Tender Lapses Automatically If Not Extended; Repeated Representations Can't Cure Delay: Patna High Court

The Patna High Court has held that mere filing of repeated representations cannot cure delay or extend limitation, and that once a tender period lapses without extension, the contract stands naturally terminated, allowing the State to issue a fresh tender in public interest.A Division Bench comprising Chief Justice Sangam Kumar Sahoo and Justice Harish Kumar was hearing a Letters Patent Appeal filed by the State challenging the order dated 18.11.2024 passed by a learned Single Judge, which had set aside cancellation of an earlier tender and the issuance of a fresh tender. The writ petition had been filed by the respondent-firm seeking quashing of the order dated 16.03.2017, whereby the State cancelled a previously approved tender for sale of empty cartridges stored at Munger Gun Factory and decided to float a fresh tender.The case of the petitioner-firm was that it had been declared the successful bidder in 2008 and had repeatedly approached the authorities for measurement and lifting of the materials. It contended that the delay was attributable to the authorities due to elections and administrative reasons, and therefore cancellation of the tender after several years was arbitrary.The State, on the other hand, submitted that the petitioner had itself sought repeated adjournments at the initial stage, and thereafter failed to take timely steps. It was further contended that the validity period of the tender was only six months and that over a span of eight years, both the quantity and price of the materials had significantly increased, necessitating a fresh tender in public interest.The Court framed the issue as whether cancellation of the earlier tender and issuance of a fresh tender, after lapse of considerable time, was arbitrary or legally sustainable.On facts, the Court noted that the tender conditions required lifting of materials within six months, and there was no provision for extension of the validity period. It further observed that the petitioner had not approached the Court within a reasonable time, and instead kept submitting representations. The High Court relied on Mrinmoy Maity v. Chhanda Koley & Ors., reported in (2024) 15 Supreme Court Cases 215, and held that:“All the more after going through the pleadings in the writ petition as well as the counter affidavit, we are of the view that no fault can be found with the authorities concerned so far as the delay is concerned, rather we are of the view that the petitioner firm should have approached this Court within a reasonable period, knowing very well that the validity of tender period was only for six months and there was no specific stipulation for relaxation of the period. Further, there is no dispute that the cost of the material/brass, which was used in that empty cartridges had gone up substantially in the meantime and the quantity has also increased by passage of time”Further relying on Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers (2008) 12 SCC 500, the Court held that where a tender period lapses without formal extension, the contract stands naturally terminated.The Court further observed that in the intervening period, the quantity of empty cartridges had increased substantially and the price had also escalated, and therefore a fresh tender would be more beneficial to the State exchequer. The Court also adverted to the Supreme Court's decision in Principal Chief Conservator of Forest & Ors. v. Suresh Mathew & Ors., reported in (2025) Supreme Court Cases OnLine SC 933, in context of scope of judicial review in tender matters and Government being the State Exchequer. Eventually, the High Court held“We are of the humble view that since there was no illegality committed by the authorities in cancelling the tender on account of passage of time and since admittedly, during the relevant period, the petitioner firm did not come forward to receive the goods, rather took time on some pretext or the other which was also granted to him and, moreover, since he approached this Court about seven to eight years thereafter, and went on filing representation after representation and by floating the new tender, there would benefit to the State exchequer and the same is necessary for public interest, the learned Single Judge was not justified in entertaining such writ petition and also passing the impugned order. The order passed by the learned Single Judge suffers from palpable unreasonableness and there is perversity in it and therefore, in exercise of the appellate jurisdiction, we have to correct the same and cordingly, the impugned order stands quashed. “Holding that the delay was attributable to the petitioner and that the decision to cancel the earlier tender was justified in public interest, the Court concluded that the learned Single Judge had erred in interfering with the same.Accordingly, the Court allowed the appeal, set aside the order of the Single Judge, and upheld the cancellation of the earlier tender. However, it directed refund...

Tender Lapses Automatically If Not Extended; Repeated Representations Can't Cure Delay: Patna High Court

Rushil Batra

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