Judgment:
R.R. Prasad, J.
1. The Heavy Engineering Corporation Limited, a Government or India undertaking, Ranchi has been declared sick Company by the BIFR in the year 1992 and therefore, revival and financial restructuring of the Company was approved in the year 1996 but the scheme failed and, therefore, BIFR in the year 2004 recommended for its winding up and accordingly, the matter was referred to this Court to proceed with as per the provision of the Companies Act. But said recommendation was challenged before this Court by the Company, vide W.P.(C) No.4513 of 2004. Both the matters were taken up together by this Court and this Court called upon stake holders of the Company to file affidavit as to whether they want to revive the company. Upon it, Union of India as well as Government of Jharkhand filed affidavit showing their desire to revive the Company. Thereupon this Court vide order dated 10.2.2005 allowed the CMD of the Company to negotiate with the Government/non-Government Organization/ Institution/ Hospital for handing over the Management of its Hospital and School and to finalize the terms and conditions with a rider that before handing over the Management, the Company will take permission of the Court. Subsequently, Central Government also came forward with a scheme for revival and financial restructuring of the Company whereby financial help and other reliefs were to be given and the Company was allowed to mobilize resources of Rs 330 crores approximately by taking measures such as transfer of residential and non-residential building to the State Government including settlement of commercial and institutional areas and privatization of the school and hospital etc. Accordingly, this Court, vide order dated 23.3.2006 allowed the Company to mobilize resources by privatizing the school and hospital. Pursuant to that decision, Ministry of Heavy Industries and Public Enterprises, Government of India constituted a committer for effecting change in the Management of the hospital and its school. The said decision was communicated by the Ministry of Heavy Industries and Public Enterprises, vide letter dated 12.9.2005 (Annexure D to the counter affidavit). Under the said decision, the committee was supposed to examine the offer and to finalize it with the consultation of the financial institution and to submit its recommendation to the Company for final decision to be taken by the Board. Accordingly, a notice inviting tenders for taking over the Management of the Heavy Engineering Corporation's Hospital was issued on 13.10.2005. Under the said notice, bid was invited in two parts; (i) technical bids and (i) financial bids.
2. Pursuant to that, petitioner and three other institutions participated in the bid by submitting their tenders by depositing the earnest money of Rs. 20 lacs. The Committee first took up the matter relating to technical bids whereby members of the Committee held discussions with bidders In order to settle the terms and conditions. After discussion, certain terms and conditions were finalized and one of the condition which was finalized by the Committee was that payment of the premium was to be made in two equal instalments. The first instalment was to be paid within 90 days of finalization of the bid and the second instalment not later than six months from the date of finalizing the bid. Thereafter the price bids were opened in presence of the representatives of the bidders and the petitioner was found to be the highest bidder as he had offered a sum of Rs. 26.10 crores but it is the case of the petitioner that contrary to the decision taken by the High Power Committee regarding payment of premium in two instalments, the General Manager of the Company wrote a letter on 5.4.2006 (Annexure 4) informing therein that the Management of the Heavy Engineering Corporation's Hospital will be handed over to the petitioner after making payment of one time premium and completion of other requisite formalities. Subsequently, the Management of the Heavy Engineering Corporation vide its letter dated 25.2.2006 ( Annexure 5) directed the petitioner to deposit Rs. 26.10 crores within 30 days which, according to petitioner, was quite wrong as according to terms mutually agreed at the time of finalization of the bid, the petitioner was supposed to make payment of the premium in two instalments and, therefore, petitioner made representation before the Management of the Heavy Engineering Corporation requesting that hey may be allowed to pay half of the amount as per the terms and conditions agreed upon but the Management never acceded to the request of the petitioner and, therefore, there was no option left with the petitioner but to yield to the pressure and, therefore, the petitioner decided to give a cheque of Rs. 26.10 crores in favour of the Heavy Engineering Corporation on 31.7.2006 but the same was not accepted and instead of that, the Management issued a letter dated 1/2.8.2006 (Annexure 8) whereby it was communicated that offer for change of Management of the Heavy Engineering Corporation made to the petitioner is cancelled on account of nonpayment of the premium on stipulated date and also communicated that the Bank guarantee of Rs. 20 lacs is under the process of being invoked.
3. Being aggrieved with the said decision, this writ application has been filed.
4. Learned Counsel appearing for the petitioner submits that once it was decided by the High Power Committee that payment of the petitioner was to be made in two equal instalments; the first instalment was to be paid within 90 days of the finallzation of the bid and the second instalment within six months from the date of finalizing the bid. It was not open for the respondents to change the said condition unilaterally and to take decision arbitrarily that premium is to be made in one instalment and that too within such short span of time which would have been not possible as huge amount was involved and, therefore, action of the respondents is not only arbitrary but also unreasonable and, therefore, it is violative of Article 14 of the Constitution of India.
5. As against this, learned Counsel appearing for the Heavy Engineering Corporation submits that it is true that High Power Committee while finalizing the bid held discussion with the bidders to laid down terms and conditions and, accordingly, they agreed to certain terms and conditions and one of the conditions was that-payment is to be made in two equal instalments but that decision of the Committee was subject to approval of the Board of Directors but the Board of Directors did not find decision of the Committee in consonance with the terms of the tender notice which speaks about one time payment of the premium. However, the petitioner was given opportunity to make payment of one time premium by 30.5.2006 to which petitioner agreed and, therefore, made a request to give some more time so that payment could be made and considering to that request, time was given till 31.7.2006 for making payment but when the payment was not made, offer made to the petitioner was cancelled and, therefore, under these situations, the petitioner is not entitled to get any relief whatsoever.
6. Learned Counsel also submits that against the decision taken by the Management of revoking of the offer and also invoking of the Bank guarantee, the petitioner had filed a suit, bearing Title Suit No.213 of 2006 in the court of 1st Subordinate Judae. Ranchi and also filed an application for restraining the Management to invoke Bank guarantee but when the injunction petition was rejected, the petitioner withdrew the suit and then filed writ application before the Patna High Court. However, it was replied that the suit had been filed for limited prayer and that too under wrong advice but as the suit was not decided on its merit, any order passed in the Title Suit will not have any adverse effect and moreover, the writ application filed before the Patna High Court has already been recalled.
7. Having heard learned Counsel appearing for the parties it does appear that pursuant to decision taken by the Central Government relating to revival and financial restructuring of the Company, the Company was allowed to mobilize the resources by various means including privatization of the school and hospital which decision got approval by this Court. In furtherance of the said decision, the Central Government constituted High Power Committee for settlement to finalize the terms and conditions under which Management of the hospital/school is to be transferred and for that, certain procedures and guidelines were also issued which form part of the letter dated 12.9.2005 (Annexure D) under which it had been communicated about the constitution of the Committee and as per the guidelines given under Annexure A to Annexure D, any decision taken by the Company needs to be placed before the Board for final decision. In order to implement the decision to hand over the Management to any other competent institution, notice was issued inviting tenders for settlement of the hospital for long term lease on one time pemium. Pursuant to that, petitioner and others submitted their tenders which were required to be given in two parts; one being technical and other being financial. When the matter relating to technical bid was taken by the Committee, discussion held with the bidders with respect to the terms and conditions of settlement and on amongst them, one of the terms decided was that payment is tobe made in two equal instalments but when the decision was placed before the Board, the Board did not find the said decision in consonance with the condition of tender inviting notice as under the notice stipulation was of one time payment of the premium. Accordingly, the petitioner who was found highest bidder was communicated under letter dated 25.2.2006 (Annexure 4) that the Management intends to accept the bidder's offer for taking over the Management subject to one time payment of Rs. 26.10 crores within 30 days. Receipt of the letter was acknowledged by the petitioner with thanks but subsequently the petitioner made a request to allow him to make payment in two instalments which matter was again placed before the Board, but the Board again rejected the request. However, the petitioner was asked vide letter dated 22.5.2006 to deposit Rs. 26.10 crores by 31.5.2006 with an warning that if the deposit is not made, the Company would be forced to withdraw the offer made to the petitioner for change of Management of the Heavy Engineering Corporation's Hospital. Thereafter the petitioner by his letters dated 27.5.2006 and 30.6.2006 made request for intimating him about the last date of payment and subsequently the petitioner vide his letter dated 12.7.2006 informed the Management that they are making sincere effort to pay the entire amount before 30.7.2006. However, at the same time a request was made to extend the date of deposit till 30.8.2006 by way of good gesture. Thereupon, the Board extended time till 31.7.2008 but when the payment was not made till 31.7.2008, a letter dated 1.8.2006 was issued whereby offer made by the petitioner was cancelled and thereafter Bank guarantee of Rs. 20 lacs seems to have been invoked which decision in the facts and circumstances can never be said to be arbitrary or unreasonable particularly when the petitioner had himself agreed to make payment of Rs. 26.10 crores by 31.7.2008 and as such action of the respondents seems to be quite fair and reasonable and in that event there has been no infringement of the fundamental right of the petitioner as enshrined under Article 14 of the Constitution of India.
8. In this view of the matter, I do not find any merit in this application. Hence, it is dismissed.