AI Structured Summary
Not yet generated for this judgment
Judgment
1) Learned counsels for the petitioner, namely, Mr. C. P. Sharma, Sr. Advocate, assisted by Mr. A. Lal, as well as learned counsel for the sole
respondent Mr. N. Deka, were heard on 11.01.2022 and fixed the matter today for order.
2) Petitioner is a company registered under the Companies Act, 1956 and is engaged in the business of Design, fabrication, construction of pressure
vessels including mounted storage vessels, heat exchangers, piping and skids of various industries; Execution of large engineering projects in the field
of pressurised tanks and vessels and providing EPC services to reputed Oil Companies and Multi National Companies and Manufacturing 100%
Cotton Yarn.
3) Since 24.09.2019, the petitioner company was under Corporate Insolvency Resolution Process (CIRP, in short) that was initiated by the National
Company Law Tribunal, Mumbai under the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016, in short). The said Tribunal on
24.09.2019 itself appointed an Interim Resolution Professional (IRP, in short) to conduct the CIRP of the petitioner company, who on 16.01.2020
issued the requisite Form G and thereafter on 04.03.2020 and 27.08.2020 issued revised Form G in two newspapers, one in English and other in
Marathi language, inviting Expression of Interest (EOI, in short) from Prospective Resolution Applicants (PRAs).
4) It is stated that the consortium of Manjeet Cotton Private Limited and Parason Machinery (India) Private Limited being interested to revive the
petitioner company under IBC, 2016 submitted its EOI on 08.01.2021. Considering the same the Resolution Professional issued Request for Resolution
Plan (RFRP, in short) to the PRAs. Accordingly, the PRAs submitted the Resolution Plan for consideration of the Committee of Creditors (COC, in
short) as per Section 30 of the IBC, 2016, stating that the PRAs shall bring in an amount of Rs. 197 Crores, out of which Rs. 50 Crores shall be
infused as and by way of working capital into the petitioner company and the remaining amount shall be paid to various financial creditors in the
manner as provided in the plan including certain operational creditors and also for the treatment of the liabilities, loans and outgoing and dues of all the
creditors of the petitioner company as well as further treatment for its effective revival.
5) As the said Resolution Plan submitted by the PRAs was approved by the COCs by the majority voting (e-voting) of 85.15% that was held between
02.02.2021 to 18.02.2021 as per the provisions of Section 30 (4) of the IBC, 2016, the Resolution Professional immediately on 27.02.2021 filed an
application under Section 30(6) of the IBC, 2016 being I.A. No. 607/2021 before the NCLT, Mumbai for approval of the said Resolution Plan by the
Adjudicating Authority under Section 31 of the IBC, 2016. Since the I.A. for approval of the Resolution Plan was pending before NCLT, Mumbai,
since later part of February, 2021 the Resolution Applicant, who have taken over the petitioner company, filed an application before the said Tribunal
for urgent listing and hearing of the said I.A. showing the urgency and requirement for approval of the concerned Resolution Plan under Section 31 of
the IBC, 2016.
6) Pursuant to the said application of the Resolution Applicant, the NCLT, Mumbai heard the I.A. No. 607/2021 from time to time and closed the said
Interlocutory Application on 29.10.2021 for orders. The NCLT, Mumbai by its Order dated 16.11.2021 allowed the said I.A. No. 607/2021 approving
the Resolution Plan and disposed of the said application and it was signed and uploaded on 24.11.2021.
7) After approval of the said Resolution Plan by the NCLT, Mumbai by its order dated 16.11.2021 and on uploading of the same in its website on
24.11.2021, copy of the said order was obtained and the Balance Sheet and Financial Statement of the petitioner company was prepared showing its
Net Worth of Rs. 122 Crores and Working Capital availability of Rs. 23 Crores.
8) In the meanwhile, the sole respondent Numaligarh Refinery Limited (NRL, in short) issued Notice Inviting Tender being Bidding Document
No./Tender No. 082176C/NRL/T/TANKS-2/07 inviting Bids for execution of “STORAGE TANKS PACKAGE PHASE 2 (8 NOS.) WORKSâ€
(“Projectâ€) for Numaligarh Refinery Expansion Project at NRL Numaligarh Refinery located at Numaligarh, Assam, India being undertaken by it
on open Domestic Competitive Bidding (E-Bidding) under single stage two-bid system (Part-1: Techno-Commercial Bid and Part-2: Price Bid) from
competent Bidders with sound technical and financial capabilities fulfilling the Bidder Qualification Criteria as specified in said tender document.
9) The Tender download schedule as per the said NIT was from 01.09.2021 upto 16:00 Hours of 06.10.2021 and submission of bid schedule was from
11:00 Hours of 04.10.2021 to 16:00 Hours of 06.10.2021. However, with regard to the said NIT, respondent NRL issued corrigendum from time to
time and the last date for submission of bid by all the prospective bidders was extended up to 03.11.2021.
10) As per the said NIT issued by the respondent NRL, each bidder is required to submit documents fulfilling the technical and financial criteria as
specified in the tender document stipulating that the financial bid of only such bidder shall be opened, whose technical bid is found to be qualified.
Further, the said NIT indicates that the qualification Criteria is divided into two aspects, i.e., the previous experience of the prospective bidder of
completing the similar work and the financial capability to complete the said work.
11) Clause 10.2 of the said Tender relates to Financial Criteria where as Clauses 10.2.1, 10.2.2. and 10.2.3 stipulate the detail regarding Financial
Criteria. Clause 10.2.1 specifies â€" The average annual turnover of the Bidder shall be equal to or more than Indian Rupees of 16.80 Crores during
the three immediately preceding financial years from the date of issue of Bidding Documents. Clause 10.2.2 specifies â€" Bidder shall have positive
net worth for the immediately preceding financial year as per the latest audited report and Clause 10.2.3 specifies â€" The Bidder must have a
minimum working capital of amount equivalent to Indian Rupees of 5.60 Crores as per immediate proceeding financial year audited annual Report.
12) Petitioner stated that on the last date of submission of bids by the prospective bidders, i.e. on 03.11.2021, it submitted the bid with a letter dated
30.10.2021, stating that being under the Corporate Insolvency Resolution Process (CIRP), it is unable to submit relevant documents pertaining to
Positive Net Worth and Working Capital requirements for want of finalisation of its Balance Sheet further stating that as when the order is passed by
the NCLT, the relevant documents will be made available for appropriate evaluation by the respondent.
13) Petitioner also stated that after the order of the NCLT, Mumbai dated 16.11.2021, on preparing its audited Balance Sheet for the year 2020-21, it
immediately submitted the same before the respondent authorities on 14.12.2021 by e-mail as well as courier service, requesting the respondent that as
the Resolution Plan of the petitioner has been approved, therefore its Balance Sheet and Financial Statements be considered.
14) Petitioner further stated that between 22.12.2021 to 30.12.2021 several e-mails have been communicated by the respondent to the petitioner
raising various techno-commercial queries in respect of the bid submitted by it, which the petitioner responded vide e-mail as well as telephonically
clarifying those queries.
15) It is stated that in terms of the said NIT issued by the sole respondent, the petitioner along with nine other bidders have submitted their bids and
that the respondent is in the process of evaluating the technical bids submitted by the bidders and that the commercial bids have not yet opened. It is
also stated by the petitioner that the financial bids of those bidders will be opened whose technical bids are found to be qualified.
16) Petitioner submits that the respondent and its project management consultant are not ready and willing to accept any further documents submitted
by the petitioner after the last date of submission of bids, i.e., 03.11.2021 and accordingly informed the petitioner.
17) Petitioner stated that it could not file the relevant financial documents along with its bid on 03.11.2021, the last date of submission of bids, for the
want of order from the NCLT and owing to the peculiar facts as connected herein. Petitioner further stated that it has no malafide intentions in not
submitting the relevant financial documents before the last date of submission of bids nor does it is gaining any undue advantage over the other
bidders.
18) Hence, this writ petition by the petitioner praying amongst others for a direction to the respondent to accept and consider the Balance Sheet and
other Financial Documents/Statements submitted by the petitioner, as produced at Annexure-10 to this petition, while evaluating the financial criteria in
Technical Qualification of the petitioner in the subject tender floated by the respondent by Notice Inviting Tender bearing No.
082176C/NRL/T/TANKS-2/07 and not to disqualify the petitioner for want of not having positive net worth and/or working capital requirement while
evaluating the bid of the petitioner and/or technical qualification criteria as mentioned in the aforesaid NIT of the respondent.
19) Petitioner also brought to the notice of the Court that it filed Writ Petition (ST) No. 25690/2021 before the High Court of Judicature at Bombay,
being Writ Petition No. 6/2022, but due to the issue of jurisdiction, the same was withdrawn on 04.01.2022 with liberty to approach this Court. To that
extent copy of said order dated 04.01.2022 passed in Writ Petition No. 6/2022 by the Bombay High Court has been placed before the Court.
20) Mr. C. P. Sharma, learned Senior counsel for the petitioner stating the maxim “actus curiae neminem gravabit†submitted that an act of court
or delay in the procedure shall prejudice no man. As such he submitted that as the matter of CIRP was pending before the NCLT, Mumbai much
prior to the date of downloading of the tender document and the last date of submission of bid pertaining to the NIT involved in the case, whereas the
said Tribunal passed the order only on 16.11.2021 that was uploaded on 24.11.2021, which is after 03.11.2021, the last date of submission of Bid by
the prospective Bidders; therefore, the prayer of the petitioner needs to be considered and allowed.
21) Mr. Sharma in support of his submission placed the decision of the Hon’ble Supreme Court in the case of Atma Ram Mittal -Vs- Ishwar
Singh Punia, reported in (1988) 4 SCC 284.
22) Mr. N. Deka, learned counsel for the sole respondent NRL submitted that apparently the petitioner did not submit certain requisite financial
documents along with its bid on the last date of submission of bid in terms of the NIT issued by the NRL, involved in the present case.
23) Mr. Deka, on instruction also submitted that presently the technical bids of the bidders are in the process of evaluation and the bidders whose
technical bids are found to be qualified; their financial bids shall be opened shortly. Mr. Deka on instruction also stated that respondent NRL shall
abide by any terms that may elucidate in the order to be passed by the Court but technical bid of the petitioner has to undergo the required scrutiny.
24) With regard to the NIT involved in the case wherein e-tender was issued, Mr. Sharma, learned counsel appearing for the petitioner stated that the
concerned e-portal/platform on which such e-tender was to be uploaded/ submitted by the prospective bidder pursuant to the NIT No.
082176C/NRL/T/ TANKS-2/07, issued by the respondent, is no longer active/in force and is not operable by any such bidder after the last date of
submission of bid, i.e. 03.11.2021. Mr. Deka, learned counsel appearing for the respondent admitting the fact stated that after the last date and time of
submission/ uploading of bid, the concerned e-portal becomes defunct.
25) Heard the submissions of the learned counsels of both the parties and also considered the judgment of the Hon’ble Supreme Court in the case
of Atma Ram Mittal (supra).
26) In the case of Atma Ram Mittal (supra) (1988) 4 SCC 284, the Hon’ble Supreme Court on the basis of legal maxim actus curiae neminem
gravabit have settled that no man should suffer because of the fault of the court or delay in the procedure.
27) The Hon’ble Supreme Court in the case of Kalabharati Advertising -Vs- Hemant Vimalnath Narichania, reported in (2010) 9 SCC 437 have
held that wherein it has been ruled that the maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one,
becomes applicable when a situation is projected where the court is under an obligation to undo the wrong done to a party by the act of the court. In a
case, where any undeserved or unfair advantage has been gained by a party invoking the jurisdiction of the court, and the same requires to be
neutralised, the said maxim is to be made applicable.
28) It is settled that legal maxims serve as guiding principles. In the case of Sarah Mathew -Vs- Institute of Cardio Vascular Diseases, reported in
(2014) 2 SCC 62 the Hon’ble Apex Court in its Constitution Bench have held that the legal maxim actus curiae neminem gravabit means that the
act of court shall prejudice no man and that the court’s inaction in applying mind to the suspected offence should not be allowed to cause prejudice
to a diligent complainant.
29) In the case of Neeraj Kumar Sainy -Vs- State of U.P., reported in (2017) 14 SCC 136, the Hon’ble Apex Court, while considering the legal
maxim actus curiae neminem gravabit have held that â€" Needless to say, it is well settled in law that no one should suffer any prejudice because of
the act of the court but the legal maxim that has been taken recourse to cannot operate in a vacuum and it has to get the sustenance from the facts.
30) A three Judges Bench of the Hon’ble Supreme Court in the case of Jang Singh -Vs- Brij Lal and Others, reported in AIR 1966 SC 1631 with
regard to the legal maxim actus curiae neminem gravabit have held that â€" If the litigant acts on the faith of that information the Courts cannot hold
him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts
should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the
position he would have occupied but for that mistake. This is aptly summed up in the maxim: ""Actus curiae neminem gravabit''.
31) It is seen that the NCLT, Mumbai on 24.09.2019 placed the petitioner company under CIRP under the provisions of the Insolvency and
Bankruptcy Code, 2016 and also appointed IRP to conduct the CIRP. Said IRP issued requisite Form G inviting EOI in August 2020 from PRAs of
the petitioner company. Pursuant to the same the consortium of Manjeet Cotton Private Limited and Parason Machinery (India) Private Limited as
PRAs on 08.01.2021 submitted the EOI to revive the petitioner company under the IBC. Thereafter on the communication of the IRP the PRAs
submitted the Request for Resolution Plan, which was placed before the Committee of Creditors as required under Section 30 of the IBC, 2016. The
COCs by majority voting between the period from 02.02.2021 to 18.02.2021 approved the Resolution Plan submitted by the PRAs as required under
Section 30 (4) of the IBC, 2016 and the concerned Resolution Professional on 27.02.2021 itself filed the necessary application before the NCLT,
Mumbai being I.A. No. 607/2021 for approval of the said Resolution Plan by the Adjudicating Authority as required under Section 31 of the IBC, 2016
and the same was filed prior to 31st March, 2021. As the said I.A. was pending before the NCLT, Mumbai since 27.02.2021 for approval of the
relevant Resolution Plan and considering the urgency in the matter, the Resolution Applicant submitted the necessary application before the NCLT,
Mumbai on 16.10.2021 for urgent listing of said I.A. No. 607/2021 for its hearing and for approval of the Resolution Plan submitted in the matter.
Thereafter, the NCLT, Mumbai heard the said I.A. No. 607/2021 from time to time and closed the said I.A. on 29.10.2021 for orders. All these were
prior to the last date of submission of the NIT involved in the case, i.e., prior to 03.11.2021.
32) The NCLT, Mumbai by its Order dated 16.11.2021 disposed of the said I.A. No. 607/2021 approving the Resolution Plan, which was signed and
uploaded on 24.11.2021 and thereafter on obtaining the copyof the said order dated 16.11.2021, the Balance Sheet and Financial Statement of the
petitioner company could be prepared showing Net Worth of Rs. 122 Crores and Working Capital availability of Rs. 23 Crores, which the petitioner
submitted before the respondent NRL on 14.12.2021 by e-mail and courier service, and all these are after 03.11.2021, the last date of submission of
the NIT involved in the case.
33) It is also seen that after the Committee of Creditors by majority voting approved the Resolution Plan of the Resolution Applicants, the Resolution
Professional immediately filed the I.A. No. 607/2021 before NCLT, Mumbai on 27.02.2021 for approval of the said Resolution Plan. Further, the
Resolution Applicant, have also filed an application before the said Tribunal for urgent listing and hearing of the said I.A. No. 607/2021. All these
show that the Resolution Professional as well as the Resolution Applicant acted diligently and much before the last date of submission of bid, i.e.,
03.11.2021; but the NCLT, Mumbai disposed of the said I.A. No. 607/2021 only on 16.11.2021 allowing the same and approving the Resolution Plan,
as noted above.
34) The Court have also seen that till the decision of the NCLT, Mumbai dated 16.11.2021 passed in said I.A. No. 607/2021 approving the relevant
Resolution Plan that was signed and uploaded on 24.11.202, involved in the proceeding of the Corporate Insolvency Resolution Process against the
petitioner pending before the said Tribunal, the requisite Balance Sheet and Financial Statement of the petitioner company could not have been
prepared.
35) For the reasons above, no fault can be attributed to the petitioner company for not furnishing its requisite Balance Sheet and other Financial
Documents/Statements along with its bid on the last date of submission of bid on 03.11.2021 in pursuance of the NIT No. 082176C/NRL/T/TANKS-
2/07 issued by the respondent.
36) The Court have also noticed that the bids of the bidders are in the process of technical evaluation and the financial bids of the technically qualified
bidders are yet to be opened.
37) Considering the entire aspect of the matter, pursuant to the NIT No. 082176C/NRL/T/TANKS-2/07 issued by the respondent, the petitioner is
directed to submit its requisite Balance Sheet and other Financial Documents/ Statements, duly signed by its authority, as provided in Annexure-10 to
this petition, both by e-mail and also by submitting copies of the same physically, before the sole respondent on or before 04:00 pm of 24th January,
2022, obtaining necessary acknowledgment from the respondent in that regard.
38) In the event of submitting the requisite Balance Sheet and other Financial Documents/Statements by the petitioner, as directed and within the time
so specified, the respondent NRL shall evaluate the financial criteria in Technical Qualification of the petitioner in the subject tender floated by the
respondent by Notice Inviting Tender bearing No. 082176C/NRL/T/TANKS-2/07 in terms of the conditions and Bidder Qualification Criteria
incorporated in the said Tender floated by the respondent, involved in this case.
39) However, it is made clear that respondent NRL shall not disqualify the petitioner for want of not having positive Net Worth and/or Working
Capital requirement while evaluating the bid of the petitioner and/or technical qualification criteria, which it could not furnish along with its bid
document on 03.11.2021, i.e., the last date of submission of bid for want of the approval of the Resolution Plan, which the National Company Law
Tribunal, Mumbai subsequently allowed on 16.11.2021 while disposing of said I.A. No. 607/2021, noted above.
40) With the above observation and direction, this writ petition stands allowed to the extent above.
41) Consequently, the interim order passed earlier on 11.01.2022 is hereby recalled/stands vacated.