Tender conditions – law does not compel a man to do that which he cannot possibly perform.
Judgment dated 23.8.2023 of the Supreme Court of India
On 18.1.2021, the tenders for the work of construction of land development works of Gadegaon were called and the completion period was six months.
The appellant submitted tender alongwith the details of its account in the Bank of Maharashtra. Moreover, the appellant had to give undertaking for depositing EMD and performance security through the bank account of the bidder.
In the technical bid of three tenderers opened on 8.2.2021, the appellant and the respondent no.1 were found eligible.
In the financial bid opened on 12.3.2021, the bid of appellant was lowest.
Clause 2.22.0(ix) provided the duration of 2 days of opening of envelope-2 for furnishing DD / BG or FDR additional performance security. Failure to do so, will result in forfeiture of EMD and the contractor shall be debarred from participating in any bid of the department for two years. Moreover, the bid of L-2 can be considered for acceptance.
There were holidays of Saturday 13.3.2021 and Sunday 14.3.2021. On 15 and 16.3.2021, there was nation-wide strike of banks employees.
Moreover, the Branch Manager of Bank of Maharashtra – appellant’s Bank had communicated about the strike and that there was no banking transaction on the above days.
On 17.3.2021, security was furnished, the authority accepted the bid of appellant and issued work order on 7.5.2021. Work commencement order was issued on 24.5.2021.
On 29.4.2021, the respondent no.1 filed the writ petition challenging the work order to the appellant.
Relying on Clause 2.22.0 (ix) and treating as an essential condition, the High Court held that the additional performance security of the appellant could not have been accepted after 2 days.
HELD, in view of the above facts, the security deposit furnished on 17.3.2021 was legal and valid. The Civil Appeal was allowed.
M/s. Om Gurusai Construction Company Vs. M/s. V.N.Reddy & Others (Civil Appeal No.5375 of 2023)
