellant M/s Emkay Medicare Service filed a suit for

permanent and mandatory injunction against defendants, which

was decreed vide judgment dated 19.10.2010 by learned Civil

Judge (JD), Bikaner. Two appeals were preferred against the said

judgment; one was filed by defendant No.4 M/s. Ganpati

Diagnostic Centre (Civil First Appeal No.11/2011) and another was

preferred by Chairman, Rajasthan Medicare Relief Society, PBM

Hospital, Bikaner (in short, "RMRS") & others (Civil First appeal

No.12/2011). Learned lower appellate Court allowed both the

appeals and quashed and set aside the judgment and decree

dated 19.10.2010 passed by learned trial Court vide judgment

dated 11.09.2014. Plaintiff-appellant Emkey Medicare Services

has preferred both these appeals against this judgment dated

11.09.2014.

Brief facts giving rise to these appeals are that a suit for

mandatory and permanent injunction was filed by the

appellant/plaintiff before the Court of Civil Judge (Junior Division),

Bikaner contending interalia that the respondent/defendant No.3

had invited tenders vide Notice Inviting Tender (NIT) dated

29.02.2008 for installing machines to conduct MRI and CT Scan

Tests. Thereafter, amended tender notice was issued on

20.04.2008. As per the tender notice dated 29.02.2008, the

interested firms were required to submit the rates of

investigations in sealed envelopes as per the terms and conditions

given in the prescribed tender forms issued by the Hospital. By amended tender notice dated 24.04.2008, dates for submissions

of tenders were extended and some changes were also made in

the terms and conditions/ specifications. In the tender

proceedings, one M/s. Indiana Nuclear Med Center also submitted

its tender which was conditional and, therefore, the same could

not have been considered. The respondent no.1/defendant no.4

M/s. Ganpati Diagnostic Center also submitted its tender which

was not in the form issued by Member Secretary, RMRS, PBM

Hospital, Bikaner and it was simply on a paper typed from

computer and the same could not have been considered. M/s.

Ganpati Diagnostic Center was called for negotiation and counter

offer was given to it which was accepted. It was submitted that

the tender of appellant/ plaintiff was lowest on account of non

acceptability of tenders of M/s. Indiana Nuclear Med Center and

M/s. Ganpati Diagnostic Center and therefore, the

appellant/plaintiff was entitled for permanent and mandatory

injunction directing the respondents to accept the bid submitted

by plaintiff and to issue him the work order and also restraining

them from issuing the work order to any other firm.

Written statement was filed on behalf of the

respondent/defendants No. 1 to 3 mentioning therein that the suit

was premature. Objections with regard to Court fees was also

taken and in additional submissions, the details with regard to

tender process were mentioned. It was submitted that tenders

were invited for installing MRI and CT Scan Machines in Govt. PBM

Hospital, Bikaner on the basis of Public Private Participation. The

tenders were invited for a period of 10 years. Five applicants

namely Emkay Medicare, Indiana Nuclear Med Center, Ganpati

Diagnostic Center, Shubham Diagnostic Center, Sanya Hospital &

Diagnostic Center submitted tenders. The tenderer were required

to submit technical and financial bids and details of rates was to

be given in financial bids only. The tenders of all the five

applicants were found valid in the technical bid and, therefore,

financial bids were opened by the committee of the Rajasthan

Medicare Relief Society (RMRS). However, by order of State

Government dated 20.06.2008, a new Committee was constituted

under Chairmanship of District Collector, Bikaner which was

authorised to take final decision. On 22.06.2008, it was decided

by the said Committee that except M/s. Ganpati Diagnostic Center,

other tenders were having higher rates. It was further mentioned

that on 24th June, 2008, M/s. Ganpati Diagnostic Center was called

for negotiation and thereafter a counter offer was given to it which

was accepted by M/s. Ganpati Diagnostic Center. Thereafter, M/s.

Ganpati Diagnostic Center was declared successful bidder and the

decision was communicated to the Secretariat, Jaipur on

27.08.2008.

M/s. Ganpati Diagnostic Center submitted an application

under Order 1 Rule 10 for impleading itself as party defendant in

the suit proceedings. The said application was allowed.

Written statement was also filed by M/s. Ganpati Diagnostic

Center denying the facts mentioned in the plaint. It was further

contended therein that the tender was submitted by it on

10.04.2008 and it was on authorized tender form and as per

terms and conditions prescribed by defendant no. 1 to 3, the

defendant no. 4 was not required to submit the bid again in

prescribed format by depositing fees in reference to the amended

notice. He submitted the tender bid again on 16.05.2008 in the

exact computerized copy of the tender forms issued by RMRS,

within the prescribed time. Therefore, the revised bid submitted

by defendant no. 4 on 16.05.2008 cannot be said to be

unauthorized.

Learned trial Court framed as many as nine issues on

06.03.2010 including relief clause. Plaintiff filed an application on

12.3.2010 stating that he does not want to produce any evidence

while reserving right of rebuttal. Trial Court passed an order

directing the defendants to produce the original documents for the

purpose of admission and denial. Original documents were

produced, which were admitted by learned counsel appearing for

defendant No.4 on 6.7.2010. DW-1 Dr. Parmendra Sirohi and DW-

2 Dr. Sunder Lal Surana were examined on behalf of defendants.

No witness was examined by the plaintiff in his rebuttal evidence.

After affording an opportunity of hearing to both the sides, learned

trial Court proceeded to decide the suit as mentioned above. Two

separate appeals preferred against the judgment and decree were

allowed while reversing it.

These two civil second appeals have been preferred on

behalf of the appellant, which were admitted by this Court on

11.11.2014 and following substantial question of law were

framed :-

"(i) Whether in the facts and circumstances of the present case, the first appellate court was justified in coming to the conclusion that as the plaintiff did not lead oral evidence, it has failed to discharge its burden on various issues, despite availability of admitted documents on record "

(ii) Whether the first appellate court was justified in coming to the conclusion that the tender submitted by defendant No.4 was valid ?

(iii) Whether in the facts and circumstances of the case, the suit filed by the appellant can be termed as premature ?

(iv) Whether in the facts and circumstances of the case, the first appellate court was justified in coming to the conclusion that plaintiff was not granted leave under Section 80 (2) CPC ?"

During arguments advanced by learned counsel for the

appellant, submission has been made that the tender forms

submitted by defendant No.4 - M/s Ganpati Diagnostic Center

were not on the formats prescribed and issued by the President,

RMRS. Tender forms were not signed by the proprietor of

defendant No.4 but only initials were affixed thereon. It has also

been submitted that the notice inviting tender was issued by

RMRS, which is a registered society and there was no role of the

Government of Rajasthan in the tender process but with the

intention to extend undue advantage to defendant No.4, a

committee under the Chairmanship of District Collector, Bikaner

was constituted to finalize the tender process on the basis of

political intervention and malice. After holding an unauthorized

and unwarranted meeting of the committee, recommendation was

made to the State Government for approval of the defendant No.4

as lowest bidder and to finalize the tender in his favor. All the

proceedings undertaken by the said committee in regard to the

tender process were without any authority and to extend undue

benefit to the defendant No.4. While duly appreciating the

evidence, learned trial Court passed the judgment and decree in

favor of plaintiff, which was quashed and set aside by learned

lower appellate Court without any basis and without taking the

relevant facts and evidence into consideration. In support of the

contentions raised, learned counsel for the appellant has placed

reliance on number of judicial authorities.

Per contra, learned counsel appearing for respondents No.1

to 3 has stated that all the proceedings in regard to the

finalization of the tender was done with the object to extend the

benefit to general masses of the medical investigation like MRI

and CT Scan test on the cheapest rates. There was no malafide or intention to give any undue advantage to any of the bidders. It

has been stated that office bearers including President of RMRS

are the State Government officers and ex-officio members of the

Rajasthan Medicare Relief Society. Thus, it was well within domain

of the State Government to supervise and exercise its control over

the whole tender process. No fault can be found with the

constitution of the committee headed by District Collector, Bikaner.

The allegations made in this regard are baseless. Thus, the

appeals are liable to be dismissed.

Learned counsel appearing for the respondent No.4 has

contended inter alia, that the suit was filed by power of attorney

holder Shri Shiv Shankar Bohra on behalf of plaintiff without

making any mention of this fact in the suit. The power of attorney

executed in his favour by the plaintiff was also not proved. There

is no signature of the power of attorney holder on the said power

of attorney. In such circumstances, the suit filed without any

authority was liable to be dismissed on this count alone.

Observation in this regard has been rightly made by lower

appellate Court in its judgment. It has also been contended that

the tender forms initially submitted by defendant No.4 were on

the prescribed forms issued by RMRS, which were deposited on

10.4.2008. Butt when an amended NIT was issued on 24.4.2008

by RMRS extending the time and calling upon the bidders to

submit their revised bids, the tender forms were again submitted

by defendant No.4 which were on the computerized copy of the

tender forms printed in exactly the same manner in which the

tender forms were issued. The said tender forms were initialed by

the proprietor of the defendant No.4, hence, the objections raised

in this regard on behalf of appellant are baseless. It has further

been contended that only the financial bid was submitted in the

exactly same copy of the tender forms printed by computer and

the technical bid was on the forms issued by RMRS. Column No.6

of the financial bid (Annex.VI) was not having sufficient space to

mention the rates of six different tests that is why addition was

made in the format which cannot be held objectionable. It has

also been argued that plaintiff himself and other tenderers also

mentioned these rates by making addition in the prescribed

format for which also no objection was raised by the committee.

Equal treatment was meted out to all the bidders in this regard,

hence, it cannot be said that any favourble treatment was

extended to defendant No.4 only. Supporting the arguments

advanced on behalf of respondent No.1 to 3, it has also been

contended by learned counsel for respondent No.4 that there was

nothing objectionable to form a committee headed by District

Collector, Bikaner and comprising of some medical experts and

Treasury Officer, Bikaner to evaluate the rates given by the

tenderers and supervise the tender process. President of RMRS is

also Superintendent of PBM Hospital, Bikaner, which is a

Government officer and other members of the society (RMRS) are

also the Government officers. Thus, the Government had every

authority to supervise the tender process. Further, it was

contended that as per the evaluation made by the Committee,

defendant No.4 was the lowest bidder having score of 1771.60

whereas plaintiff appellant was having the score of 2036.42.

Thus, defendant No.4 was recommended by the Committee being

the lowest bidder (L-1) to ensure that facilities for certain

diagnostic tests are made available to the public at large at lowest

rates. Thus, he submitted that the appeals do not deserve to be

allowed and may be dismissed.

I have given my thoughtful consideration to the arguments

advanced on behalf of the respective parties.

I may mention here that learned counsel for the appellant

has referred to various judgments (48 in numbers) on various

aspects of this case. Learned counsel for the respondent No.4 has

also placed reliance on 22 judicial pronouncements in the

submissions made in reply. Pains taking efforts put in by both

learned Senior Advocates are worth appreciation. When there is

an ambiguity in the legal proposition about any aspect, the judicial

pronouncements are always required to be taken into

consideration and prove helpful to form the view. But if the

factual aspect is explicitly clear as per the ocular and documentary

evidence, the provisions of law are directly applicable in the facts

and circumstances of the case and the legal proposition is well

settled and crystallized, then, to my view making extra efforts in

referring multiple authorities on such aspects can only be an

extravagance. It consumes the time and energy of the Courts

and members of the Bar as well. When courts at all levels, more

particularly the trial Courts, are clogged with arrears of cases and

huge pendency, the time and energy can be invested more

usefully in taking up more number of cases for hearing and

disposing them. This may give more relief to the litigants waiting

for their turn to come for disposal of pending cases. With this

view, I feel inclined not to encumber this judgment with multiple

reference of judicial pronouncement on the same point. But of

course, it will be enlightening for me to take help of the relevant

and most suitably applicable citations, wherever need arises to do

so.

Since, these are civil second appeals, their hearing is

required to be governed as per the provisions contained in Section

100 and Order 42 CPC. Sub-section (5) of Section 100 CPC is

reproduced below :-

"The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not inolve such question.

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

Similarly Rule 2 of Order 42 CPC is also required to be taken

into consideration, which is as follows :-

"Power of Court to direct that the appeal be heard on the question formulated by it. - At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100."

Both the provisions reiterated above restrict the scope of the

hearing of second appeal on the substantial question of law

formulated by the Court while admitting the appeal. As per

Section 100 (5) CPC, it is however left at the discretion of the

Court, for the reasons to be recorded, to hear the appeal on any

other substantial question of law not formulated by it, if it is

satisfied that the case involves such question. Rule 2 of Order 42

CPC also speaks that it shall not be open to the appellant to urge

any other grounds without leave of the Court. In light of these

provisions, I find myself under legal obligation to restrict the scope

of discussion in regard to these appeals, to the substantial

questions of law mentioned hereinabove.

On perusal of the record, it appears that the objection raised

by learned counsel for respondent No.4 regarding suit having been

filed by power of attorney of the plaintiff without any mention of

this fact in the plaint as also the objection that the power of

attorney has not been signed by its holder was never raised earlier

before learned trial Court or first appellate Court. It has been laid

down by Hon''ble Supreme Court in Santosh Hazari Vs.

Purshottam Tiwari (Deceased) by LRs, reported in 2001 (3)

SCC 179 that entirely new point raised for the first time before

the High Court is not a substantial question involved in the case

unless it goes to the root of the matter. It has also been observed

by Hon''ble Supreme Court in Kondiba Dagadu Kadam Vs.

Savitribai Sopan Gujar & Ors., reported in 1999 (3) SCC

722 that where a point of law has not been pleaded or is found to

be arisen between the parties in the absence of any factual

format, litigants should not be allowed to raise that question as

substantial question of law in second appeal.

Learned counsel for the respondent No.4 has placed reliance

on judgments in Chittoori Subanna Vs. Kudappa Subanna &

Ors., reported in AIR 1965 SC 1325, Ram Kristo Mandal &

Ors. Vs. Dhankisto Mandal, reported in AIR 1969 SC 204

and Shehla Burney (Dr.) Vs. Syed Ali Mossa Raza (D) by

LRs., reported in (2011) 6 SCC 529 to support his prayer that

this new plea can be raised at this stage also. In light of the

judgment in Santosh Hazari (supra) and Konidiba Dagadu Kadam

(supra), I am not convinced with the arguments advanced by

learned counsel for the respondent No.4. In my considered

opinion as this point was never raised right from the trial Court till

first appellate Court, it cannot be allowed to be argued in second

appeal. As this issue does not go to the root of the matter, I do

not feel inclined to frame any additional substantial question of

law on this point as per proviso to sub-section (5) of Section 100

CPC

Now adverting to substantial question No.1 framed in this

appeal, this Court is required to analyze whether the first

appellate Court was justified in coming to the conclusion that the

plaintiff has failed to discharge his burden on various issues as he

did not lead oral evidence despite the fact that the documents ere

admitted by defendant No.4 and such documents are available on

record.

To appreciate the intricacy of this substantial question more

explicitly, it will be appropriate to reproduce issues No.1, 2 and 3

framed by learned trial Court, the burden for which was laid on

plaintiff. These issues are as follows :-

"(i) Whether the tender bid submitted by defendant No.4 was not liable to be considered having been submitted on unauthorized tender form since it was typed with the aid of computer ?

(ii) Whether defendant No.4 was called for negotiation by District Collector on 25.6.2008 in an illegal manner ?

(iii) Whether the tender bid submitted by plaintiff was lowest (L-1) on not taking into consideration the bids submitted by M/s Ganpati Diagnostic Center and Indiana Nuclear Med Center ?"

All these above issues were found proved in favor of plaintiff

by learned trial court whereas the learned first appellate Court

concluded to find them proved against the plaintiff. Thus, there is

no concurrent finding recorded on these issues by the Courts

below. Learned first appellate Court has drawn its conclusion

mainly on the ground that the committee headed by District

Collector, Bikaner has uniformly ignored some infirmities found in

the tender bids submitted by all the tenderers. But learned trial

Court has ignored this defect in respect of the tender of plaintiff

only and not in respect of defendant No.4. Thus, the finding given

by learned trial Court is not proper and convincing. It has also

been observed that the format of the tender bid submitted by

defendant No.4 is exactly the same as the formats prescribed and

issued by RMRS. So, the finding of trial Court to the effect that it

is on unauthorised form is not correct.

As per the submissions made by learned counsel for both the

sides, it is clear that the controversy is mainly based on the

documents in respect of the notice inviting tender and the tender

forms submitted by various bidders.

To appreciate the findings given by both the Courts below, it

deems appropriate to look into the documents available on record

which are admitted ones on behalf of defendant No.4. Ex.A/2 is

the first Notice Inviting Tender issued on 29.02.2008 whereby

tenders were invited directing the interested firms "to submit the

rates of investigation in sealed envelopes on terms and conditions

given in the prescribed tender formats issued by the Hospital." It

was also mentioned in the note that "the undersigned has right to

accept or reject any tender fully or in part of it, without assigning

any reason". This notice was issued by the Principal Secretary,

RMRS, PBM Hospital, Bikaner. On perusal of this notice, it is clear

that the rates for investigation were required to be submitted in

the prescribed tender formats issued by the Hospital. A

corrigendum NIT was issued on 24.4.2008 (Ex.A/1) extending the

dates of submission of the tender bids in view of the amended

tender terms/ specifications informed by letter No.4496 dated

09.04.2008. On the note appended to the corrigendum, it was

directed that the tenderers who have already submitted the bid

can file additional information, formats under the sealed cover

without any additional fees. Respondent/defendant No.4 while

relying upon this condition has contended that as he had already

submitted his tender bid in the format issued by RMRS after

purchasing the same for Rs.1000/-, so it was not incumbent upon

him to again purchase it and to submit his bid in that format. It

has been argued on his behalf that there was nothing wrong in

submitting the tender forms in the exactly same format, which

was issued by the hospital after getting it typed by the computer.

It has also been averred that even the plaintiff submitted his bid,

though on the format issued by the hospital, but has added

information regarding some tests in respect of the column No.6.

It is also important to note that DW-2 Dr. Sunder Lal Surana,

who claims to be owner of M/s Ganpati Diagnostic Center has

admitted in cross examination that the financial bid submitted by

him after 10.04.2008 was in the computer sheet, which was the

exact copy of the format issued by hospital. It essentially means

that it was not in the format issued by hospital.

In this regard, the forwarding letter submitting the revised

technical and financial bid on behalf of M/s Ganpati Diagnostic

Center Ex.A/7 is important. It has been mentioned therein that

"so, we are submitting out revised technical and financial bid and

to cancel previous bid offered on 10.04.2008." By this letter

Ex.A/7, it is clear that the bid earlier submitted on 10.4.2008 on

behalf of M/s Ganpati Diagnostic Center was no more worth

consideration which had been cancelled. Now the only tender bid

on behalf of defendant No.4 available for consideration was the

revised technical and financial bid forwarded by him through letter

Ex.A/7. In my view, defendant No.4 cannot take any advantage of

the bid submitted by him on 10.04.2008. It is to be noted further

that in the corrigendum NIT, the liberty was given only to deposit

any additional bids while submitting the new technical information

and formats. Condition No.5 of the amended corrigendum also

needs attention wherein it was mentioned that all the remaining

terms and conditions of NIT would remain as it is. So, the

condition of submitting the tender bids, "in the prescribed tender

formats issued by the Hospital" mentioned in the NIT dated

29.2.2008 remains unchanged even under the corrigendum NIT.

In view of this, the tender bids submitted by defendant No.4

through forwarding letter Ex.A/7 not being in the prescribed

tender form issued by the hospital cannot be considered to be in

accordance with the terms and conditions of NIT. It appears that

learned first appellate Court has not taken this fact into

consideration while deciding issue No.1. In view of above, the

conclusion arrived at by learned lower appellate Court in regard to

issue No.1 does not appear to be correct.

So far as issue No.2 framed by learned trial Court is

concerned, lower appellate Court has inferred that the plaintiff has

not produced any evidence to the effect that defendant No.4 was

called for negotiation only because of some political reason. The

finding given by learned trial Court has been set aside on this

ground only.

It appears that learned lower appellate Court has failed to

take into consideration this fact that after the revised tender

notice submitted by defendant No.4 through Ex.A/7, his earlier

tender was cancelled by himself, so, that could have not been

taken into consideration and the revised tender bid was not

submitted as per the terms and conditions of the NIT. In view of

this, it was not justified to call defendant No.4 for negotiation.

Further, learned counsel for the appellant has raised this plea

that NIT was issued by President, RMRS. The formats issued for

the tender were also signed by him. The tenders were required to

be submitted to him. All the proceedings right from initiation till

completion was thus required to be supervised and completed by

office bearers of RMRS. On perusal of the statement of DW-1 Dr.

Parmendra Sirohi, it comes out that he has admitted in his cross

examination that ordinarily, there is no role of the Collector and

the State Government in the tender invited by RMRS, which has

got its own Rules and Constitution. Though he has admitted

during cross-examination done on behalf of defendant No.4 that

Principal, Medical College happens to be the Chairman of RMRS

and all other office bearers of RMRS are also Government officers,

who are ex-officio members of the society. But simply because

the Government officers are ex-officio members of RMRS, to my

view, this does not denude the society from its independent

existence as the Society, which is registered under the Rajasthan

Societies Act. The admitted fact remains that ordinarily, there is

no role of the Collector and the State Government in the tender

process initiated by RMRS.

In this regard, affidavits sworn in by DW-2 Dr. Sunder Lal

Surana also requires attention wherein it has been mentioned that

on the complaint made by him, the tender process was postponed.

He has also stated in the affidavit that when the Member

Secretary did not give any heed to the objections raised by him

regarding the tender documents submitted by Indiana Nuclear

Med Center, then, he made a complaint to the Government.

During his cross-examination, he has also admitted that the

Principal and Superintendent, who happens to be ex-officio

Chairman and Secretary of the RMRS were not removed by the

Government from their post except for the purpose of this tender

process. He has also admitted that Dr. Dhanpat Kochar, Dr. K.C.

Choudhary and Dr. M.S. Meena, who were made members of the

Committee constituted by the Government were not the members

of RMRS. Though he has denied the suggestion that he got the

committee constituted by putting political pressure upon Dy.

Secretary, Medical Education Department, but he has admitted

that since RMRS did not consider him as L-1, he made a complaint

to the Government. In view of these admissions and the

depositions, it is apparently clear that the powers and authority

ordinarily being exercised by RMRS in the tender process were not

allowed by the Government to be exercised in this tender process

on the basis of the complaint made by defendant No.4 and a new

committee headed by District Collector, Bikaner was constituted

vide order dated 20.06.2008. Order dated 20.06.2008 itself

mentions that tenders have already been invited and the

finalization thereof is to be made. For this purpose the following

committee under Chairmanship of District Collector, Bikaner is

constituted. The order itself clearly shows that the committee has

been constituted during the tender process. Learned counsel for

the appellant has placed reliance in this regard on Hussein

Ghadially @ M.H.G.A. Shaikh & Ors. Vs. State of Gujarat,

reported in (2014) 8 SCC 425 wherein it has been observed

that if the statute provides for a thing to be done in a particular

manner, then, it must been done in that manner alone. All other

modes or methods of doing that thing must be deemed to have

been prohibited. He has also placed reliance on Ravi Yashwant

Bhoir Vs. District Collector, Raigad & Ors., reported in

(2012) 4 SCC 407. It has been observed therein as under :

"48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law."

Learned counsel for the respondent No.4 has vehemently

argued that no challenge has been made in the pleadings to the

constitution of the committee under the Chairmanship of District

Collector, Bikaner.

Per contra, learned counsel for the appellant has stated that

enough evidence has been led on this point and the parties to the

pleadings were fully in the knowledge that this is the inherent

issue in the matter. Thus, this Court is not precluded to consider

and decide this controversy. He has also contended that issue

No.2 was framed in this regard, which covers the competence and

legality of the committee. He has placed reliance on the following

judgments :-

AIR 1963 SC 884 - Nedunuri Kameswaramma Vs. Sampati Subba Rao

AIR 1966 SC 735 - Bhagwati Prasad Vs. Chandramaul

AIR 2015 SC 3796 - Nandkishore Lalbhai Mehta Vs. New Era Fabrics P. Ltd. & Ors.

In Nedunuri Kameswaramma''s case (supra), it has been held

as under :

" ... ... ... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings................."

In Bhagwati Prasad''s case supra, following observation has been made as below :

"... ... ... If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.

In Nandkishore Lalbhai Mehta''s case (supra), it has been

held as under :-

"17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such . ... ... ..."

Learned counsel for the appellant has also placed reliance in

this regard on the following judgments :- 1. 2010 (9) SCC 437 - Kala Bharati Advertising Vs. Hemant Vimalnath Narichania

AIR 1971 SC 1228 - State of Punjab Vs. Ramji Lal

2011 (5) SCC 435 Joint Action Committee of Airlines Pilots Association of India Vs. Director General of Civil Aviation.

In Kala Bharati Advertising''s case (supra), it has been held in

para-25 as under : "25. The State is under obligation to act fairly without ill will or malice - in fact or in law. "Legal Malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts."

In State of Punjab''s case (supra), it has been held as under :

"... ... ... The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claims to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose."

In Joint Action Committee of Airlines Pilots Association of

India''s case (supra), it has been held as under : "28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guidelines or direction to the authority under the statute to act in a particular manner."

In view of the above, it is clear that the Rajasthan Medicare

Relief Society, PBM Hospital, Bikaner, which was authorized to

conduct and finalize the tender process was denuded of its

authority in respect of this particular tender on the basis of the

complaint made by defendant No.4, who was ultimately declared

L-1 by the committee which replaced the original authority. This

shows that the process of finalization of this tender was not done

in the ordinary manner in which it ought to have been completed.

On this count alone, it is the inevitable inference to be drawn that

the District Collector or the committee headed by him was not

authorized to finalize the tender process and whatever steps were

taken by it, those were devoid of the genuine authority. The

judicial pronouncements relied upon by learned counsel for the

respondent No.4 in Ramana Dayaram Shetty Vs. Internation

Airport Authority of India, reported in (1979) 3 SCC 489,

G.J. Fernandez Vs. State of Karnataka, reported in (1990) 2

SCC 48, BSN Joshi & Sons Vs. Nair Coal Services & Ors.,

reported in (2006) 11 SCC 548, Jagdish Mandal Vs. State of

Orissa & Ors., reported in (2007) 14 SCC 517, Central Coal

Fields Limited & Anr. Vs. SLL-SML (Joint Venture

Consortium) & Ors., reported in (2016) 8 SCC 622, Afcons

Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd.

& Anr. (Civil Appeal No.9078 of 2016, decided by Hon''ble

Supreme Court vide judgment dated 15.09.2016 and

Montecarlo Limited Vs. NTPC Limited, reported in AIR 2016

SC 4946 appear to be of no avail in the facts and circumstances

of the case. Had the ordinarily authorized committee of experts,

which was initially constituted to complete the process continued

to evaluate the tenderers and to declare one of them successful,

the things would have been different and then, the judgments

cited above could have come to support the case of respondent

No.4. But in the eventuality of the basic infirmity with which the

substituted committee was suffering, in my view, the powers of

judicial review of the Court cannot be restrained or restricted.

Burden of proof was laid on plaintiff for the issue No.3

framed by learned trial Court wherein it was required to be proved

that on ignoring the tenders submitted by M/s Ganpati Diagnostic

Center and Indiana Nuclear Med Center, tender submitted by

plaintiff was lowest.

In light of the observation made above regarding lack of

authority in the committee constituted by the Government under

order dated 20.06.2008, in my view, this issue has lost its

significance. It is undisputed that the evaluation was done by the

said committee and not by the committee which initiated the

tender proceedings. Despite that, if the pleadings and evidence

available on record in regard to this issue are considered, para -8

of the written statement filed on behalf of defendants No.1 to 3

mentions that after taking all the relevant points into

consideration and detailed study, the committee awarded the

gradation of various bidders in the following order :

Sr. No. Tenderers Score

1 M/s Ganpati Diagnostic Center, Bikaner 1771.60

M/s Indiana Nuclear Medi Center, Jaipur 1969.28

3 Emkay Medicare Services 2036.42

4 Shubham Diagnostic Center 2066.60

5 Sanya Hospital & Diagnostic Pvt. Ltd. 2783.75

The same fact has been reiterated in para 8 of the affidavit

sworn in by DW-1 Dr. Parmendra Sirohi.

On perusal of the score obtained by various tenderers, it

comes out that M/s Ganpati Diagnostic Center stood at priority

No.1, M/s Indiana Nuclear Medi Center, Jaipur stood at No.2 and

M/s Emkay Medicare Center was at No.3. It has also been

mentioned in sub-para 5, 6 and 7 of para 23 of the written

statement of defendants No.1 to 3 as also in sub-para 2 to 8 of

para 12 of the affidavit of DW-1 Dr. Parmendra Sirohi that M/s

Indiana Nuclear Medi Center offered the rates with the condition of

increase @ 10% every three years. The rates submitted by M/s

Ganpati Diagnostic Center were not submitted on the formats

printed by the hospital but were submitted on the typed paper

separately. It has further been stated that the Committee chose

the option not to strictly apply the conditions of tender in regard

to these lacunae but ignoring the same it chose to consider the

tenders submitted by both these firms. It is, thus, clear that had

it been decided by the Committee to strictly adhere to the terms

and condition of the NIT, the bids submitted by M/s Ganpati

Diagnostic Center and M/s Indiana Nuclear Medi Center could have

been out of consideration and thus M/s. Emkay Medicare Services

could have stood at priority No.1 as L-1. This inference can

obviously be drawn simply on the perusal of written statement

submitted by respondents No.1 to 3 and the affidavits sworn in by

DW-1 Dr. Parendra Sirohi. This is further substantiated by the

perusal of minutes of the meeting dated 22.6.2008 of the said

committee, which is Ex.A/13, the documents admitted on behalf of

Defendant No.4. In view of these facts, it was not required for the

plaintiff to have adduce any evidence in rebuttal as the issue was

sufficiently proved by the evidence submitted on behalf of

defendants themselves. Thus, the finding given by learned lower

appellate Court that in absence of plaintiffs evidence, this issue is

not found proved in favour of him, does not appeal to logic and is

liable to be reversed accordingly.

Learned counsel for the appellant has referred to the

provisions contained in Sections 58, 59, 61 and 62 of Indian

Evidence Act and has submitted that in face of the fact that the

controversy involved is based on the documentary evidence only

and the documents have been fairly admitted on behalf of

respondent defendant No.4, there was no need for the plaintiff to

adduce any oral evidence. On persual iof the provisions referred

above as also provisions contained in Order 8 Rule 5 and Order 12

Rule 6 CPC, I am convinced with the arguments advanced by

learned counsel for the appellant. Of course, under Section 58 of

the Indian Evidence Act and under Order 8 Rule 5 CPC, the

proviso has been added that the Court may, in its discretion,

require the facts admitted to be proved otherwise then by such

admissions. But in my view when the controversy is purely limited

to the documents, no oral evidence could have been asked to be

produced to controvert the contents and the infirmities, if any in

the documents themselves. More particularly, when the

documents have been admitted, no occasion was left with the

Court to ask the opposite side to produce any further evidence.

Though reliance has been placed by both the learned counsels on

various judicial pronouncements in this regard but the fact and

situation of the case in hand is very clear and unambiguous to

which the legal provisions are clearly applicable, so I do not intend

to burden the judgment by referring to the judgments referred.

All these three issues, the burden of proof of which was on

the plaintiff appellant, in my considered view, have been wrongly

decided by lower appellate Court while reversing the findings

given by learned trial Court. The documents available on record,

which were admitted on behalf of defendant No.4 and the oral

evidence adduced by DW-1 and DW-2 was worth consideration by

learned lower appellate Court. The oral evidence has not at all

been discussed and evaluated by it. Further, the admitted

documents have also not been properly considered and construed

resulting in wrong finding on these issues. This Court is under

obligation to re-appreciate this evidence in second appeal. Thus,

this substantial question of law is found proved in favour of

appellant plaintiff and against respondent defendants.

The question No.2 framed by this Court is as follows :-

"(ii) Whether the first appellate court was justified in coming to the conclusion that the tender submitted by defendant No.4 was valid ?"

Learned lower appellate Court while analyzing the issue No.1

has come to the conclusion that the finding given by learned trial

Court is wrong with regard to this issue. The conclusion drawn by

learned lower appellate Court is based on three grounds. Firstly, it

has been stated that it has not been clearly and unequivocally

admitted by defendant No.4 in his written statement that the

tender was submitted by him on the formats got typed by himself

on computer. Secondly, it has been stated that there was no

condition in the NIT that initials could not be put on the tender

forms and thirdly that the financial bid submitted by defendant

No.4 was in the same language as that of prescribed format. It

has also been stated that the bid submitted by the plaintiff himself

was also having some entries blank in regard to the required rates

for certain tests. It has been observed by learned lower appellate

Court that the trial Court has found nothing wrong in over looking

the lacunae left by the plaintiff in his bid whereas the bid of

defendant No.4 has been found defective by the trial Court, which

itself is discriminatory.

Enough discussion has been made in regard to issue No.1 in

the substantial question mentioned above. It is suffice to say here

that whether the tender submitted by defendant No.4 was in the

typed copy but not in the format prescribed or whether it was not

signed and only initialed by him are of not much significance but

the main issue is the competence of the committee which finalized

the tender process. As mentioned above, the committee was

having inherent defects in its constitution having been formed

during the process of the tender. Further it was out-rightly an

authority foreign to the Constitution and Rules of RMRS, which

was never anticipated in that scheme. Besides this, if the

statement of DW-2 Dr. Sunder Lal Surana is considered, he has

admitted in his cross examination that after revision of the date,

the tender form, which he submitted was on the computer sheet.

It has not been stated by him that the computer sheet was issued

to him by RMRS, as was pleaded in the written statement. Thus,

the observation made by learned lower appellate Court is not

found substantiated on perusal of the evidence given by DW-2. It,

thus, appears to be a violation of the terms and conditions of NIT.

So far as question of ignoring the lacunae in the bid submitted by

plaintiff is concerned, it does not entitle the other bidders to claim

equity in committing similar mistake or the other. The finding

arrived at by learned lower appellate Court on this ground does

not appear to be justified and is thus, liable to be reversed. Thus,

this substantial question of law is replied in favour of appellant

and against the defendant No.4.

Substantial question No.3 framed by this Court is as

follows :-

" (iii) Whether in the facts and circumstances of the case, the suit filed by the appellant can be termed as premature ?"

In fact, this question is identical to issue No.4 framed by

learned trial Court. Learned trial Court decided this issue in

favour of appellant/plaintiff and against the defendants. Learned

first appellate Court arrived at the reversed finding holding that

the tender was not finalized as per the evidence produced by

defendants. Hence, the suit was premature.

Obviously, the burden of issue No.4 was upon defendants.

On perusal of the affidavit sworn in by DW-1 Dr. Parmendra Sirohi,

it is revealed that it was unanimously decided by the committee

constituted by the Government to call L-1 M/s. Ganpati Diagnostic

Center for negotiation on 24.6.2008 with the object to lower down

some of the rates given by him. Discussion took place and

thereafter a counter offer was given to M/s. Ganpati Diagnostic

Center, which was accepted on its behalf. It is further revealed

that in meeting dated 24.6.2008 held by the committee under

Chairmanship of District Collector, it was unanimously decided to

declare M/s. Ganpati Diagnostic Center to be the successful bidder

and also to send the minutes to Secretary, Medical Education

Department, Government of Rajasthan, Jaipur. It has further been

stated that in compliance of the minutes, the whole proceedings

and the tender file was sent to the Secretary, Medical Education

Department vide letter No.154 dated 27.6.2008 by

Superintendent, PBM Hospital, Bikaner. On perusal of the

documentary evidence, it is found that the letter containing

counter offer Ex.A/16 is there on record, which has been accepted

on behalf of M/s. Ganpati Diagnostic Center vide letter dated

24.6.2008 (Ex.A/17). Minutes of the meeting dated 24.6.2008,

declaring M/s. Ganpati Diagnostic Center as successful bidder is

Ex.A/18. It has been deposed by DW-1 that the letter No.154

dated 27.6.2008 was sent forwarding the whole proceedings for

approval to Secretary, Medical Education Department. In view of

these facts, it is evidently clear that the whole process of

finalization of the tender was completed by the committee

constituted by Government of Rajasthan. For a mere formal

approval of the recommendation of the committee, the letter was

sent to the Secretary, Medical Education Department. In light of

the documentary evidence as well as the oral evidence adduced by

defendants themselves, it is clear that the whole process came to

the final stage and was completed. Thus, the suit filed on

27.6.2008 by appellant plaintiff cannot be said to be premature.

The finding of learned first appellate Court appears to be mis-

founded while ignoring the evidence available on record. Hence,

this question is replied in favour of appellant/plaintiff.

Substantial question of law No.4 framed by this Court is as

follows :-

" (iv) Whether in the facts and circumstances of the case, the first appellate Court was justified in coming to the conclusion that plaintiff was not granted leave under Section 80 (2) CPC ?"

This question is identical to issue No.6 framed by learned

trial Court, the burden of proof of which was laid on defendants.

This issue was decided by learned trial Court in favour of plaintiff

and against the defendants. Learned first appellate Court has

reversed the finding and has found this issue proved in favour of

defendants. Nothing has been deposed in the affidavit of DW-1 in

regard to notice under Section 80 (2) CPC. On perusal of the

record, it is found that an application under Section 80 (2) CPC

was filed on behalf of plaintiff/appellant before the trial Court on

27.6.2008. Order-sheet dated 27.6.2008 of learned trial Court

reveals that though no order was passed on the said application

but permission was granted to hear the matter during summer

vacations. Learned counsel for the appellant submitted that this

itself shows that taking into consideration the urgency in the

matter, learned trial Court allowed the case to be listed during

summer vacation and this is a deemed permission on the

application filed under Section 80 (2) CPC. He further submitted

that an application under Order 7 Rule 11 CPC came to be filed on

behalf of defendants No.1 to 3 stating that neither notice under

Section 80 CPC has been given to the State Government prior to

filing of the suit nor permission has been sought from the Court

under Section 80 (2) CPC in this regard. Hence, the suit is liable

to be dismissed. The said application came to be rejected vide

order dated 26.7.2008. On perusal of the record, submission

made by learned counsel for the appellant is found to be correct.

It has been inferred by learned trial Court in the order dated

26.7.2008 that institution of the suit itself indicates that

permission was granted on the application filed by the appellant

under Section 80 (2) CPC.

Learned counsel for the appellant submitted that this order

dated 26.7.2008 passed on the application under Order 7 Rule 11

CPC has attained finality as it has never been challenged by the

defendants. Thus they are estopped from taking any plea against

it. Per contra, learned counsel for the respondent No.4 submitted

that the interim order passed by trial Court can very well be

challenged in the appeal against decree and this does not matter

whether interim order was earlier challenged or not. Learned

counsel for the appellant has placed reliance upon the judgment

rendered by Delhi High Court in Basic Tele Services Vs. Union

of India & Anr. (CS (OS) 2686/1996, decided on

28.05.2009). Delhi High Court was confronted in this case with

the same situation and it was held that though in specific words

the leave under Section 80 (2) CPC was not granted but the Court

also did not return the plaint. On the contrary, leave sought to

treat the matter urgent was granted. So, it has been held that it

was a deemed permission under Section 80 (2) CPC. I find myself

in agreement with the view expressed above. It is undisputed

that the suit filed by plaintiff appellant was heard during summer

vacations. This tantamount to deemed permission to waive the

requirement of the notice under Section 80 CPC. Hence, the

finding arrived at by learned first appellate Court does not appear

to be logical and correct. Hence, this question is also replied in

favour of the appellant plaintiff.

In view of the discussions made above, all the above stated

substantial questions of law are replied in favour of the

appellant/plaintiff. Thus, both the appeals succeed. In the result,

the judgment dated 11.09.2014 passed by learned lower appellate

Court in Civil Appeals No.11/2011 and 12/2011 is quashed and set

aside, while upholding the judgment and decree dated 19.10.2010

passed by learned trial Court. Accordingly, both the appeals

preferred by appellant/plaintiff are allowed.