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TMI Blog2016 (5) TMI 1622X X X X Extracts X X X X X X X X Extracts X X X X ..... from some overt act. Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known existing legal right. Thus, benefit, claim or privilege, which, except for such a waiver, the party would enjoy. Even in a case if a plea is taken and evidence is not led, it would amount to be a waiver. Applying the said principle to the present context, it appears that by amended purchase order dated 20.04.2015 by reducing the quantity of transformer to be supplied by the petitioner, the opposite parties had waived the condition of initial purchase order dated 18.06.2014 with regard to the quantity to be supplied pursuant to the initial contract, and as such the opposite parties had acted upon with the amended purchase order by accepting the supply of reduced quantity of transformers. Therefore, the opposite parties are estopped from taking any further coercive action against the petitioner. On perusal of the impugned order, it appears that before debarring the petitioner to participate in future tender for a period of three years, no notice of opportunity was given to him before passing such order. Even otherwise, no notice or opportunity was ever given to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin three months, the second phase within six months and the third phase within nine months i.e. by 17.03.2015. For the said purpose the petitioner furnished bank guarantee to the tune of 10% of the purchase order value which comes to about Rs. 84 lakhs. Since the petitioner failed to make the supplies in the first two phases, notice for cancellation of the purchase order and for forfeiture of performance security for non supply of transformer was issued on 03.02.2015. Pursuant to the said communication, the petitioner offered to supply certain lesser numbers of transformers i.e. only 60 numbers of 63 KVA and 80 Nos. of transformers of 100 KVA. Then on 12.02.2015 the petitioner made a representation to reduce the quantity to be supplied by it as it was unable to supply the balance transformers. By 17.03.2015, which was the last date for supply of transformer, the petitioner did not supply any transformers. Pursuant to the aforesaid request made by the petitioner, the opposite party-Corporation amended the purchase order on 20.04.2015 and allowed the petitioner to supply 80 Nos. of transformer of 100 KVA and 60 Nos. of transformers of 63 KVA. The opposite party-Corporation got the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self offered to pay the amount in lieu of the bank guarantee furnished by it, because encashment of the bank guarantee would adversely affect the reputation of the petitioner. It is thus submitted that the letter of encashment of bank guarantee has been sent after the admission of the petitioner with regard to the same. It is further submitted that time is the essence of the contract, and since the petitioner did not supply the transformers within time i.e. by 17.03.2015, encashment of the bank guarantee, as well as debarring the petitioner from participating in any tender for a period of three years, is fully justified and that the order dated 20.04.2015 was not in the form of extension of contract/purchase order but only to be treated as a fresh purchase order, independent of the earlier contract/purchase order. To substantiate his contention, reliance has been placed on the judgment of the Apex Court in Kulja Industries Limited v. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731. 5. Having heard learned counsel for the parties and after going through the records, it appears that the opposite party, pursuant to the e-Tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase order dated 20.04.2015 by reducing the quantity of transformer to be supplied by the petitioner, the opposite parties had waived the condition of initial purchase order dated 18.06.2014 with regard to the quantity to be supplied pursuant to the initial contract, and as such the opposite parties had acted upon with the amended purchase order by accepting the supply of reduced quantity of transformers. Therefore, the opposite parties are estopped from taking any further coercive action against the petitioner. 9. As such, in our view, debarring the petitioner for a further period of three years, despite the terms of the initial purchase order dated 18.06.2014 having been amended by the subsequent purchase order dated 20.04.2015, cannot be justified in law. Debarment of the petitioner, without following due procedure of law, and without complying with the principles of natural justice, amounts to blacklisting him, which is also not permissible under law. 10. In M/s. Erusian Equipment Chemicals Ltd. (supra), the Apex Court held that fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the black list ..... X X X X Extracts X X X X X X X X Extracts X X X X
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