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2016 (6) TMI 1476 - MADRAS HIGH COURTRejection of bid - rejection on the ground that it has failed to meet the minimum eligibility criteria, as the overdraft facility of Rs. 98.01 Crores availed would come under "short term borrowing" as per Schedule III of the Companies Act, 2013 - HELD THAT:- Clause 7.4 of RFQ speaks about minimum eligibility criteria for financial capability. This has been fixed for the bidding company or any one of its promoters forming a separate category and a bidding Consortium and the lead Consortium member or any one of the promoters of a bidding Consortium. In other words, the criteria has to be complied with either by a bidding Company or any of its promoters or a lead Consortium Member or any one of the promoters of a bidding Consortium - This Court does not find any ambiguity in the above said clause qua a bidding Consortium. The criteria prescribed has to be satisfied either by a lead Consortium member or any one of the promoters of the bidding company or a lead Consortium Member, as the case may be. Now, in the case on hand, it is not concerned with the Lead Promoter of the petitioner. Here, the petitioner claims to be the Lead Consortium Member. This Court also does not find any ground to declare clause 7.4.1.2 as unconstitutional. The petitioner has not demonstrated any arbitrariness or illegality involved. The said clause has been introduced to satisfy with the capability of a bidder. The methodology adopted in fixation of net tangible asset by deducting the current liability from the current asset cannot be found fault with. As per the communication of the petitioner itself, it is agreed to undertake and abide by all the terms and conditions of the RFQ. This Court does not find anything wrong in the definition clause 7.4.1.2 - The petitioner, after having failed to satisfy the minimum eligibility criteria for financial capability, made a belated attempt. Thus, the challenge made on the validity of clause 7.4.1.2 of RFQ is rejected. The petitioner has shown the sum of Rs. 98.01 Crores as short term borrowings under the caption "current liabilities". The records also indicate the amount as "loan payable on demand from banks". Now, the petitioner wants to treat it as a long term borrowing based on the Certificate of his Chartered Accountant. This Court is afraid that as against the records produced by the petitioner itself, no sanctity can be given to the certification of the Chartered Accountant. As rightly submitted by the learned Senior Counsel appearing for respondent No. 2, the petitioner itself has shown its balance sheet the amount inclusive of Rs. 98.01 Crores as "short term borrowings". It is also shown that the sum of Rs. 1,26,88,28,403, which is inclusive of Rs. 98.01 Crores, is "loans repayable on demand". Admittedly, there are number of correspondence between the parties and thereafter only, a decision was made by the 1st respondent after due consideration with its own expert - The submission of the learned Senior Counsel for the petitioner that there is no statutory prescription also cannot be countenanced as we are more concerned with the nature of the borrowings. When once the borrowing would come under "short term and current liability" as indicated in the balance sheet of the petitioner itself, then it cannot make out a case in its favour. On the question of transparency and fairness also, the petitioner has not made out a case. The various communications between the 1st respondent and the petitioner alone would be sufficient factors that ample opportunities have been given to the petitioner. It is not as if the petitioner is not unaware. The petitioner is not a novice. The decision was put up in the website and thereafter, a reasoned order was passed. Hence, this Court does not find any lack of fairness on the part of the 1st respondent. The writ petition stands dismissed.
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