The appellant invited our attention to the dictum in VHCPL-ADCC Pingalai Infrastructure Pvt. Ltd., (supra). In that case, the Court considered the question whether the petitioner had preferential right to match the lowest bid without pre-qualifying or participating in the bidding process. In that case, Article 14.1(c) of the concession agreement stipulated that the respondent No. 1 could invite proposals from eligible persons for capacity augmentation of the project which required the petitioner to give an option to submit its proposal. The Court after noticing the precedents on the relevant aspects, went on to observe that if the concessionaire chose not to submit its proposal, it did not have the right to match the preferred offer as would be the case of the respondent herein, in view of the express stipulation in the tender documents requiring the respondent to participate in the bidding process. The appellant has also placed reliance on the decision in Raj West Power Limited, (supra). We agree with the respondent that this decision does not lay down any principle which may have any bearing on the case in hand.
28. In view of the above, we have no hesitation in concluding that the decision of the Arbitral Tribunal as confirmed by the High Court, falls foul of the fundamental policy of Indian law and cannot be countenanced.
In the Supreme Court of India
(Before Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ.)
National Highways Authority of India
v.
Gwalior Jhansi Expressway Limited
Civil Appeal No. 3288 of 2018
Decided on July 13, 2018
The Judgment of the Court was delivered by
