M/S AVBS Digital Solutions Pvt. Ltd v. Dr. Ram Manohar Lohia Hospital and Anr.

1. The petitioner has filed the present applications seeking recall ofthe orders dated 31.08.2018, whereby the above captioned petitions were dismissed as withdrawn at the instance of the learned counsel appearing for the petitioner.

2. The petitioners now states that there was amiscommunication and he had not instructed his lawyers to withdraw the present petitions. Although, this Court is not persuaded to accept that there is any ground for recall ofthe said orders, however, since the petitioner claims that the petitions were withdrawn without its consent, the orders dated 31.08.2018 are recalled. And, with the consent of the learned counsel the petitions are taken up for hearing.

3. The petitioner has filed the present petitions, inter alia, impugning ) two separate communications dated 08.06.2018 issued by the respondents terminating the contracts - (i) "Comprehensive Maintenance Contract ofthe t Printer, Bar Code Printer, Scanner, Bar Code Scanner, Fax Machine installed in Various Departments of the hospital"; and (ii) Comprehensive Maintenance Contract ofComplete Computer, Network &Switch, Server & Server RAM System installed in Various Departments ofthe hospital".

3. The said contracts were awarded to the petitioner by an open bidding process initiated by the respondents, by issuing aNotice Inviting Tenders (NIT) on 20.10.2016. Although, the term ofthe contracts was for aperiod of three years, but the same have been terminated pre-maturely.

4. The impugned communications terminating the said contracts indicate that the respondents have terminated the contracts by citing condition (f). This Court is informed that the said condition refers to Clause (f) ofthe terms and conditions as mentioned in the letters dated 30.12.2016 communicating the approval for award ofthe contracts. The said Clause is set out below "f) The Medical Superintendent, Dr. Ram Manohar Lohia Hospital, reserves absolute right to alter/cancel this contract ^ at any time during the period of the contract without J assigning any reason therefore."

5. It is relevant to note that the petitioner had accepted all terms and conditions of the contracts as specified in the NIT but had not accepted Clause (f) as mentioned in the letters dated 30.12.2016, as the same was not a part of the NIT. The petitioner, by its letters dated 31.12.2016, had unequivocally communicated its reservation as to the aforesaid term. The relevant extract ofone ofthe letters dated 31.12.2016 is set out below:- ) "This letter is in reference to your Letter No. 16- 28(B)/2016-17-RMLH(M&R) 2911, dated 30/12/2016, in which you have awarded us the contract for Annual ^ Comprehensive Service Maintenance Contract (CAMC) For Printer, Bar Code Printer, Scanner Bar Code Printer, Fax Machine installed in your Hospital. Sir, Our Company M/s AVBS Digital Solutions Pvt. Ltd is ready to provide services for Armual Comprehensive Service Maintenance (including all Consumables & Spare Parts) Contract of Printer Bar Code Printer, Scanner Bar Code Printer, Fax Machine and accepting all term &conditions ofNIT, except point No.(f) of Letter No. 16-28B/2016-17- RMLH(M&R)2911, dated: 30/12/2016, in which you have mentioned that The Medical Superintendent, Dr. Ram Manohar Lohia Hospital, reserve the right to alter/cancel this contract at any time during the period of the contract without assigning any reason therefore."

6. Notwithstanding the aforesaid communication, the respondent had awarded the contract to the petitioner. This Court is,primafacie, oftheview that Clause (f), as mentioned above, is not binding on the petitioner.

7. Mr Makhija, learned counsel appearing for the respondents states that after termination of the contracts with the petitioner, the same have been awarded to another service provider.

8. It is apparent from the above, that the principal dispute between the petitioner and the respondents relates to the question whether the respondents had unfettered right to cancel the contracts without assigning any reason. Whereas the petitioner claims that ithad not agreed to Clause (f) as mentioned in the letter dated 30.12.2016, the respondents claim to the contrary.

9. Although, this Court is, primafacie, ofthe view that the petitioner's contention is merited, however, this Court does not consider it apposite to entertain these petitions, essentially, for two reasons. First, that granting the relief as sought by the petitioner would amount to directing specific performance ofa contract, which is otherwise determinable and in terms of Section 14 ofthe Specific ReliefAct, 1963, such reliefisnot available.

10. Secondly, the contract was terminated on 08.06.2016, and the petitioner has approached this Court more than two months thereafter. In the meanwhile, the respondents have already awarded the said contracts to another service provider. Inthese circumstances, it would not be apposite to y direct reinstatement of the petitioner as that would necessarily entail termination of a contract entered into between the respondents and a third person, who is not a party to thepresent petitions.

11. In view of the aforesaid, the present petitions are disposed of by permitting the petitioner to seek appropriate remedies.

OCTOBER 12, 2018 RK VIBHUBAKHRU, J