Case Details M/s Om Gurusai Construction Company vs M/s V.N. Reddy & Ors.

Court

Supreme Court of India

Date

23 August 2023

Case No.

Civil Appeal No. 5375 of 2023

Result

Allowed

Bench

J.K. Maheshwari, K.V. Viswanathan

Citation

[2023] 11 S.C.R. 379 : 2023 INSC 760

Issue for consideration

Under Clause 2.22.0 (ix) of tender conditions, the appellant was to furnish the additional performance security within a period of two working days and this duration of two days was not to be relaxed under any circumstances, whether to construe clause 2.22.0(ix) as rigid and unalterable, even if the justice of the cause warranted otherwise. Tender – The tendering authority had accepted the additional performance security on 17.03.2021 i.e. after a period of two working days – Propriety:

Headnote

Held: Under Clause 2.22.0 (ix), the appellant was to furnish the additional performance security within a period of two working days – It is not disputed that 13.03.2021 was a Saturday and 14.03.2021 was a Sunday and hence two working days would expire only on 16.03.3021 – It is also not disputed that there was a nationwide employees strike in the nationalised banks on 15.03.2021 and 16.03.2021 – Finally, additional performance security was accepted on 17.03.2021 – This is a case where the appellant has complied with the condition of furnishing the additional performance security at the earliest possible time, that it could possibly comply – That no one can be compelled to perform an impossible task - Lex non cogit ad impossibilia - is a well-accepted legal principle – Decision making authorities, like the tendering authority here, cannot be expected to turn a blind eye to undisputed – ground realities and compelling necessities, like the one that presented itself here – Thus, there is no hesitation in holding that the deposit of the additional performance security on 17.03.2021 was in due compliance of Clause 2.22.0 (ix) of the tender conditions – There was no breach of that clause. [Paras 6, 9, 23 and 24] Tender – Verification by tendering authority:

Held: In the instant case, the tendering authority, after due verification, about the non-operation of the banks on 15.03.2021 and 16.03.2021 due to the strike by the bank employees, had accepted the additional performance security on 17.03.2021 and awarded the work to the appellant – It is well settled by a long line of judgments that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents – It has also been held that the constitutional courts must defer to this understanding and appreciation of the tender documents by the employer unless there is mala fide or perversity in the understanding or appreciation. [Para 25] LIST OF CITATIONS AND OTHER REFERENCES

Mahanth Ram Das vs. Ganga Das [1961] 3 SCR 763; Raj Kumar Dey and Others vs. Tarapada Dey and Others (1987) 4 SCC 398 : [1988]

1 SCR 118; Jagdish Mandal vs. State of Orissa and Others (2007) 14 SCC

517 – relied on.

JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT K. V. VISWANATHAN, J. 1. Leave granted. 2. This case brings back to memory the classic words of Justice M. Hidayatullah (as the learned Chief Justice then was) in Mahanth Ram Das vs. Ganga Das, [1961] 3 SCR 763. Though it was in the context of the Code of Civil Procedure, dealing with the powers of a Civil Court, the following passage does repay study for the present facts too: “… Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoi

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