IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD W.P. NO.5494 OF 2018 [GM-RES] BETWEEN:
KARL STORZ ENDOSCOPY INDIA PVT LIMITED HAVING ITS REGISTERED OFFICE AT 11TH FLOOR, DR. GOPAL DAS BHAWAN, 28, BARAKHAMBA ROAD NEW DELHI – 110 001 REP. THROUGH ITS DIRECTOR & AUTHORIZED REPRESENTATIVE MR. RAJESH GARG ... PETITIONER (By Sri. RAJESWARA P.N., ADVOCATE) AND:
THE KARNATAKA STATE DRUG LOGISTICS WAREHOUSING SOCIETY NO.1, DR. SIDDAIAH PURANIK ROAD K.H.B. COLONY, MAGADI ROAD, BANGALORE – 560 079 REP. BY ITS ADDITIONAL DIRECTOR ... RESPONDENT (By Smt. M.C. NAGASHREE, ADVOCATE FOR C/R) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PRAYING TO QUASH THE IMPUGNED ORDER DATED 9.11.2017 VIDE ANNEX-A ISSUED BY RESPONDENT AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This writ petition is listed for orders on I.A. No.2/2018 filed by the petitioner seeking directions to the Respondent to accept “tender for supply of 50 sets of Double Puncture Laparoscope and accessories” in terms of the Supply Order dated 6.10.2017 issued pursuant to the contract dated 27.09.2017. However, with the consent of the learned counsel for the petitioner and Respondent, petition is taken up for final disposal.
2. The undisputed facts are that, after the petitioner was successful in the tender called by the Respondent for supply of 50 sets of Double Puncture Laparoscope and Accessories, the petitioner and the respondent concluded the contract dated 27.09.2017, and further the respondent issued Supply Order dated 6.10.2017 to the petitioner. However, the controversy is because the respondent chose to terminate the contract/Supply Order for the reason that the petitioner could not supply the 50 sets of Double Puncture Laparoscope and Accessories in terms of the Supply Order, and thereafter issue fresh tender. The petitioner has participated in this subsequent tender and is the sole bidder, but at a rate higher than the rates quoted in the first tender.
3. Meanwhile, the petitioner filed this petition impugning the termination order dated 9.11.2017 and for directions restraining the respondent from awarding the contract to third person pursuant to the second tender. In view of the fact that the petitioner is the sole bidder even in response to the second tender, it is submitted on behalf of the petitioner by the learned counsel for the petitioner that the petitioner is willing to supply 50 sets of Double Puncture Laparoscope and Accessories as per the initial Supply Order dated 6.10.2017, asserting that the delay in supply was only because of the delay in importing the machines. It is also submitted by the learned counsel for the petitioner that the petitioner will be able to supply machines in terms of the Supply Order dated 6.10.2017 if an extension of thirty days for importing and supplying the machines and further thirty days is granted for installation of machines. The learned counsel for the respondent submits that even if this arrangement could be made, the respondent would be entitled to levy and recover the penalties/liquidated damages for the delay in supply of the machines pursuant to the Supply Order dated 6.10.2017.
4. The aforesaid circumstances indicate that the respondent has not been successful in securing another bidder despite floating short term tender post termination order dated 9.11.2017 except the bid from the petitioner. The petitioner, without insisting upon the rights under the second tender, is willing to supply the machines in terms of the Supply Order dated 6.10.2017. The only controversy is regards the possible claim for liquidated damages/penalty from the respondent and petitioner’s defense as against such claim. In view of the fact that the respondent is yet to make a demand, there cannot be a foreclosure on such lis in this petition. In these circumstances, it would be just and reasonable for this court to set aside the cancellation order dated 9.11.2017 and reinstate the Supply Order dated 6.10.2017 subject to the condition that the petitioner supplies the 50 sets of Double Puncture Laparoscope and Accessories within a period of thirty days from the date of receipt of certified copy of this order with a further time of thirty days for installation while reserving liberty to the respondent to have recourse to such process as permissible under the contract dated 27.09.2017 to recover permissible liquidated damages/penalty. Further, liberty is also reserved to the petitioner to show cause against any such claim. Furthermore, it is to be observed that if there were to be any delay, despite this order by the petitioner in either supply or installation of the machines, the respondent will be at liberty to initiate such further proceedings as would be legally permissible.
Accordingly, writ petition is disposed of.
SD/- JUDGE AN/-