Dss Imagetech Pvt Ltd v. Indian Council of Medical Research

NAVIN CHAWLA, J July 06, 2020

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.06.2020 Date of decision: 6th July, 2020 + W.P.(C) 10740/2019 & CM Nos. 44399/2019, 47959/2019 DSS IMAGETECH PVT LTD …...Petitioner Through: Mr.Jayant Mehta, Mr.Gagan Kumar, Mr.Rohit Sharma, Mr.Amit Kaushik & Ms.Payal Chandra, Advs. versus INDIAN COUNCIL OF MEDICAL RESEARCH ..... Respondent Through: Ms.Ekta Sikri, Mr.Vikalp Mudgal & Mr.Arun Sanwal, Advs. for ICMR. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner challenging the order dated 06.08.2019 passed by the Appellate Authority of the respondent dismissing the Appeal filed by the petitioner challenging the order dated 18.04.2019 passed by the Director, National Institute of Nutrition, Indian Council of Medical Research (hereinafter referred to as the "ICMR"). 2. By the order dated 18.04.2019, the Director, National Institute of Nutrition, Hyderabad (hereinafter referred to as the "NIN"), has invoked the provision and powers conferred on it by the Manual of Procurement of Goods, 2017 (hereinafter referred to as the "Manual") issued by the Department of Expenditure, Ministry of Finance, Government of India and inflicted a penalty of placing the petitioner on the Holiday List for a Page 2 period of one year from the date of the order. As noted hereinabove, by the Impugned Order dated 06.08.2019 passed by the Director General of the ICMR as an Appellate Authority, the Appeal filed by the petitioner challenging the said order has been dismissed. 3. In brief, the facts of the case are that by a Purchase Order dated 13.10.2008, the NIN had placed an order for supply of "Automated Protein Digester" on M/s Digilab Genomic Solutions Inc (hereinafter referred to as "Digilab Inc"). The petitioner had acted as an agent of the said M/s Digilab Inc. in the transaction and the Purchase Order records the additional warranties extended by the petitioner during the negotiations held on 21.02.2008 as under:- "OTHER TERMS AND CONDITIONS: As per the negotiations held on 21-02-2008 with our Headquarters ICMR, New Delhi the Indian Agent M/s. DSS Imagetech Pvt. Ltd., New Delhi has agreed to provide the following: 1. Agreed to provide Three Years comprehensive warranty and two years non comprehensive services for equipment at free of cost. 2. Agreed to provide non-comprehensive annual Maintenance from 6th to 10th years @ 3% per year. 3. Agreed to provide spare parts to maintain the equipment up to 10 years. 4. The firm agreed to give discount of 10% on the price list of all the spare parts up to 10 years. 5. The firm agreed to provide 2 preventive maintenance visits per year and also breakdown visits as and when required. 6. Agreed to submit Performance Bank Guarantee of 10% of the FOB value of the order and which will be retained by the Council till the end of the warranty period. Page 3 7. Agreed that the duration of warranty period will start after proper installation of the equipment and submitting user satisfactory report. 8. The maximum response time of 72 hrs was accepted by the firm. 9. Agreed to accept 0.1% of FOB as penalty per week till the warranty period, if the instrument remains in non-working condition for more than 18 days. 10. When the equipment is under warranty/comprehensive maintenance, it would be the responsibility of the manufacturer/dealer/agent to procure spare parts and the Institute will not incur any expense on duty, octori or handling charges. 11. The detailed circuit diagram along with trouble shooting procedure and operational manual would be provided to the institute along with the equipment. 12. Agreed to provide on site training with foreign trainer to the users. 13. The firm also agreed to provide pre installation training for two scientists free of cost. 14. The firm agreed provide consumable for 2000 reactions. 15. The firm agreed to prepare the dust free room and will provide 2 ton AC. 16. The firm agreed to Compaq/Dell laptop with centrino Duo, HDD 80 G