We continue our academic debate on the recent case of Shapoorji Pallonji Vs MHADA in which the company challenged the e-tender bidding process followed for the award of a major Rs 11000 contract for reconstruction of BDD Chawls and successfully obtained a ruling that they should be allowed to participate in the bid, though there was a dispute as to whether the bid process was properly concluded or not.
We have already discussed the details in the earlier articles and from the available information it is reported that NIC had created the e-tender system which involved a process of uploading tender documents encrypted with the public key of the tender authority into the server and then clicking a button “Freeze Bid”. The petitioner in this case contended that they were able to successfully upload the document and they got “Successfully Uploaded” message on the screen. However, there after they logged out and the requirement of clicking the “Freeze Bid” button was not displayed. NIC confirmed that the freezing of the bid was not logged in the server and hence the process was not complete.
The reason that the button was not displayed could be due to any number of technical reasons either at the server end or at the user end or at the intermediary network services level. This was considered as a “Technical Glitch” and the Court agreed with the contention that technical glitches should not be allowed to prevent an otherwise valid bid to be taken into consideration.
At this time, I am not going into further debate on this issue and as I have mentioned several times, I donot have any specific vested interest in Ms Shapoorji Pallonji getting an entry into the bid or finally winning it etc. Hence the legal team of Shapoorji Pallonji which consists of some of my friends, need not get upset about what I am objecting to. I am only debating the possibility that if we admit that any unsuccessful e-commerce contracting party can raise non fulfillment of an online process due to claimed technical glitches as a defence to void the contractual requirements, it would create a bad precedent and makes life difficult for all e-commerce entities. I therefore feel if there was any other “Public Good” reasons which required the petition to have been allowed, it should have been allowed under those grounds rather than under the “Technical Glitches” reason.
However, I need to answer one of the points raised by a friend stating
” If you insist the onus of having clicked the freeze button should be on the end point you are effectively saying all individuals must now have cameras behind them recording their actions. That is just not going to work. “
This is the Shapoorji Pallonji dilemma which is not unique to this case but to any transaction in which electronic documents are relied upon and transaction is considered evidentially important.
We must appreciate that at present, according to Indian law, “Click Wrap Contract” is not considered as a valid “Signed Contract”. Unless a contract is digitally signed by both the offeror and the acceptor, a valid digital contract like a written and signed contract cannot be completed.
The Income Tax department and MCA authorities have therefore adopted a process where at the stage of submitting a return, the entire document is captured in toto and a Digital Signature or e-Sign is applied on the web form and then sent to the receiver.
However, what most E Commerce parties are doing is to adopt the US practice of providing a button at the bottom of a contractual document saying “I Accept” or some other similar words. Some people add an affirmative action such as ticking the check box or having a captcha. Others ignore even this precaution.
In such cases, we consider the contract as a “Deemed Contract” where the contract is implied by circumstances evidenced by the meta data of the transactions but detailed terms of contract is considered as open to dispute as per the usual considerations of an “Unconscionable Contract” and “Standard Form Contract” for which several Supreme Court judgement have set the standards. All practicing advocates should know these cases and there is no need for me to repeat a reference here. I have used the references successfully in the adjudication case of S.Umashankar Vs ICICI Bank which is too old for many to remember, except for its historical importance.
It appears that the NIC tender process has also adopted this “Deemed Contract” principle at least to the process of submission of the tender documents….such as Log in with your registered log in ID and password, upload the documents, click the “Freeze Bid” button etc.
There is a dispute that NIC did not give proper instructions in this regard which is outside the scope of my knowledge and I leave it to the NIC to confirm or deny beyond what they have already done in the affidavit before the Court which has been rejected.
Whether the process of tendering was completed or not is a “Sub Contract” to the tender process and it has to be analyzed in the “Deemed Contract Status”.
In a deemed contract, either party can dispute on the details and that is what has happened in this case. I suppose the Court has considered all angles and come to a proper decision and if not, it is for the parties concerned to challenge it in a higher Court.
However, can this process of “Uncertain Deemed Contracts” driving e-commerce transactions and the high value e-tendering systems be allowed to prevail? or should we have a solution? is a matter of concern for “Non Practicing Blog Writers” who are more concerned about the “System” rather than an individual litigant. Practicing advocates argue for one party today and another party the other day while “Non Practicing Blog Writers” have to be accountable for their views to the public and justify change of opinion with reasoning if required.
The Undersigned has anticipated this type of problems several years ago when he launched the services of ceac.in (Those who are unaware, can go through it once again).
Under CEAC service “Certification of a Web Page” now also upgraded as “CEAC-Evidence Drop Box”, it has been suggested that whenever people take critical decisions based on a web document, it is prudent to record the document and get it certified under Section 65B of IEA.
I have submitted many such documents in the case of web based copyright infringements, defamation, matrimonial cases etc. Very recently, there was a demand from a customer who had lost all his accounting records stored on a server in USA which was attacked by a ransomware to show case the evidence that his records were destroyed by the ransomware and the same was provided by CEAC.
Unfortunately many may not know the existence of such services and I donot have the habit of advertising the same as often as I should perhaps do. Hence people may not know either that such trusted third party services have been available since 2002 nor that the requirements can be fulfilled if not with CEAC, with others.
The CEAC-EDB service is specially designed for requirements which Shapoorji Pallonji persons encountered when they were preparing to submit their documents for a huge contract in the last minutes where there was no time left for alternate submission if the technology had failed.
The idea here is that since there is no time to invite an expert Section 65B certifier to record the process in his presence, and also that it has to be done from the premises of the user and in his computer, the user foregoes the need to involve a trusted third party for recording the observation but does the next best thing of “Archiving” the process with a trusted third party at a time no dispute has arisen so that it can be produced as evidence that the process was completed in a certain manner and there was a technical glitch which appeared as a “Error Statement on the screen” or simply by “Nothing appearing on the screen”.
I am sure that some of the informed readers will suddenly jump to other debate of Section 65B certification but we can keep that discussion for a different time.
I recently submitted one Section 65B certified statement of “Certified E Mail Delivery” to a respondent at the instance of a petitioner so that the Court could proceed with the hearing ex-parte since the respondent was not cooperating in the litigation. Similarly, the “Archival of a user end electronic activity” would be certified as to the “Archival”. It is open to the defendant to raise any argument that the archived document itself was fabricated and the archival cannot save the defense. But the onus of proof will be on the defendant that the document is in fact fabricated. The “Archival” will prove the good faith of the user in recording a process before he was aware that it could land in a dispute and Courts may consider it as better than trying to approach the m without any documentary evidence.
In the Shapoorji Pallonji case, a screen shot was reportedly produced but I am not sure if it was Section 65B certified. Also the point of dispute is more on what happenned after the screen showed “Successfully Uploaded”. Did it go blank? Or was the system shut off immediately without waiting for the next screen to appear? etc. This was not clearly established except through the statement of the petitioner. Had they properly recorded the entire process including a few seconds after the uploading of the documents, a better evidence would have been available. The dispute arose only after the bid was rejected by the committee and had the documents been archived earlier with a trusted third party, the evidence would have been stronger.
I agree that in this case, Court was not that strict but if objection had been raised by other bidders, or MHADA had not agreed to accommodate the estranged bidder, Court would have been perhaps stricter. It is better for parties engaged in high value bidding not to take the risk that Court will be always considerate to them to accept the “Technical Glitch” excuse and condone any failure of the tendering process.
Hope this clarifies what I think about “Should we always carry a Camera..”?