Plaint Revised.docx

IN THE COURT OF THE LD. ADITTIONAL DISTRICT JUDGE SAKET COURT AT NEW DELHI.

IN THE MATTER OF: M/S ECO Paryavaran Engineers & consultant (P) Ltd. E-207, Industrial Area Phase VIII – B (sector-74) Mohali (PUNJAB) – 160071 ----Plaintiff : : VERSUS : : (1) Chairman, Delhi Development Authority Vikas Sadan, Back side of I.N.A market, New Delhi – 110023. (2) The Chief Engineer (electrical), DDA, Vasant Kunj, New Delhi – 110070. (3) The superintending Engineer (Electrical) / EC-2, DDA, Vasant Kunj, New Delhi – 110070. (4) The Executive Engineer (Electrical), Electrical Division No. IV, Madhuban Chowk near Rohini Courts, Rohini, Delhi – 110085 ---- Defendants

PLAINT FILED UNDER SECTION 79 READ WITH ORDER XXVII OF CPC

I) DESCRIPTION OF THE PLAINTIFF:

Plaintiff is a company duly incorporated under the provisions of the Companies Act, 1956 having its registered office at the address mentioned in the cause title and carrying on the business inter alia of............................................................... The present Plaint has been preferred by Mr...................., who is working as .................and is duly authorised by the Plaintiff to file this suit. A Copy of Resolution and Authority is marked as Appendix-A.

II) DESCRIPTION OF THE DEFENDANTS:

(1) Chairman, Delhi Development Authority Vikas Sadan, Back side of I.N.A market, New Delhi – 110023. (2) The Chief Engineer (electrical), DDA, Vasant Kunj, New Delhi – 110070. (3) The superintending Engineer (Electrical) / EC-2, DDA, Vasant Kunj, New Delhi – 110070.

(4) The Executive Engineer (Electrical), Electrical Division No. IV, Madhuban Chowk near Rohini Courts, Rohini, Delhi – 110085

III) BRIEF FACTS OF THE CASE:

a) That a single tender for the work of Design, Supply, Installation and Contraction including operation of 3 Nos. Sewage Treatment Plant, (hereafter referred to as STP) at Rohini and Narela on turnkey basis was called by the Executive Engineer (Electrical)(Hereinafter referred as ‘Defendant No.4’) E-IV vide no. 12/EE/Elect./D4/DDA/2013-14. Sale of bid documents through ETendering mode started on 15.02.2014 and closed on 24.02.2014. The Plaintiff participated in the opening of bid which was opened on 28.02.2014. b) That the bid documents of the Plaintiff were found in order, as such, the bid of the plaintiff was included in the comparative statement prepared by Defendant No.4. As per the said comparative statement, bid amounts quoted by the parties for all the three works are as under: (i)

ECO Paryavaran Engineers

(ii) Fontus Water Pvt. Ltd

= Rs. 5,69,25,000-00 = Rs. 5,31,43,000-00

(iii) Sophisticated Industrial Pvt. Ltd.= Rs.12,38,94,00000

A bare perusal of the comparative statement was duly checked by Assistant Accounts officer, Electrical Division, DDA and Defendant No.4 revealed that M/S. Fontus Water Pvt. Ltd were adjudged as 1st lowest bidder. c) That Defendant no.4 vide his letter dated 25.04.2014 submitted the tenders to the Chief Engineer (Elect) (here in after referred to as ‘Defendant no.2’) with the recommendation that tender bid of M/S Fontus Waters Pvt. Ltd amounting to Rs. 5,31,43,000/- be accepted being the lowest. d) That on receiving the information that the Plaintiff is not the lowest bidder, the Plaintiff applied to the Defendant no.4 vide its letter dated 28.04.2014, sent through Mr. Shivam Singla by hand to return earnest money amounting to Rs.10,13,273/-. e) That due to some intriguing reasons, the composite tender bid of 3 Nos. S.T.P was fragmented in three parts. The bid of the plaintiff for one S.T.P to be installed at Narela was clandestinely reduced to Rs. 1,06,89,000/while in the comparative statement amount mentioned was Rs. 1,42,75,000/-. Letter of acceptance for one S.T.P at Narela was issued to the Plaintiff by Defendant no.4 vide his letter dated 07.06.2014. The Plaintiff was directed to submit Performance Guarantee to the tune of Rs. 5,34,450/- within 15 days. It is pertinent to mention the letter of acceptance (LOA) was issued after expiry of validity period of tenders which was for 90 days after opening of the bids on 28.02.14 i.e. up to 27.05.2014. f) That in response to the aforesaid letter by Defendant No.4, the Plaintiff vide its letter dated 16.06.2014 replied to the Defendant No.4 and stated that no negotiations took place between the Plaintiff and Defendant No.4 as the Plaintiff was aware of the fact that the tender was allotted to M/s. Fontus Water Pvt. Ltd. since they were

the lowest bidders and requested Defendant No.4 to amend the letter as per their quoted price. g) That the earnest money deposit of Rs.3,10,444/- has been forfeited due to non-acceptance of the offer made by Defendant no.4 and non-deposit of Performance Guarantee vide letter dated 07.06.2014 sent by the Defendant No. 4. h) That Gulwant Singh to whom the special power of attorney was given by the Plaintiff vide his letter dated 14.08.2015, told the defendant No.4 to return the Earnest Money of Rs.3,10.444/- as it was the Plaintiff’s right to have that money back. i) That Gulwant Singh again vide his letter dated 30.09.2015 requested Defendant No.4 to refund Rs.3,10,444/- as it is the right of the Plaintiff to claim it and they are also entitled to an interest of 18% on the Earnest Money. j) That the Defendant could not fragment the composite bid for three Nos. S.T.Ps after opening of tender bid and preparation of comparative statement of the tenders. More so, after adjudging tender bid of M/S Fontus Water Pvt. Ltd as the lowest bidder. The aforesaid conduct of the defendant led to the change in the basic structure of the tender which was consciously done to cause harm and injury which falls within the ambit of section 167 I.P.C and the plaintiff is liable to face punishment for this act. k) That although defendant no.4 has recommended the composite bid of M/s. Fontus Water Pvt. Ltd amounting to Rs. 5,31,43,000/- for approval vide letter dated 25.04.14 but what made the Defendant no.4 alter his recommendation, is best known to him.

l) That according to CPWD Works Manual (2014) section 19.5, which reads as under: “19.5 refund of earnest money The earnest money given by all the tenders except the lowest tenders should be refunded immediately after the opening of the tenders, or latest within a week from the date of receipt of tender.” But the defendants did not return the earnest money to the Plaintiff even after preparation of comparative statement of tenders and recommending the tender rates of M/S Fontus Water Pvt. Ltd for acceptance vide letter dated 25.04.14 due to some intriguing reasons. Defendant no.4 did not return the earnest money amounting to Rs 310444/- even after a request was made by the plaintiff vide letter dated 28.04.2014. IV) CAUSE OF ACTION: The cause of action for the present suit arose on 28.04.14 when the Defendant no. 4 did not return the earnest money amounting to Rs 3,10,444/- even after a request was made by the plaintiff vide letter dated 28.04.2014. Further, the defendants fragmented the composite bid after opening of the tender bid and issued a Letter of Acceptance on 07.06.2014 (which is after the after the last day of validity of the tender) for one Sewage Treatment Plant at Narela. The Petitioner was also directed to submit performance guarantee to the tune Rs. 5,34,450/- within 15 days which was per se illegal and when the plaintiff did not accept the conditional offer put forth by the defendants it resulted in forfeiture of the earnest money Deposit of Rs. 3,10,444.00. V) Preliminary objections: A. That the forfeiture of the Earnest Money Deposit (EMD) when the Petitioner is not the lowest tenderer is violative of

the rules stated under CPWD Works Manual (2014). Section 19.5 of the CPWD Works Manual states that “the earnest money given by all the tenders except lowest tenders should be refunded immediately after opening of the tenders, or latest within a week from the date of receipt.” i. That the ratio decidendi in Yogesh Mehta Vs. Custodian Appointed under the Special Court and Ors., 2007 (1) CTLJ 84 (SC) as determined by the Hon’ble Apex Court specifically reads as under: “Forfeiture is permissible only when a concluded contract has come into being and not prior thereto. Therefore, as established by the Hon’ble Supreme Court of India, the same ratio is applicable to the present facts and circumstances and since there was no concluded contract between the respondents and the petitioners, the respondent was not entitled to forfeit the earnest money deposit of the petitioner. The plaintiff would also like to draw the kind attention of this Hon’ble Court to a ruling of the Guwahati High Court in State of Tripura and Anr. v. Bhowmik and Co. 2004(1) CTLJ 523 (Guwahati) where in it has been categorically held as under: b. “………………Rather, the crucial point is whether the petitioner has the right to retain or to forfeit the earnest money. Both the Courts below have given categorical findings that there being no agreement, there was no breach of contract committed by the respondent and also that since there was no breach of contract, the petitioner cannot retain or forfeit the earnest money deposited by the respondent by way of penalty.” Therefore in the present scenario there no legal agreement between the parties hence the forfeiture is illegal and the earnest money has to be returned with immediate effect.

B. That the Defendants clandestinely reduced the bid of the company from Rs. 1,73,64,000/- to Rs 1,06,89,000/- The said offer was 40% less than the bid offered by the petitioner which caused unbearable loss of more than Rs. 66 lakhs to the petitioner . C. That the Defendants fragmented the composite bid for 3 S.T.Ps after opening of tender bid and preparation of comparative statement of the tenders, more so, after adjudging tender, bid of Fontus Water Pvt Ltd. as the lowest bid D. That the defendant considered bid of the plaintiff’s company which was of Rs. 1,42,75,000/with respect to the 1 MLD plant at Narela but ignored the bid of Fontus Water Pvt. Ltd. which was of Rs. 1,37,49,000/-with respect to the same plant. It is emphasized that the lowest bidder has to be selected as L1 and the reason for the aforesaid unjustified conduct of the Defendants is best known to them. E. That the Defendants issued ‘letter of acceptance’ to the plaintiff beyond the validity period of the bid, which undisputedly was up till 27.05.2014 (three months after opening of bid, which was opened on 28.02.2014). ’

VI) VALUATION:

VII) JURISDICTION:

Since the Cause of Action arose in New Delhi and both the plaintiff and the defendants reside in New Delhi, hence this Hon’ble court has jurisdiction over the matter. VIII) DECLARATION: The Plaintiff has not filed any suit against the Defendant and no suit is pending between the parties in respect of the relief being claimed in this suit. IX) LIMITATION: According to section 80 of Civil Procedure Code, 1908, no suit can be instituted against the government or any public officer in respect of any act done by them in such public capacity, until the expiration of two months next after notice in writing has been delivered to or left at their office. Further, for calculating the period of limitation the period of notice must be excluded. The notice has been delivered to the defendant on ___________ and the suit is being filed on __________ and thus the present suit is within limitation period. X) PRAYER: In the fact and circumstances of the case and in the interest of justice this Hon’ble Court may graciously be pleased to: (A) Direct the Respondents to refund balance amount of Earnest Money of Rs. 3,10,444/- with interest @18% P.A from 24.04.2014 to date. (B) And pass such other and further order(s) as this Court may deem fit and proper in the premises of this case.

VERIFICATION I, Mr. __________, S/o______________, Age __ years, Occ.:___________, R/o__________, do hereby declare that he contents of Para III are true and correct to my knowledge and

believed to be true and correct, and the rest of the paragraphs are stated on the basis of information and legal advice received by me and I believe it to be true and verified on this __ day of _______,2016 at New Delhi. PLAINTIFF

LIST OF DOCUMENTS ATTACHED S. No

DATE

DISCRIPTION OF DOCUMENTS

1.

28.02.2014

A copy of the sale bid

2.

Comparative statement of the bids

3.

25.04.2014

Copy of the letter submitting the tenders to Chief Engineer sent by Defendant No. 4

28.04.2014

Copy of letter sent to Defendant No. 4, through Mr. Shivam Singla to return the earnest money amounting to Rs. 10,13,273/-

4.

Copy of authority letter in favour of Mr. Shivam Singla

5. 6.

7.

8.

9.

07.06.2014

Copy of letter of acceptance for one S.T.P at Narela

16.06.2014

Copy of letter requesting Defendant No.4 to amend the letter as per the quoted price of the plaintiff.

14.08.2014

Copy of letter assigning special Power of Attorney to Mr. Gulwant Singh

30.09.2014

Copy of letter sent by Gulwant Singh requesting Defendant No 4 to refund Rs. 3,10,444/- along with 18% interest.

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