Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Tender – The tendering authority had accepted the additional performance security on 17.03.2021 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) General Clauses Act, 1897 (10 of 1897) |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Issue for consideration: Under Clause 2.22.0 (ix) of tender conditions,the appellant was to furnish the additional performance security within aperiod of two working days and this duration of two days was not to berelaxed under any circumstances, whether to construe clause 2.22.0(ix) asrigid and unalterable, even if the justice of the cause warranted otherwise.Tender – The tendering authority had accepted the additionalperformance security on 17.03.2021 i.e. after a period of two workingdays – Propriety:Held: Under Clause 2.22.0 (ix), the appellant was to furnish theadditional performance security within a period of two working days – It isnot disputed that 13.03.2021 was a Saturday and 14.03.2021 was a Sundayand hence two working days would expire only on 16.03.3021 – It is alsonot disputed that there was a nationwide employees strike in the nationalisedbanks on 15.03.2021 and 16.03.2021 – Finally, additional performancesecurity was accepted on 17.03.2021 – This is a case where the appellanthas complied with the condition of furnishing the additional performancesecurity at the earliest possible time, that it could possibly comply – Thatno one can be compelled to perform an impossible task - Lex non cogitad impossibilia - is a well-accepted legal principle – Decision makingauthorities, like the tendering authority here, cannot be expected to turn ablind eye to undisputed – ground realities and compelling necessities, likethe one that presented itself here – Thus, there is no hesitation in holdingthat the deposit of the additional performance security on 17.03.2021 wasin due compliance of Clause 2.22.0 (ix) of the tender conditions – Therewas no breach of that clause. [Paras 6, 9, 23 and 24] Tender – Verifi cation by tendering authority:Held: In the instant case, the tendering authority, after due verifi cation,about the non-operation of the banks on 15.03.2021 and 16.03.2021 due tothe strike by the bank employees, had accepted the additional performancesecurity on 17.03.2021 and awarded the work to the appellant – It is wellsettled by a long line of judgments that the owner or the employer of a project,having authored the tender documents, is the best person to understand andappreciate its requirements and interpret its documents – It has also beenheld that the constitutional courts must defer to this understanding andappreciation of the tender documents by the employer unless there is malafi de or perversity in the understanding or appreciation. [Para 25] |
Judge | Hon'ble Mr. Justice K.V. Viswanathan |
Neutral Citation | 2023 INSC 760 |
Petitioner | M/s Om Gurusai Construction Company |
Respondent | M/s V.n. Reddy & Ors |
SCR | [2023] 11 S.C.R. 379 |
Judgement Date | 2023-08-23 |
Case Number | 5375 |
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