POOJA CERATECH PRIVATE LIMITEDversusOIL AND NATURAL GAS CORPORATION LTD. & ANR.

                          [2021] 9 S.C.R. 441                             441


             POOJA CERATECH PRIVATE LIMITED                               A
                                  v.
   OIL AND NATURAL GAS CORPORATION LTD. & ANR.
           (Special Leave Petition (C) No. 19006 Of 2021)
                       DECEMBER 03, 2021                                  B
         [ M. R. SHAH AND B. V. NAGARATHNA, JJ]
        Tender: Tender process – Security interest deposit – Forfeiture
of – Bidder participated in the tender process – Bidder sought
permission to modify his price bid on the ground of mistake committed
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in offering the price – Howver, the bidder disqualified – Corporation
then decided to invoke the bank guarantees furnished by the bidder
towards the security interest deposit invoking clause 14.5(b) of the
tender document – Writ petition by the bidder challenging the
decision of the Corporation to forfeit the security interest deposit
by invoking the bank guarantees – Writ petition dismissed by the          D
High Court holding that in a contractual matter, the writ petition
u/Art. 226 not maintainable – Correctness of – Held: High Court
justified in dismissing the writ petition – As per Clause 14.5 of the
tender document, the security deposit submitted by the bidders would
be forfeited by the Corporation in the event bidder varies or modifies
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the bid in a manner not acceptable to ONGC during the validity
period or any extension thereof duly agreed by the bidder – Action
of the Corporation in consonance with the terms and conditions of
the tender document – It cannot be said that it was not a case of
modification of the bid but an arithmetical error in calculation which
was sought to be corrected – Furthermore, the request for                 F
modification/variation of the bid offer was made during the validity
period, thus, clause 14.5(b) of the tender document applicable – In
view thereof, order passed by the High Court upheld.
      Kailash Nath Associates Vs. Delhi Development
      Authority and Anr. (2015) 4 SCC 136 – referred to.                  G
                       Case Law Reference
(2015) 4 SCC 136                referred to               Para 5


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                                 441
442             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Special Leave Petition
      (C) No.19006 of 2021.
             From the Judgment and Order dated 27.07.2021 of the High Court
      of Gujarat at Ahmedabad in Special Civil Application No.3569 of 2020.
             Malak Manish Bhatt, Ms. Neeha Nagpal, Vijay Patel, Anubhav
B     Taneja, Advs. for the Appellant.
             Ajay Jain, Jinendra Jain, Ms. Tannu, Ms. Mitika Choudhary, Advs.
      for the Respondents.
             The Judgment of the Court was delivered by
             M. R. SHAH, J.
C            1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 27.07.2021 passed by the High Court of Gujarat in Special
      Civil Application No.3569 of 2020 by which the High Court has dismissed
      the said writ application preferred by the petitioner, the original writ
      petitioner has preferred the present special leave petition.
D            2. The respondent – Oil and Natural Gas Corporation Limited
      issued a tender notice for sale of gas. That the writ applicant participated
      in the tender process by offering its bid. The petitioner received an e-
      mail on 29.11.2019 from one of the officers of the Corporation informing
      that upon evaluation of the technical bids on 17.09.2019, the price bids
      were to be opened on 03.12.2019 at 03.00 PM. That the petitioner
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      requested the Corporation to permit him to modify his price bid on the
      ground that he has committed a mistake in offering the price. Initially, it
      was decided to postpone the opening of the price bids, however, the
      Corporation thereafter decided to open the price bids in absence of the
      writ petitioner. That thereafter the Corporation disqualifying the writ
F     applicant, decided to invoke the bank guarantees furnished by the writ
      applicant towards the security interest deposit invoking clause 14.5(b)
      of the tender document. The writ applicant challenged the decision of
      the Corporation to forfeit the security interest deposit by invoking the
      bank guarantees. The writ petitioner preferred writ petition before the
      High Court under Article 226 of the Constitution of India. By the impugned
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      judgment and order, the High Court keeping the question “whether in a
      contractual matter, the writ petition under Article 226 of the Constitution
      will be maintainable or not?” considered the matter on merits and has
      dismissed the writ petition, which has given rise to the present special
      leave petition.
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POOJA CERATECH PRIVATE LIMITED v. OIL AND NATURAL                                   443
    GAS CORPORATION LTD. & ANR. [M. R. SHAH, J.]

      3. We have heard Shri Malak Manish Bhat, learned Advocate                     A
appearing on behalf of the petitioner.
        4. Shri Bhat, learned Advocate appearing on behalf of the petitioner
has heavily relied upon the decision of this Court in the case of Kailash
Nath Associates vs. Delhi Development Authority and Anr.,
(2015) 4 SCC 136 and has submitted that as held by this Court and                   B
considering Section 74 of the Indian Contract Act unless there is a loss
caused and/or established and proved, there is no question of forfeiting
the security deposit. It is submitted that the purpose of security deposit
is to secure the payment after entering into the contract and during the
contract there is any failure on the part of the contractor to fulfill his part
of the contract.                                                                    C

       5. Having gone through the decision of this Court in the case of
Kailash Nath Associates (supra) and considering the relevant clause
of the tender document, more particularly, Clause 14.5, we are of the
opinion that the action of the Corporation is absolutely in consonance
with the terms and conditions of the tender document. As per Clause                 D
14.5, the security deposit submitted by the bidders shall be forfeited by
the Corporation in the event…… “bidder varies or modifies the bid in a
manner not acceptable to ONGC during the validity period or any
extension thereof duly agreed by the bidder”.
      6. Then it is submitted that it was not a case of modification of the         E
bid but it was only an arithmetical error in calculation which was sought
to be corrected. The aforesaid is factually not correct. In the
communication dated 03.12.2019, it is submitted that there was a
misunderstanding in the price calculations of the bidding price.
       7. Then it is next submitted that even the offer was not varied              F
during the validity period. However, it is required to be noted that the last
date of submitting the tender was 17.09.2019 and the opening date was
17.09.2019. The request for modification/variation of the bid offer was
made on 03.12.2019. Therefore clause 14.5(b) of the tender document
shall be applicable.
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      8. No error has been committed by the High Court in dismissing
the writ petition, hence this special leave petition is dismissed.

Nidhi Jain                                                    Petition dismissed.

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