M/S OM GURUSAI CONSTRUCTION COMPANY versus M/S V.N. REDDY & ORS

Citation: [2023] 11 S.C.R. 379 · Decided: 23-08-2023 · Supreme Court of India · Bench: J.K. MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

CASE DETAILS
M/S OM GURUSAI CONSTRUCTION COMPANY
v.
M/S V.N. REDDY & ORS.
(Civil Appeal No. 5375 of 2023)
AUGUST 23, 2023
[J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]
HEADNOTES
Issue for consideration: Under Clause 2.22.0 (ix) of tender conditions, 
the appellant was to furnish the additional performance security within a 
period of two working days and this duration of two days was not to be 
relaxed under any circumstances, whether to construe clause 2.22.0(ix) as 
rigid and unalterable, even if the justice of the cause warranted otherwise.
Tender – The tendering authority had accepted the additional 
performance security on 17.03.2021 i.e. after a period of two working 
days – Propriety:
Held: Under Clause 2.22.0 (ix), the appellant was to furnish the 
additional performance security within a period of two working days – It is 
not disputed that 13.03.2021 was a Saturday and 14.03.2021 was a Sunday 
and hence two working days would expire only on 16.03.3021 – It is also 
not disputed that there was a nationwide employees strike in the nationalised 
banks on 15.03.2021 and 16.03.2021 – Finally, additional performance 
security was accepted on 17.03.2021 – This is a case where the appellant 
has complied with the condition of furnishing the additional performance 
security at the earliest possible time, that it could possibly comply – That 
no one can be compelled to perform an impossible task - Lex non cogit 
ad impossibilia - is a well-accepted legal principle – Decision making 
authorities, like the tendering authority here, cannot be expected to turn a 
blind eye to undisputed – ground realities and compelling necessities, like 
the one that presented itself here – Thus, there is no hesitation in holding 
that the deposit of the additional performance security on 17.03.2021 was 
in due compliance of Clause 2.22.0 (ix) of the tender conditions – There 
was no breach of that clause. [Paras 6, 9, 23 and 24]
[2023] 11 S.C.R. 379 : 2023 INSC 760
379
380
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
Tender – Verifi cation by tendering authority:
Held: In the instant case, the tendering authority, after due verifi cation, 
about the non-operation of the banks on 15.03.2021 and 16.03.2021 due to 
the strike by the bank employees, had accepted the additional performance 
security on 17.03.2021 and awarded the work to the appellant – It is well 
settled by a long line of judgments that the owner or the employer of a project, 
having authored the tender documents, is the best person to understand and 
appreciate its requirements and interpret its documents – It has also been 
held that the constitutional courts must defer to this understanding and 
appreciation of the tender documents by the employer unless there is mala 
fi de or perversity in the understanding or appreciation. [Para 25]
LIST OF CITATIONS AND OTHER REFERENCES
Mahanth Ram Das vs. Ganga Das [1961] 3 SCR 763; Raj Kumar 
Dey and Others vs. Tarapada Dey and Others (1987) 4 SCC 398 : [1988] 
1 SCR 118; Jagdish Mandal vs. State of Orissa and Others (2007) 14 SCC 
517 – relied on. 
Vidarbha Irrigation Development Corporation and Others vs. Anoj 
Kumar Agarwala and Others (2020) 17 SCC 577; Tata Cellular Vs. Union 
of India, (1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122 – distinguished.
HUDA and Another vs. Dr. Babeswar Kanhar and Another (2005) 1 
SCC 191 : [2004] 6 Suppl. SCR 282; Rosali V. vs. TAICO Bank and Others 
(2009) 17 SCC 690 : [2007] 1 SCR 1169; Dakshayani vs. Branch Manager, 
Indian Overseas Bank, AIR 1998 Kant 114; Afcons Infrastructure Limited 
vs. Nagpur Metro Rail Corporation Limited and Another, (2016) 16 SCC 
818 : [2016] 3 SCR 551; Ufl ex Limited Vs. Government of Tamil Nadu and 
Others (2022) 1 SCC 165 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5375 of 2023.
From the Judgment and Order dated 25.03.2022 of the High Court of 
Judicature at Bombay at Nagpur in WP No. 1787 of 2021.
381
Appearances:
Satyajit A Desai, Amit K Pathak, Siddharth Gautam, Abhinav K. 
Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, Ms. Anagha S. 
Desai, Advs. for the Appellant.
Prashant Shrikant Kenjale, Sandeep Chopade, Uday B. Dube, Advs. 
for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
K. V. VISWANATHAN, J.
1. Leave granted. 
2. This case brings back to memory the classic words of Justice M. 
Hidayatullah (as the learned Chief Justice then was) in Mahanth Ram Das 
vs. Ganga 

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