NDLI: National Highways Authority of India Vs. Gwalior Jhansi Expressway Limited

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Tenders – Agreement between the appel lant and the respondent for widening the existing two-la ne portion of National Highway No.75 to four lanes
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Arbitration and Conciliation Act, 1996 (26 of 1996)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Tenders – Agreement between the appel lant and therespondent for widening the existing two-la ne portion of NationalHighway No.75 to four lanes – Appellant alleged breaches on partof the respondent – Arbitral Tribunal constituted – Appellant movedapplication u/s.17 of the 1996 Act before the Tribunal seekingpermission to complete the balance work of the project in view ofloss to the public at large – Respondent also filed application u/s.17 – Arbitral Tribunal disposed of the applications by commoninterim order dtd. 23rd July 2016 – Appellant issued a tender forthe balance work – In consonance with the tender documents,technical and financial bids were opened – Respondent movedapplication before the Tribunal u/s.17, seeking, inter alia, permissionof the Tribunal to complete the balance work at its risk and cost–Tribunal allowed the application – Appeal filed by appellant beforethe High Court, dismissed – Plea of appellant that the respondentcannot be permitted to exercise Right Of First Refusal (ROFR)without participating in the bidding process – On appeal, held:Right of the respondent to match the bid of L-1 or to exercise ROFRwould come into play only if the respondent was to participate inthe tender process pursuant to the notice inviting tenders from theinterested parties – Respondent was required to participate in thetender process by submitting its sealed bid (technical and financial)– Having failed to participate in the tender process, despite theexpress terms in the tender documents, validity whereof was notchallenged, the respondent cannot be heard to contend that it hadacquired any right whatsoever – There was nothing in theapplication (filed by the respondent u/s.17) to even remotely suggestthat the respondent had prayed that it be exempted from participatingin the proposed tender process as such, and could yet exercise ROFRbefore the letter of intent was to be issued to the lowest bidder Exemption in this regard cannot be inferred and has to be express –No express exemption was granted to the respondent vide order ofthe Tribunal dtd. 23rd July, 2016 to exercise ROFR or match thelowest bid without participating in the bidding process – Decisionof the Tribunal as confirmed by the High Court cannot becountenanced – Arbitration and Conciliation Act, 1996 – ss.9, 17and 37(2)(b).
Judge	Hon'ble Mr. Justice A.M. Khanwilkar
Neutral Citation	2018 INSC 609
Petitioner	National Highways Authority Of India
Respondent	Gwalior Jhansi Expressway Limited
SCR	[2018] 9 S.C.R. 1024
Judgement Date	2018-07-13
Case Number	3288

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National Highways Authority of India Vs. Gwalior Jhansi Expressway Limited

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National Highways Authority of India Vs. Gwalior Jhansi Expressway Limited

National Highways Authority of India Vs. Gwalior Jhansi Expressway Limited

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