Jharkhand High Court
Curofy Pharmaceutical Private ... vs Ranchi Institute Of ... on 1 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3402 of 2022
----
Curofy Pharmaceutical Private Limited, a company incorporated
under Companies Act, having its registered address as 29/2 &
29/3, F Block, F. No.301, PO Doddanekkundi, PS White Field,
District Bengaluru (Karnataka), through its Director namely
Amandeep Singh son of Daljit Singh, resident of Anantpur, PO
Doranda, PS Chutia, District Ranchi.
... Petitioner
Versus
1. Ranchi Institute of Neuro-Psychiatry & Allied Sciences through
its Director, having its Office at Kanke Road, PO Kanke, PS
Gonda, District Ranchi.
2. Director, Ranchi Institute of Neuro-Psychiatry & Allied
Sciences, Kanke Road, PO Kanke, PS Gonda, District Ranchi.
3. Medical Officer-cum-Incharge Officer, Medical Store, Ranchi
Institute of Neuro-Psychiatry & Allied Sciences, Kanke Road,
Kanke, PO Kanke, PS Gonda, District Ranchi.
... Respondents
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
----
For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Arpan Mishra, Advocate
For the Respondents : Ms. Ritu Kumar, Advocate
Mr. Sameer Saurabh, Advocate
----
18/ 01.08.2023 Upon hearing the learned counsel for the parties, this Court
passed the following, (Per Ananda Sen, J.)
ORDER
1. Petitioner, in this writ petition filed under Article 226 of the
Constitution of India, has prayed to direct the respondents to accept the
medicines, which have been procured for supply to the respondent-RINPAS as
per supply order bearing letter No.843 dated 29.02.2022 and consequentially
release the price thereof.
2. As per the pleading of the petitioner, the respondent-RINPAS has
floated a tender bearing Tender Document No. DIR/01/04/2021-2022/Medicine
(Re-tender). The said tender was for procurement of medicines. Petitioner
along with others participated in the process and ultimately, the petitioner was
declared L-1. The rates quoted by the petitioner was approved and the
petitioner had also deposited the earnest money. Work order was issued on
23.09.2021, specifying the price of medicines. Allotment of the work was
challenged in writ petition bearing W.P.(C) No. 1945 of 2021, W.P.(C) No.3899
of 2021 and W.P.(C) No.4051 of 2021. In W.P.(C) No.4051 of 2021, it was
directed that any supply made would be subject to the decision of the writ
petition. An interlocutory application being I.A. No.7591 of 2021, praying for
stay, was filed in W.P.(C) No.3899 of 2021, but no order was passed. It is the
case of the petitioner that the petitioner supplied several consignments, which
was also consumed by RINPAS. The petitioner was directed to file an affidavit
to the effect that any supply would be subject to the outcome of the writ
petition. Thereafter the petitioner was directed to file the rate quoted by the
petitioner, to which the petitioner informed that no hard copies of the rates are
available, as the tender process was through electronic mode and the same
can be downloaded from e-portal. It is further case of the petitioner that the
medicines supplied on 16.05.2022 were kept in warehouse by RINPAS and
the medicine which were ready for supply are withheld by the respondents.
Petitioner informed that there is a shelf-life of each medicines and as the
respondents are not accepting the medicines from the petitioner as per the
agreement, they have been put to huge loss. Prayer has been made to accept
the said medicines. In the meantime, respondents came out with fresh tender
for supply of medicines on 18.07.2022, which the petitioner considers to be
malafide action on the part of the respondents as without accepting the
medicines to be supplied by the petitioner, as per the agreement, the
respondents could not have issued any fresh tender. Thus, he has approached
this Court for a direction upon the respondents to accept the medicines and
pay the amount.
3. Respondents appeared and filed their counter affidavit and
admitted that a tender was issued wherein the petitioner participated and
became the lowest bidder. They stated that the rates accepted by the
purchase committee was valid for one year or till finalization of the next tender,
which suggests that the tender, which the petitioner was referring to wherein
the petitioner was declared as L-1, was valid for only one year or till finalization
of the next tender. The petitioner participated in the tender uploaded on
01.09.2021, which was for the period 2021-22 and the latest tender is for the
year 2022-23 floated on 18.07.2022. As per the clause in the tender, in which
the petitioner was successful tenderer, tender was valid till finalization of the
new tender, which is for 2022-23. Thus, the petitioner should not have any
grievance in respect of floating of the second tender. So far as issue of supply
of medicines are concerned, it has been admitted that the petitioner was L-1
and was selected by a duly constituted committee, to supply the medicines,
but later it was found that the petitioner was paid ten times more than what he
had quoted. Petitioner had supplied medicines and thereafter it was detected
that the payment was made ten times more than the quoted amount, so
respondents stopped taking supply and stopped making payment, as already
the amount which has been paid is in excess than what has been quoted by
the petitioner. They submitted that a comparative chart was prepared and it
was found that the price mentioned in Column 14 was ten times higher than
the actual price quoted by the bidder in Column 7 and the amount paid to the
petitioner was as per Column 14, which is ten times of Column 7. It has been
admitted in the counter affidavit that the entire bid process was electronic and
Column No.14 was auto-generated. To substantiate the submission, an
illustration has been given in paragraph 8 of the counter affidavit, which we
would deal at a later stage. On the aforesaid background, the respondents
justify their action of not accepting the balance medicine and withholding
payment.
4. Learned counsel appearing on behalf of the petitioner submits that
the only issue herein is as to whether the petitioner has been paid ten times
more than what the petitioner has quoted or not. He submits that the fact that
the petitioner was L-1 is accepted by the respondents and also the fact that
the entire bidding process was electronic and it is also accepted that Column
No.14 of the chart which has been heavily relied upon by the respondents is
auto-generated. He submits that Column No.7 of the chart is the price, which
the petitioner had actually quoted and the same was in respect of one tablet,
but when the said amount was transposed in Column No.14, price was
multiplied by ten, as the same became the price of one strip of medicine,
which contained ten tablets. He submits that the respondents are taking a plea
now that the price, which the petitioner had quoted in Column No.7, should be
the actual price of ten tablets, which is not correct. By way of illustration, he
submits that he quoted price of one tablet of Quetiapine as Rs.0.94 (94 paise),
but in Column No.14, it was reflected as Rs.9.40 (i.e., Rupees Nine and Paise
Forty), which is in respect of one strip containing ten tablets. He further
demonstrates that if in Column No.7, he would have put the price of medicines
as Rs.9.40 (price of one strip = 10 tablets), then in Column No.14, which is
auto-generated, the price would have been reflected as Rs.94/-, which in fact
would have been ten times more than the actual price. He submits that the
respondents did not consider the aforesaid issue practically and rather have
taken a hyper-technical view and have not accepted the medicines of the
petitioner on nonest ground. He argues that when the document itself is auto-
generated by the respondents and considering all these aspects the petitioner
was issued a work order, meaning thereby the contract was concluded. In a
concluded contract, the respondents are estopped from re-agitating the issue
again. He contends that after the fresh tender was issued, the suppliers have
supplied medicines and the respondents, on the direction of this Court, had
also filed an affidavit to that effect annexing the latest price chart, which would
clearly suggest that the petitioner has not charged ten times the price quoted
by it. He submits that as per the new price rates, there is some variation of few
paise, which is a normal variation. In respect of few medicines the price quoted
by the petitioner is even less. Thus, he prays that this writ petition be allowed
by granting the relief claimed. The petitioner specifically states that he is not
aggrieved by the new tender.
5. Learned counsel appearing on behalf of the respondents argues,
by referring to the counter affidavit, especially paragraph 10 thereof, that in
Column No.7, the rates of ten tablets were to be mentioned and the petitioner
had quoted a particular price, but the petitioner was paid by the respondents
ten times more than the said price as mentioned in column No.14, which is an
auto-generated value, wherein the price quoted in the Column 7 was multiplied
ten times, thus, a huge excess amount has been paid which necessitated
stoppage of supply and stoppage of releasing further amount. It was submitted
that since there are disputed question of facts as to whether the rate is ten
times more or not, this writ petition should not be entertained, rather, the
petitioner should be relegated to the Civil Court having jurisdiction for
redressal of the dispute.
6. From the pleadings and arguments, we find that the fact that the
petitioner was L-1 and he was awarded the work order is admitted. It is also
admitted that the tender was for one year or till finalization of fresh tender. It is
also admitted that a fresh tender has been finalized.
7. Issue, which falls for consideration is whether this writ petition is
maintainable or not? and Whether the plea of the respondents that the
petitioner has been paid ten times more than the price quoted is correct or
not? And whether the petitioner is entitled for any money claim consequently?
8. Whether a writ petition is maintainable to enforce contractual
obligation of the State or its instrumentality is no longer res-integra. The
Hon'ble Supreme Court in the case of ABL International Ltd. Versus
Exports Credit Guarantee Corpn. of India Ltd. reported in (2004) 3 SCC
553 has held that in enforcement of contractual obligation of the State or its
instrumentality, a writ petition under Article 226 of the Constitution of India is
maintainable. If the 'State' acts in an arbitrary manner, even in a matter of
contract, an aggrieved party can approach the Court by filing a Writ Petition
under Article 226 of the Constitution of India.
9. In the case of Popatrao Vyankatrao Patil versus State of
Maharashtra & Others reported in (2020) 19 SCC 241, the Hon'ble Supreme
Court has held that even if there are disputed question of facts, which falls for
consideration, but if they do not require elaborate evidence to be adduced,
High Court cannot preclude from entertaining a writ petition under Article 226
of the Constitution of India. The Supreme Court sounded a word of caution
that such plenary power has to be exercised by the High Court in exceptional
circumstances. The High Court would be justified in exercising such power if
the State or its instrumentality acts arbitrarily and their action is unreasonable
and violative of Article 14 of the Constitution. Thus, from the aforesaid
judgment, it is clear that there is no absolute bar in entertaining a writ petition,
but when there is disputed question of facts, which is complicated and needs
leading of elaborate oral and documentary evidence, normally the Court
should not exercise jurisdiction under Article 226 of the Constitution of India,
but when the State or its instrumentality acts in an arbitrary manner and in
cases where disputed question of fact is not complicated and does not require
leading of oral or documentary evidence, the High Court would be justified in
exercising such a power to the exclusion of other available remedies.
10. On the aforesaid principle, if we look into the instant case, we find
that the only dispute in this case is whether the petitioner has been paid ten
times more than the actual price quoted by the petitioner or not. The petitioner
relies on one document, which the respondents have also relied upon. Even
upon direction, the respondents have filed a comparative price chart, which the
petitioner also relies upon. Thus, in the instant case we find that the facts are
not at all complicated which needs leading of elaborate evidence. Considering
the aforesaid position, we hold that this instant writ petition is maintainable.
11. Now the question is whether the respondents have been paid ten
times more than what the petitioner had quoted. It is an admitted fact that the
bidding was by electronic mode. It is also admitted that Column 7 was the
price, which the petitioner has quoted and the petitioner has been paid as per
Column 14. This Column 14 is an auto-generated column based on the price
quoted in Column 7. This auto-generation is from the end of the respondents.
These facts are admitted by the respondents. The respondents, in paragraph
10 of their counter affidavit, have given an illustration in support of their
contention. They stated that the rate was to be mentioned for 10 tablets in the
price bid and the petitioner has quoted a particular price in Column 7. By way
of an example, it has been mentioned that the price of the tablet Quetiapine
was quoted as Rs.0.94 in Column 7, but in Column 14, it was reflected as
Rs.9.40, i.e., ten times higher. Similar is the position in respect of other
medicines. It is the case of the respondents that the petitioner was paid
Rs.9.40 for the said medicines, thus, it is ten times higher than the quoted
price (i.e. at Column 7). It is necessary to quote paragraphs 10 and 11 of the
counter affidavit, which reads as under: -
10. That it is stated that one application was received under
Right to Information Act and in the process of providing
information related to supply of medicine being Tender
No.DIR/01/04/2021-22/Medicine (Re-Tender), it transpired
that rate was to be mentioned for 10 Tablets in Column-7 of
price bid. The rate quoted by the petitioner for 10 Tablets in
Column-7 for example for Tab.Quetiapine is 0.94 rupees, but
in column 14 it has been mentioned Rs.9.40 i.e. ten times
higher than the rate quoted by the petitioner. Similar is the
position in relation to all the medicines of which price bid
was submitted by the petitioner and other bidders.
The Purchase-Sub-Committee prepared the
comparative price chart on the basis of rate calculated in
Column-14 of price schedule which was not filled by
bidders, as the same was auto generated. The comparative
price chart was to be prepared on the basis of price quoted
by bidders in Column-7 of price schedule.
11. That it appears that the Purchase-Sub-Committee
prepared the comparative price chart and declared L1 on the
basis of Column-14 of price schedule, which is ten times
higher than the actual price quoted by the bidders including
the petitioner, and payment has also been made on the
basis of price auto generated in Column-14, resulted in huge
financial loss to the State and RINPAS.
12. The petitioner's response is that the price quoted at Column 7 is
Rs.0.94, i.e., 94 paise, but the same was for one tablet. A strip of medicine
contains ten tablets, thus, the price of ten tablets was automatically generated
in Column 14 as Rs.9.40, which is, in fact, the correct price. It is the argument
of the petitioner that if the analogy of the respondents is taken to be correct,
then the price of ten tablets, which is Rs.9.40, if is filled in Column 7, then as a
result of auto-generation, in Column 14, price which would be reflected is
Rs.94/-, which, in fact, would have been ten times more than the actual price.
Thus, the petitioner, in Column 7, had filled up the price of only one tablet,
which later on transposed as the price of ten tablets in Column 14. Admitedly,
the petitioner has been paid as per Column 14, which is the price of ten
tablets, i.e., for supply of one strip.
13. We find the aforesaid submission of the petitioner to be correct.
Annexure R-1 at page 8 is a combined chart of the price of medicines, each of
the bidders, including the petitioner had filled. This is a document filed by the
respondents. The comparative chart in respect of Tablet Quetiapine 50 mg is
at Sl. 7, which suggests that one City Pharma had quoted Rs.250/- for the
same medicine, one Psychotropics India Ltd. quoted Rs.117.60 for the same
medicine, whereas the quote of the petitioner was only Rs.9.40, thus, the
petitioner was declared L-1. Similar is the case of several medicines, where
the quote of the petitioner was lowest whereas the other bidders were more
than 15 to 20 times. Basing on these comparative chart, petitioner was
awarded the supply order declaring him to be L-1. This clearly suggests that
the explanation given by the petitioner is logically correct and the plea taken by
the respondents is not only illogical, rather arbitrary in nature.
14. It is an admitted fact that a fresh tender for the year 2022-23 was
floated and the tender was finalized and the price was fixed. Considering the
aforesaid fact, this Court directed the respondents to file a comparative chart
of the price of medicines of L-1 bidders for the year 2021-22 (petitioner) and of
the L-1 bidder of 2022-23 (present supplier). The said affidavit has been filed
annexing a comparative chart. From the said comparative chart, we find that
the said medicine, i.e., Quetiapine 50 mg, which the petitioner had supplied for
Rs.9.40, is now being supplied by the present supplier at the rate of Rs.16.30.
Further, there are rate of several medicines mentioned in the said chart. From
perusal of the same, we find that in respect of some of the medicines, the rate
of present supplier is higher whereas in respect of some medicines, the rate of
the petitioner was higher. If we carefully look at the difference of prices, we
find that the difference is hardly of few rupees. By way of example, the rate of
medicines Amisulpride 100 mg at Sl.9 quoted by the present supplier is Rs.27,
whereas by the petitioner it is Rs.31/-. In respect of tablet Chlorpromazine the
rate of the petitioner was Rs.25.10 and the rate of present supplier is Rs.17/-.
Similarly, in respect of Tablet Clobazam, the rate of the petitioner was
Rs.15.50 whereas that of the present supplier is Rs.21.20. In respect of
Daizepam, the price of the petitioner was Rs.5.20 and that of the present
supplier is Rs.13.50.
15. We have only quoted few medicines by way of illustration, which
is extracted from the latest affidavit of the respondents. This clearly suggests
that the plea of the respondents that the petitioner has charged ten times more
than quoted price is not correct. In fact, if the price of the medicines quoted by
the petitioner is compared with the price quoted by the present supplier, then
also, it cannot be said to be ten times more. The price of medicine quoted by
the petitioner cannot be said to be ten times more that the quoted price nor is
exorbitant. Thus, the ground taken by the respondents is absolutely frivolous,
arbitrary and illogical.
16. In the instant case, we also find that it is an admitted fact that the
contract was concluded between the petitioner and the respondents in respect
of supply of medicines. The Committee evaluated the price and recommended
the petitioner to be L-1 and on that basis, work order was issued to the
petitioner. Petitioner supplied the medicines, which was accepted by the
respondents. Suddenly, the respondents stopped receiving further
consignments on the ground that the petitioner has already been paid ten
times more than the price quoted and the price quoted by the petitioner is
exorbitant. We have already arrived at a conclusion that the aforesaid
allegation is baseless and is incorrect.
17. In the case of BSNL versus BPL Mobile Cellular Ltd. reported in
(2008) 13 SCC 597 the Hon'ble Supreme Court has held that once a
concluded contract was arrived, the parties were bound by it. If it is altered or
modified, it was required to be done either by express agreement or necessary
implication, which would negate the doctrine of "acceptance sub silentio". It is
necessary to quote paragraph 51 of the said judgment, which reads as under:-
In the instant case, the resources to be leased out were
subject to agreement. The terms were to be mutually agreed
upon. The terms of contract, in terms of Section 8 of the
Contract Act, fructified into a concluded contract. Once a
concluded contract was arrived at, the parties were bound
thereby. If they were to alter or modify the terms thereof, it
was required to be done either by express agreement or by
necessary implication which would negate the application of
the doctrine of "acceptance sub silentio". But, there is
nothing on record to show that such a course of action was
taken. The respondents at no point of time were made
known either about the internal circulars or about the letters
issued from time to time not only changing the tariff but also
the basis thereof.
18. In this case also the contract stood concluded and thereafter the
respondents unilaterally came to a conclusion that the price was excessive
though the price which the petitioner had quoted, was properly evaluated by a
Committee. Further, we have also found, based on the documents filed by the
respondents that the price quoted by the petitioner was the lowest and was, in
fact, not ten times more, as claimed by the respondents. We had arrived at the
said conclusion based on the two documents, which the respondents
themselves had filed and admitted by the respondents. Thus, as held earlier,
this instant writ petition does not involve complicated question of fact for
determination.
19. Considering what has been held above, we hold that this writ
petition deserves to be allowed. The action of the respondents in not accepting
the medicines is bad and cannot be sustained. We direct the respondents to
accept the medicines, which the petitioner had supplied, as per the order of
the respondents, provided that the medicines have not yet expired. If some of
the medicines have already expired, it will be open to the petitioner to take
appropriate steps and approach the appropriate forum for claiming damages.
So far as the medicines, which have not yet expired, respondents will accept
the same and will pay the agreed price thereof.
20. This writ petition is, accordingly, allowed.
21. There shall be no orders as to costs. Urgent certified copies of this
order shall be issued as per the Rules.
(Sanjaya Kumar Mishra, C.J.)
(Ananda Sen, J.)
Kumar/Cp-02
