Jayenn India Private Limited vs State Bank of Bikaner and Jaipur

Ajay Rastogi, J.—Matter has come up on application Under Article 226(3) of the Constitution for vacation of ex-parte stay order passed by this Court dt. 22nd December, 2008, but with the consent of parties, it is finally decided at the stage of admission.

Respondent-Bank namely; State Bank of Bikaner & Jaipur in pursuance of tender notice Ann.5 invited sealed tenders [technical bids] for supply of installation, commissioning & maintenance of pockets desk top note sorting machines at various branches of the Bank located across the country from reputed firms/companies upto 25th November, 2008. As per Section II which relates to instruction to tenderers and for submission of tender, tenderers were invited in terms of Para 1.1 from such firms/companies who should be proven and reputed supplier of Desk Top Note Sorting Machines and should have supplied atleast 200 note shorting machines of various types to public sectors banks in India. Petitioner who considered himself to be eligible and fulfilled all the conditions in terms of tender notice, submitted its sealed tender.

However, when he was not permitted to participate in the stress test, he approached this Court by filing instant petition. However, while issuing notice on 22nd December, 2008, this Court observed that tender proceedings shall be subject to final decision of the court.

Counsel for petitioner submits that in all 324 machines of Model K-500 were supplied to various public sectors banks and within the SBBJ atleast 106 machines have been supplied by now and he being sole distributor of one of the standard brand "Kisan" which is evident from Ann.2 dt.28th April, 2008 if is not being permitted to participate in the stress test in terms of tender document, it will cause prejudice to them.

Respondents in their reply have specifically averred that as per instructions which are appended to tender notice for tenderers only such firms/companies would be considered for stress test those who have supplied at least 200 note sorting machines to various types of public sectors banks in India. However, petitioner- Company has not supplied required number of machines to public sectors banks in India as required under the tender document and merely because the brand of which petitioner claims to be sole distributor namely; Kisan Model K-500 that will not make the petitioner eligible to participate in the stress test in pursuance of tender notice [Ann.5].

It has also been averred that prior to April, 2008, there were three distributors of Kisan Electronics Company Ltd., Seol, Korea. Thus, the petitioner cannot take the credit of supply of 300 machines by different distributors as being supplied in the petitioner-Company for the purpose of seeking order from this Court for permitting to participate in the stress test and since he has failed to comply with the condition referred to in Para 1.1 of the instruction to tenderers, has rightly not been permitted to participate in the stress test.

I have heard counsel for parties and perused the material on record.

Para 1.1 of Section II, which is relevant for the present purpose, is reproduced hereunder:

1.1 Tenders are invited only from firms/companies who should be a proven and reputed supplier of Desk Top Sorting Machines and should have supplied at least 200 note sorting machines of various types to public sector banks in India and having their maintenance and after sale service network all over India, and who shall be responsible for providing regular maintenance & after sale service so as to ensure that calls for services given by our chest branches located across the country can be attended to within a maximum period of 24 hours.

It was within the domain of Bank to laid down the condition in the tender document and being pure commercial contract, this Court is refrained from interference unless the action of the public authority is wholly arbitrary or imputed by malice is not called upon to interference.

As regards submission made by petitioner''s counsel that he being a sole supplier and more than 324 machines have been supplied of Model K- 500, will be of no substance for the reason that requirement under tender document [Ann.5] is that firms/companies who wants to participate must have supplied atleast 200 notes sorting machines to public sectors banks which the petitioner lacks and failed to comply with the requirement to participate. In absence whereof, certainly respondents cannot be said to have committed an error in not permitting him to participate in the stress test in pursuance of tender notice Ann.5.

Consequently, this Court find no substance in the writ petition, the same stands dismissed.