Professional Documents
Culture Documents
Arb.O.P.No. /2015
Mr.P.Suryanarayanan
BHEL
Company registered under the
Companies Act, 1956
Having its office at Thiruverambur, Trichy
Rep. by its Sr.Deputy General Manager,
Works contract Management .. Claimant
Vs.
TVS Logistics Services Ltd.,
Company registered under the
Companies Act, 1956
Having its office at TVS Building,
7-B, West Veli Street, Madurai – 625 001
Rep. by its Managing Director,
Works Contract Management .. Respondent
PETITION FILED BY THE CLAIMANT
on 17-07-2013.
the Companies Act, 1956 submitting a bid in respect of the aforesaid
respondent was awarded the contract vide form of Letter of Intent
the schedules and in respect of bidders, they have accepted the
counter and the details of the same are as found in the Annexure
No.1.
: 2 :
of Intent dated 09-11-2013 placed an order on this point for lifting of
the consignment initially on the basis of orders placed by the
document form of Letter of Intent dated 09-11-2013 and lifting of the
two bids viz. Techno Commercial Bid and Price bid. Every
participant, the respondent may have to submit both the bids.
However the Techno Commercial Bid will be evaluated first, those
to participate in the price bid. The respondent fulfilled the Techno
on an evaluation of the price bid in respect of some of the schedules.
The respondent became a L1 bidder and whereas in respect of some
other schedules. However as per the contract, the counter offer was
made in respect of those schedules where the respondent is not a L1
bidder. The respondent accepted the counter offer in respect of the
others. The details of L1 bidder of the respondent and their
the branch office. IN that clause the participant shall have a branch
: 4 :
Type Clause – 6
3. One branch either in Bangalore or Hyderabad or in the
Northern state
Even if the bidder does not have the branch office, they shall
open the branch officer as per the tender conditions within 30 days
from the date of issue of LOI. The respondent at the time of
submitting the bid. At the time of submitting his techno commercial
respondent was requested to submit the proof with regard to the
branch office at Trichy and the respondent also submitted the lease
agreement and the letter with TVS Sons Ltd. And letter from TVS
: 4 :
respondent as e-mail dated 17-07-2013, a copy of the same is filed
on 09-11-2013, the claimant placed an order by way of demand
Therefore any demand made by payment through the system is
visible to respondent. The respondent initially acted on the basis of
notice of the respondent that they failed to honor their commitment
through other carriers under the risk purchase clause under the
: 5 :
2013 requested more time to make operating arrangements as their
8. On 11-12-2013, the claim respondent by way of e-mail giving
option to the respondent to place at three vehicles of 35 M.Ts
capacity organized the dispatches. The e-mail is also disburse that
for 3 days prior, the claimant could not establish any contract to the
BHEL that there were on the job and the job for movement of 35
M.Ts. from ALSTOM. The respondent subsequent to the mail dated
Even in an earlier mail dated 11.12.213, it was brought to the notice of
the respondent about the failure to fulfill the contractual obligation
and also the performance in the 70 ft trailer is not at all satisfactory
9. On 17-12-2013, the respondent gave an e-mail stating as though
of support to the claimant. It was brought to the notice of the
in the said mail that the respondent did not receive orders in respect
received with respondent. In respect of the aforesaid schedules, the
respondent is not a L1 bidder; he is accepted only a counter offer. In
immediately on finalization in respect of L1 bidder and in respect of
be issued in the case on hand also, the 2nd letter of LOI was issued to
the respondent in respect of the aforesaid terms under the contract.
BHEL is bound to give preference to the L1 bidder and subsequent to
No.41, S.f.No.42, SF No.43, S.F.No.62 and RS schedule TA 61 as L1
bidder in respect of schedule TA 31, 32 and 33 as counter offers.
Even after 1 month from the date of LOI, the respondent failed to
perform as per contractual obligations which result in bringing the
operation of the claim is stand still. The e-mail also informed the
respondent that the risk purchase tender would be released soon as
the respondent failed to demand as per terms and conditions of the
contract.
11. On 20-02-2015, the claimant sent a e-mail and brought to the
notice of the respondent about the discussion which have taken place
vehicle in time.
12. On 24-02-2015, the respondent sent an e-mail stating that LOI
by their mail dated 24-02-2014 have made their intention clear that
extraneous reasons wants to wriggle out of the contract. During the
cited that the rates were wrongly quoted without assigning the
market conditions. Knowing full well that the same cannot be done
13. On 27.12.2014, BHEL Sanghvi, the respondent bringing to the
replied that opening of a branch within 30 days from the date of LOI
the time of submitting the respondent had stated emphatically and
equivocally that they have a branch office at Trichy and for which
they have also submitted the proof it’s too late for the respondent to
wriggle out of the contract by citing that they do not have the branch
office. Needless to point out that the contract mandates that the
bidder shall have the branch office and he need not be on their own.
The respondent having fresh detail about the branch office at Trichy
is borne by the contractor even otherwise the close only for the
benefit of BHEL and the fact that BHEL placed orders. The claimant
having accepted this submission of the respondent at Branch Office
voluntarily disclosed that they have the branch office and having
furnished necessary documents in proof of the same is principles of
Having participated in the bid and having commenced the work has
contemplated under the contract bullying out of the contract by the
14. The respondent did not fulfill the obligations and as per the
BHEL was forced to float the risk purchase tender afresh. BHEL
arose out of the transportation contract No. All India Road
Transportation Road Contract 2013-14 due to the failure of the
respondent. In that process BHEL has incurred expenses over and
above were intended on every contract with respondent, the details
are as found in the Annexure 2. The respondent having not placed
the vehicles as per the contract is liable for the penalty as
contemplated under Clause 11.2 of the Special Conditions of the
contract.
Type 11.2
Under the aforesaid clause, the penalty will be deducted on per day
basis till particular consignment is lifted from the other consignment.
The aforesaid tabular column such as the penalty which can be
respondent under the penalty from no placement of vehicles clause it
is liable to pay a sum of Rs………………to the claimant. The calculation
holds the same as per Annexure 3. The claimant because of the
alternative but to perform the contract by floating by a fresh tender.
Type 14
Under the aforesaid clause, the claim is liable for all the BHEL
are as per Annexure 2. The respondent is liable to pay a sum of
respondent is therefore liable to pay to the claimant under both the
heads viz. the penalty for placement of vehicles and for invoking risk
It is prayed that the Hon’ble Arbitration Tribunal by passing in
orders
c) For cost
VERIFICATION
state that the above stated facts are all true and correct to the best
same at Trichy on .
Petitioner
** Under Clause 17 of the Special Conditions of the Contract which is
the time of tender and having lifted the consignment under the
contract. He is not entitled to wriggle out of the contract by saying
that they do not have any branch at the time of participating in the
tender. That clause did not quite to the respondent as they were