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TMI Blog2020 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Annexure P/2 Notice Inviting Tender (for short 'the NIT') was issued by the 2nd Respondent on 09.09.2019 for Talaipalli Coal Mining Project situated in the Raigarh District of the State of Chhattisgarh, which is under the control of the 3rd Respondent. The tender was floated for construction of the road for Coal Evacuation (Section B) and road for Township approach for Talaipalli Coal Mining Project (Section C). The purpose of construction of the above two roads was quite different insofar as Section B road was to be used for coal evacuation which will be located outside the Township area and can be used by the general public as well, whereas Section C road was to be constructed inside the township area, which was strictly to be a private road. As a matter of fact, when the Goods and Service Tax Act, 2017 was introduced from July, 2017, the rate of taxes payable, it being a work contract, was fixed as 18% (9% CGST + 9% SGST). Subsequently, as per Annexure P/4 dated 22.08.2017, pursuant to the meeting of the GST Council, the rate was modified, segregating the rate of tax with reference to the purpose of the road by virtue of which construction of Section B road; was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the time limit specified to accept the award of Contract or fails to furnish the required Contract Performance Security in accordance with ITB clause 27. (e) If the bidder/his representative commits any frauds while competing for this Contract pursuant to the Fraud Prevention Policy of NTPC. (f) In case the bidder is disqualified from the biding process in terms of section 3 & 4 of the Integrity Pact.: 7. Under clause 23.2.3 of the ITB, if the rate quoted was defective, it was open for the employer to add the left over amount and not to have the quote reduced in any manner. Clause 23.3 of the ITB makes it further clear that if the amount quoted is defective, it was to be properly evaluated to fix the bid price and the evaluated bid price had to be declared to identify the L-1 bidder. This was to avoid any chance for a bidder to quote lesser amount to project himself and claim to be the L-1 bidder. Similarly, if any bidder quotes a higher rate of GST, since the rate of GST is statutory, only the notified rate can be claimed or be paid by the awarder by virtue of the obligation under clause 12.4 of the ITB (that the liability to satisfy the GST shall always be for the award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the said reply, the Petitioner was served with Annexure P/8 dated 09.01.2020 virtually threatening the Petitioner of coercive action and forcing to withdraw the bid with an intent to forfeit the EMD and to blacklist the Petitioner from participating in the future transactions. This made the Petitioner to approach this Court challenging Annexure P/8 and the course of action sought to be pursued by the Respondents. 9. When the matter came up for consideration before this Court on 15.01.2020, urgent notice was issued to the Respondents, also granting interim order of status quo with regard to the forfeiture of the EMD till the next date of hearing, which came to be extended further. On receipt of notice, the Respondents have entered appearance and filed reply, seeking to sustain their action in issuing Annexure P/8, for the reason that the Petitioner had failed to quote the rate of GST despite the clear stipulation in this regard. In the said circumstance, the GST had to be carved out from the rate quoted, thus reducing the quote from Rs. 18,24,58,353.06 to Rs. 15,46,25,723/- which was far below the estimated price (abnormally lower rate), leading to such other consequences as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defective in any manner, at best they could have rejected it by virtue of clause 11.3 of the ITB; under which circumstance, no adverse consequence was to be resulted by way of forfeiture of the EMD or blacklisting of the Petitioner. It is with reference to the 'unauthorised reduction' of the bid amount, that the Respondents were insisting the Petitioner vide Annexure P/5 to withdraw the bid, so as to enable them to forfeit the EMD and to blacklist the Petitioner, which is per se wrong and illegal. 13. The learned counsel for the Petitioner further submits that the objection raised as to the maintainability of the writ petition with reference to the territorial jurisdiction has absolutely no basis as power of this Court is wide enough by virtue of the specific provision under Article 226(2) of the Constitution of India which stipulates that the power of the Court under clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by this Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part arises for the exercise of such power notwithstanding that the seat of such Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In case of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the court where the suit is filed and that contract is found to be invalid, such part of cause of action disappears. The above are some of the connecting factors.: Similarly, reliance is also placed on the verdict passed by the Apex Court in Election Commission of India v. Saka Venkata Rao {AIR 1953 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 and 14} holding that, if the tax rate is not mentioned in the column and if the bid amount is quoted accordingly, it cannot be presumed that the bid amount is inclusive of the tax/GST. 16. After hearing both the sides, we find that there is considerable force in the submissions made by the learned counsel for the Petitioner with reference to the materials brought on record. Insofar as there is no dispute that the GST rate originally notified as per Annexure P/3 came to be modified and segregated into two, vide Annexure P/4 dated 22.08.2017 (stipulating a lesser rate of 12% for construction of roads for public purpose (Section-B) and a higher rate of 18% for construction of roads for internal/private purpose (Section-C), it was obligatory for the Respondents to have provided separate columns in the Annexure P/2 tender issued on 09.09.2019 when Annexure P/4 notification was governing the field. That apart, by virtue of the clear stipulations under clause 12.4 of the ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no consequence as it is a 'constant figure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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