Mahanagar Telephone Nigam Ltd v. M/S Haryana Telecom Ltd

SIGNING OF CONTRACT: 28.[1] The issue of Purchase Order shall constitute the award of contract on the bidder. 28.[2] Upon the successful bidder furnishing the performance security for the first year purchase pursuant to Clause 27 the purchaser shall discharge 50% of the bid security. The remaining bid security shall be discharged upon the bidder furnishing the performance security for the last purchase order.”

7. The General Conditions of Contract annexed to the NIT stipulated various terms and conditions relating to payment terms, sales tax etc., The relevant clauses are extracted below “11.

PAYMENT TERMS … 11.[3] (i) (a) Sales tax on Central Government purchases shall be paid at the prescribed rate against "D" form for despatches outside the State of manufacture. Within the state of manufacture, the Sales Tax will be paid on actuals on presentation of the original voucher. (b) Any increase in taxes and other statutory duties/levies after the expiry of the delivery date shall be to the contractor‟s account. However, benefit of any decrease in these taxes/duties shall be passed on to the Purchaser by the supplier. … 12.[1] (i) PRICES (a) Prices charged by the Supplier for Goods delivered and services performed under the Contract shall not be higher from the prices quoted by the Supplier in his Bid. (b) In case of revision of Statutory Levies/Taxes during the supply period the Purchaser reserves the right to ask for reduction in the prices. (ii) (a) Price once fixed will remain valid for the period of delivery. Increase and decrease in taxes and other statutory duties will not affect the price during this period. (b) In case of delayed supplies after delivery period the advantage of reduction of tax/duty would be passed on to the purchaser and no benefit of increase in price will be permitted to the supplier if there is any increase in tax/duty. …

13.

CHANGE IN PURCHASE ORDERS: 13.[1] The purchaser may, at any time, by a written order given to the Supplier, make changes within the general scope of the contract in any one or more of the following. (a) Drawings, designs or specifications, where Goods to be furnished under the Contract are to be specifically manufactured for the Purchaser; (b) the method of transportation or packing;

(c) the place of delivery; or

(d) the services to be provided by the Supplier.

13.[2] If any such change causes an increase or decrease in the cost of, or the time required for the execution of the contract an equitable adjustment shall be made in the Contract Price or delivery schedule, or both, and the Contract shall accordingly be amended. Any proposal by the Supplier for adjustment under this clause must be made within thirty days from the date of the receipt of the change in order.

8. Letters of Intent were issued on 3rd June 1996, 15th October 1996 & 22nd January, 1997. Thereafter, three purchase orders were placed by MTNL on HTL dated 12th August 1996, 15th November 1996 and 5th March

1997. In all three purchase orders, the following stipulation was made in respect of sales tax. “Sales Tax Inclusive. Issue of „C‟ forms not applicable as DOT prices are all inclusive”

9. When the purchase orders were placed by MTNL with the abovementioned clause, HTL challenged the same and sought clarifications from MTNL, as the clause relating to sales tax was in contradiction with the clause contained in the General Conditions of Contract as provided in the NIT. The case of HTL was that the prices were quoted on the basis of „C‟ forms to be issued by MTNL, which would in effect mean that HTL would be liable to pay only 4% sales tax instead of 10% thereby giving it a benefit of 6% sales tax. If „C‟ forms were not to be issued then the prices would have been higher. After the price was fixed and the bids were accepted, changing of this condition for MTNL supplies was impermissible. It relied on letter dated 10th June, 1996 issued by DOT, which reads as under: “ Sub: Clarification regarding rates mentioned in the Purchase Order by DoT Hqrs. As “all inclusive”

1. The present practice is to finalize the rates of telecom material/equipment as all inclusive i.e. the ordering prices are inclusive of basic price, excise duties, sales tax, packing and forwarding, freight and insurance and all other government levies and taxes.

2. It has, however, been brought to notice of this office that some of the units are not making payments at the rates mentioned in the POs and sales tax is either not reimbursed or is reimbursed partially. The matter has been considered and it is clarified that, the suppliers may be paid at the rates indicated as “all inclusive” in the purchase orders regardless of the fact that each of them may be paying different rates of taxes and duties. The payment may, however, be released following departmental procedure and on submission of the documentary proof as required.”

10. HTL also relied upon the further clarification given by DOT dated 7th February, 1997 to the effect that MTNL ought to issue C-Forms or would be liable to reimburse the supplier. The said clarification is set out hereinbelow: “……….. Subject: Clarification in respect of „Octroi‟ charges-Sales Tax against Purchase Orders issued by MTNL. This office has been in receipt of request from MTNL seeking clarification in respect of issue of exemption certificate for octroi charges and availing of concessional sales tax against Purchase Orders placed by MTNL. Following decision is hereby conveyed:- Purchase Orders are placed by MTNL for MTNL where MTNL is not in a position to issue requisite certificate for claiming concessional rates of sales tax (Form „C‟), the supplier shall be reimbursed the difference between the actual sales tax paid by him and that due under concessional rates (at present 4%) had the certificate. Similarly, if octroi exemption certificate is not issued by MTNL, the actual octroi paid by the supplier will be reimbursed. Such reimbursement of sales tax and octroi shall be considered only if documents establishing actual payments are produced along with the claim. This has got the concurrence of DOT Finance.”

11. MTNL, however, did not agree to the clarification by DOT. Since the issues relating to sales tax were not resolved, HTL invoked arbitration. Ld. Arbitrator framed the following issues. “a. Whether any 'C' form was required to be give by MTNL [Respondent] to the Claimant company for the supplies made by the Claimant company as Claimed by the Claimant? b. The Respondent has alleged that they stated in their POs that the price quoted were all inclusive and no 'C' form will be issued. It was for the Claimant company to supply the material either without insisting for the 'C' form or to reject the offer for supply. c. Whether any 'C' form has been issued by the MTNL against any purchase order as stated by the Respondent. If so, under which provision this has been issued? d. In the event of the inability of MTNL to issue 'C' form for POs where these have not been issued, what could be the alternative course? e. How much is the amount, if any, under dispute towards the additional ST which the Claimant has to pay to the ST department relating to these POs. What is the mechanism for verifying this? f. Whether any interest is to be paid by the Respondent to the Claimant as Claimed by the Claimant? g. Who is to bear the cost of proceedings in the case? How much is the cost of proceedings?”

12. Findings of Ld. Arbitrator on issues a, b, c, d & e were as under:  The contract stood concluded with unconditional acceptance of the APOs and letters of intent dated 3rd June 1996, 15th October 1996 and 22nd January 1997.  The terms and conditions as contained in the APO/LOI were binding on the parties. The clarification issued by DOT was also clear.  The contention of HTL that capriciously modifying the price clause amounts to unjust enrichment was upheld.  MTNL had to furnish the requisite „C‟ form and since it could not do so, it was obliged to reimburse the difference of 6%.  On issue no.

(c) it was held that MTNL was issuing „C‟ form as per the tendered terms and conditions. As issue (f), the claim for interest was rejected. The operative portion of the award reads as under: “Keeping in view the case history, arguments and submissions etc. made by the HTL (Claimant-Supplier) and the MTNL (Respondent) it is concluded that MTNL had to furnish requisite certificates (C-Forms) to the Claimant against all the three Purchase Orders dt. 12.08.1996, 15.11.1996 & 05.03.1997 placed on the Claimant for claiming concessional rate of ST (4%). Failing which the supplier (HTL) shall be reimbursed the difference between the actual sales tax paid (10%) by the supplier (HTL) and that due under concessional rate of sales tax (4%) subject to the condition that, this differential will not exceed 6% under any circumstances. Accordingly, an amount of ₹ 2,39,45,072/- (₹ Two crore thirtynine lac fortyfive thousand and seventy two only), claimed to have been paid towards additional sales tax of 6 % to the ST Authority (STA) due to nonfurnishing of requisite 'C' forms by the MTNL, becomes payable to the Claimant subject to production of all the relevant documents clearly establishing actual payment of such a sum to the STA, before MTNL (Respondent), within two months of submission of such documents after the detailed award is announced. The detailed award is made on this 28th day of July 2012 at New Delhi.”

13. Mr. Sikri, ld. Counsel appearing for MTNL submits that the final contract being the purchase order, the Ld. Arbitrator committed an error in holding that the supplier is entitled to reimbursement.

14. Mr. Sikri further submits that the grant of reimbursement of 6% sales tax when admittedly the said concession given by the Sales Tax Department was withdrawn qua MTNL is contrary to the expressed terms of the purchase order. He submits that MTNL cannot be made to bear the burden of the withdrawal of the concessional sales tax. DOT and MTNL cannot be equated in this manner. Further, the purchase order was clear and hence the supplier supplied the goods with open eyes.

15. Mr. Sikri relies upon the following two judgments.  Alcatel India Limited v. Mahanagar Telephone Nigam Limited & Anr., 2001 (59) DRJ 393 (DB)  Security Printing & Minting Corporation of India Limited & Anr. v. Gandhi Industrial Corporation, (2007) 13 SCC 236

16. Mr. Abhishek Sharma, ld. counsel for HTL submits that if the benefit given to MTNL was withdrawn by the sales tax department, MTNL ought to have borne the liability, and the same could not have been passed on to HTL. He further relies on the arguments made by Ld. counsel for CMI in OMP (COMM) 198/2016.

17. Ld. counsel for CMI had submitted that the contracting parties being DOT and the suppliers, the LOI was the contract between the parties. MTNL, which was merely the beneficiary of the contract, could not change the terms and conditions of the same. The definition of purchaser being DOT acting on behalf of the President of India, MTNL had no locus to alter the terms of the contract. Purchase orders placed by MTNL are merely internal arrangement between DOT and MTNL, to which the supplier cannot be made privy. It was CMI‟s further submission that the issuance of the purchase order was merely a formality and nothing more. The purchase order had to be interpreted in conformity with the tender and not in a manner alien to it. The purchase order could also not derogate from the terms and conditions of the tender. To the extent that there was no contradiction, the tender conditions ought to be binding on MTNL.

18. It is submitted by HTL that the issuance of purchase orders was only a formality as the concluded contract was the NIT/LOI. Analysis

19. The entire dispute calls into question as to what constitutes the binding contact between the parties. While it is the case of HTL that the LOI read with the NIT constitutes the binding contract, it is the case of MTNL that the purchase order constitutes the binding contract. This issue can be resolved by a perusal of the various clauses in the bid documents. A perusal of the definitions shows that the APO is the intention of the DOT to place the purchase order. The purchase order is the order placed by the purchaser on the supplier. The definition of „purchase order‟, however, is clear and states that “the purchase order shall be deemed as “Contract” appearing in the document”. Thus, the definition of „purchase order‟ brooks no ambiguity.

20. The definition of „contract price‟ is also “the price payable to the Supplier under the purchase order”. Thus, while the NIT, APO, LOI, etc. could constitute the background documents, the final contract is the purchase order.

21. HTL, was aware of the stipulation relating to sales tax when the first purchase order was placed, which clearly provided that the prices were inclusive of sales tax and issue of „C‟ forms was not applicable. Further, clause 16 of the purchase order reads as under: “16.

OTHER GENERAL/COMMERCIAL TERMS AND

22. Thus, once the final purchase order was placed, it was only in respect of “other general/commercial terms and conditions” that the DOT tender and LOI were made applicable. Though the purchase order is referred to as a formal purchase order, it was not merely a formality. The use of the words „formal purchase order,‟ in fact, meant that the said documents contained the final terms and conditions and the initial documents were tentative in nature. This interpretation is also supported by clause 27 & 28 of the NIT, which makes it clear that the APO is merely „the intention of the purchaser to enter into the contract.‟ Clause 28 stipulates that the issue of the purchase order „shall constitute the award of contract on the bidder‟. Thus, the contract, which forms the basis of the arrangement between the parties, is the purchase order and it is only to the extent that the purchase order does not have stipulations that other general/commercial terms, were to be governed by the DOT‟s tender.

23. The clarification given by DOT, that MTNL ought to reimburse the sales tax, was urged to constitute a binding direction by the DOT to MTNL. However, the board of MTNL did not accept the said clarification and took a decision that if the purchase order was clear, no reimbursements were to be made. Since the sales tax authorities had withdrawn the concessional tax benefits to MTNL, it cannot be said that the stand of MTNL is contrary to the tender conditions. Moreover, HTL had entered into the contract with open eyes. There being no ambiguity in the sales tax related conditions, in the purchase order, HTL had the option of not making supplies until the clarification, which it had sought, was issued. HTL understood that at the time when the purchase order was placed, though it sought reimbursement/issuance of form „C‟, that the clarification may, in fact, not be forthcoming from MTNL. Reliance on clause 13.[1] of the general/commercial conditions of the contract is also misplaced as the same deals with „changes in purchase orders‟. This clause applies after the purchase order has come into existence and not before. Even under this clause, the purchaser has the freedom to change the drawings, designs, and specifications, method of transportation or packaging, the place of delivery and the services to be provided by the supplier. This clause does not mean that the purchase orders cannot be different from the letter of intent or the tender conditions. There could be various supervening facts such as imposition of tax and regulatory changes, especially in a tender envisioning multiple supplies over a period of two years. The tender makes space for such changes and hence the definition of purchase order as the final contract. In fact, the spirit of the tender is also clear from clause 11.[3] and 12.[1] of the General Conditions of Contract annexed with the NIT, which read as under: “11.[3] (i) (a) Sales tax on Central Government purchases shall be paid at the prescribed rate against "D" form for despatches outside the State of manufacture. Within the state of manufacture, the Sales Tax will be paid on actuals on presentation of the original voucher.” (b) Any increase in taxes and other statutory duties/levies after the expiry of the delivery date shall be to the contractor‟s account. However, benefit of any decrease in these taxes/duties shall be passed on to the Purchaser by the supplier. 12.[1] (i) (a) Prices charged by the Supplier for Goods delivered and services performed under the Contract shall not be higher from the prices quoted by the Supplier in his Bid. (b) In the case of revision of Statutory Levies/Taxes during the supply period the Purchaser reserves the right to ask for reduction in the prices. (ii) (a) Price once fixed will remain valid for the period of delivery. Increase and decrease in taxes and other statutory duties will not affect the price during this period. (b) In case of delayed supplies after delivery period the advantage of reduction of tax/duty would be passed on to the purchaser and no benefit of increase in price will be permitted to the supplier if there is any increase in tax/duty.”

24. As per clause 12.1, if there was any increase in taxes or duties, no benefit of increase in the price was permissible. This is further clear from clause 11.3, which provided that if there is any increase in taxes, the same would be to the contractor‟s account. Thus, the seller was well aware that there could be changes in the taxes/duties during the tender period. Any increase in taxes would not increase the price. The tenderer/purchaser was however entitled to benefit of increase in the taxes/duties, as there would be no change in the price. Withdrawal of the concession of the sales tax to the MTNL is, in fact, an increase in tax, which the supplier had to bear.

25. The submission of the supplier and the finding of the Arbitrator that MTNL is merely a consignee of the cables is incorrect as a perusal of the NIT along with the General Conditions and the LOI clearly shows that the contract between the parties was the purchase order. Even the definition of contract price is clear to the effect that the price payable to the supplier was the price mentioned in the purchase order and not the NIT or any other documents. Moreover, the submission that the purchaser was the DOT and the NIT is also belied by a mere perusal of the purchase order itself which mentions the name of the purchaser as MTNL. The extract from the Purchase order reads as under: “ 2. NAME OF PURCHASER (Hereinafter referred to as Purchaser): The Mahanagar Telephone Nigam Ltd., Tower -I, 12th Floor, Jeevan Bharati Building 124, Connaught Circus, New Delhi- 110 001” Thus, MTNL was not merely a consignee of the goods but the purchaser itself.

26. The further submission of Mr. Abhishek Sharma that the issuance of the purchase order was merely a formality is also incorrect as the purchase order was to conclude the final contract.

27. The finding of Ld. Arbitrator that there was unjust enrichment is an incorrect finding. The relevant portion of the award reads as under:

28. This is a completely incorrect position as the Sales Tax Department, vide notice dated 11th March, 1996, had withdrawn the concession given to MTNL on various goods including underground telephone cables. This was upheld by Sales Tax Officer vide order dated 16th August, 1996. A perusal of the said order dated 16th August, 1996 passed by the Sales Tax Officer shows that MTNL had been in the past extended the concessional sales tax conditions only on the basis that it was involved in the activity of power generation which the Sales Tax Officer found to be incorrect. On the ground that MTNL was engaged only in telecommunication services, the benefits had been withdrawn. Thus, the award, proceeded on a factually incorrect basis that MTNL was simultaneously availing the concessional sales tax while refusing to pass on the same to the supplier.

29. In Security Printing and Minting Corporation of India (supra), the Supreme Court held that the withdrawal of MODVAT credit having been specified clearly in the supply order and the supplier having undertaken the supplies, the completed contract is binding on the authorities. The relevant paragraphs of the said judgment are extracted herein below: “…………………………….

16. After hearing learned counsel for the parties and perusing the record we are of opinion that the view taken by the Arbitrator and affirmed by the learned Single Judge and the Division Bench of the High Court cannot be sustained. Firstly, when the terms and conditions have been reduced (sic to writing) in the supply order dated 31-5-1995, therein the condition of MODVAT credit was incorporated and it was accepted by the claimant. The contract had come into existence and the supply had been started on the basis of that supply order. Though the claimant had protested with regard to this clause but the appellant did not accede to the request of the respondent for deleting that clause and the appellant had informed the claimant on 31-12- 1995 that there was no change in the conditions of the supply order still claimant continued to supply the goods as per the order. Therefore, on the face of this condition there is no going back from that. In case the claimant was not inclined to accept this clause he could have very well withdrawn from the contract. But it did not do so and continued with the contract. Therefore, on the basis of the clear terms of the contract, the claimant is bound by it and it has to restore whatever MODVAT credit received by it to the appellant security press. The view taken by the Arbitrator that since it was not the condition when the tender was floated is not correct as after the complete contract having come into existence, there is no purpose to refer to the terms of tender. What is binding is the completed contract and not the terms of offer of the advertisement. Whatever may be the offers in the advertisement, once the completed contract has come into existence, this is binding. There are no two opinions in the matter in the present case that the terms and conditions of the supply order dated 30-5-1995 were complete. Therefore, what is binding is the terms of the contract and not the terms in the offer of advertisement. Therefore, under these circumstances the view taken by the Arbitrator as well as learned Single Judge and the Division Bench of the High Court is ex facie illegal. It is true that normally the Courts are very slow in interfering with the finding and interpretation given by the Arbitrator. So far as the principle of law is concerned, there are no two opinions and it has to be accepted. But the fact remains that if any perverse order is passed, then the Courts are not powerless to interfere with the matter. As pointed out above, once the concluded contract has come into existence, then in that case the offer of advertisement cannot override the terms and conditions of the completed contract. Therefore, in our opinion, the view taken by the Arbitrator, as affirmed by learned Single Judge and the Division Bench of the High Court on the face of it is illegal and against the law.

17. Secondly, learned counsel has submitted that the principle of sub silentio applies in the present case. There is no question of principle of sub silentio involved in the present case. The terms and conditions of the contract are very clear and it was clearly understood by the claimant as it protested that the condition with regard to MODVAT credit should not be allowed to continue in the terms and conditions of the contract and the same may be deleted which is evident from the communications dated 5-6-1995 and 20-6-1995. Therefore, there was no misunderstanding. There was no question of applying the principle of sub silentio when the terms and conditions were well known and clearly understood between the parties. More so, MODVAT credit is available in order to avoid double taxation on the papers which were imported by the appellant security press after paying the excise duty and therefore, the claimant claimed the benefit of excuse duty paid by the security press and the security press had issued gate passes and documentary evidence for the payment of excise duty on which the claimant claimed the benefit of MODVAT credit. Therefore, on that count also the benefit could legitimately be claimed by the appellants as they have paid the excise duty also. Therefore, under these circumstances, we are of opinion that the view taken by the Arbitrator, as well as learned Single Judge and the Division Bench of the High Court cannot be sustained and we accordingly, allow this appeal and set aside the order of the Arbitrator with regard to MODVAT credit and also the view taken by learned Single Judge and the Division Bench of the High Court of Bombay to this extent. The appellants will be entitled to retain the amount(s) equivalent to MODVAT credit as claimed by the respondent. There would be no order as to costs.”

30. Thus, in the above case, the Supreme Court holds that no purpose would be served in referring to the terms of the tender as, the final contract was the supply order.

31. In Alcatel India Limited (supra), a Division Bench of this Court has held that the mere issuance of a letter of intent does not lead to creation of a contract. The relevant portion of the said judgment is extracted hereinbelow:

32. The submission that MTNL is merely a beneficiary of the contract, would not be correct in the facts of the present case. This is because DOT had called for the tender on behalf of its various circles, including MTNL. The NIT contained the broad terms and conditions but was clear to the effect that the purchase order was to be the final contract. All bidders were conscious of the fact that the actual purchase orders were to be placed by the various circles in case of non-metro areas and MTNL in case of Delhi and Mumbai. The suppliers were well aware that the DOT was itself not procuring but the order was to be placed by the respective circles and MTNL. Thus, they accepted the purchase order issued by various circles and made the supplies. While relying on the concessions given to them in the various circles without any objection, when MTNL refused the benefit of sales tax under the „C‟ form, they sought to raise objections in respect of the conditions in the MTNL‟s purchase order. The purchase orders were placed by the various agencies working under the broad umbrella of the DOT, which was clear to the bidder right from the beginning. Thus, the contracting parties for each of the purchase orders was the specific procurement agency and the bidder. The contract was the purchase order placed by each of the Circles/agencies. The letter of intent, as held in Alcatel (supra), did not by itself constitute the contract. The letter of intent signifies the intention to purchase. The final purchase order binds the contracting parties. The manner in which clause 16 of the purchase order is worded, in fact, makes it clear that the terms and conditions in the NIT/ APO/LOI were subservient to the main contract i.e. the purchase order and not the other way round. Security Printing and Minting Corporation of India (supra) is clearly applicable in the present case as the contract, i.e., the purchase order, is between MTNL and the supplier, which is a contract of principal to principal.

33. The purchaser being defined as the President of India acting through DOT would not make difference to interpreting the terms of the contract. In the Purchase Order, the Purchaser is defined as MTNL. Since the NIT was issued on all India basis, it was a general NIT containing the various terms and conditions. The said NIT itself stipulated that the purchase order was to be deemed as the contract. Any transaction has to be governed by the document, which is the final contract and not by the identity of the purchaser. The mere fact that the NIT was a general NIT for supplies to be made across the country, does not make the NIT the concluded contract between the parties. The NIT thus being clear as to what constitutes the contract, it cannot be argued that the NIT would overrule or prevail over the actual purchase order i.e. the contract.

34. The contention that MTNL has no locus to change the terms and conditions as it is only a sub-agent/purchasing entity, which is bound by the DOT‟s direction though appealing, is liable to be rejected as the purchase order constitutes the final contract. Ld. Arbitrator is bound, as per Section 28 of the Arbitration Act, to decide as per the terms of the contract. The change of the stipulation relating to sales tax in the purchase order, as sought by the supplier is, in fact, nothing but a plea to „re-write the contract‟ i.e., `re-write the purchase order‟ which is not permissible. The facts and circumstances i.e., the clauses in the NIT, clarification by DOT etc., could have had persuasive value for the board of MTNL to consider changing the terms of the purchase order, thereby resulting in a fresh agreement or novation. However, the said facts cannot be an appeal to „rewrite‟ the contract. The purchase order continues to be the binding contract between the parties. Once the purchase order, under which the supplies were made was clear, a mere hope by the supplier that MTNL would clarify in its favour, could not form the basis of claims. The Ld. Arbitrator has therefore clearly erred in holding that the purchase order was not the concluded contract. The purchase order was the concluded contract between the parties. As per the terms and conditions of the NIT and the bid documents, LOI read with purchase order, HTL was well aware that insofar as Delhi region of supplies were to be made to MTNL were concerned, it would not be issued any C-Form as the Sales Tax Office had withdrawn the concessional benefit given to MTNL. Accordingly, the impugned award is liable to be set aside. The award is accordingly set aside.

35. Thus, OMP 1113/2012 is allowed. However, there are no orders as to the costs.

PRATHIBA M. SINGH, J. JUDGE MARCH 14, 2019