Allowed

M/S Merrel Pharmaceuticals Co. v. State of Kerala

Kerala HC25 Oct 2016WP(C)/853/2009

Case brief

AI extract

What is this about?

Writ petition filed by a pharmaceutical company seeking release of withheld dues for undisputed medical supplies. The Court directed the Superintendent of the Medical College Hospital to consider representations, afford a hearing, and pass orders within two months, noting that vigilance proceedings do not bar claims for undisputed amounts.

What did the court decide?

Directed the 2nd respondent to consider representations (Exts.P6-P8), afford an opportunity of being heard to the petitioner, and pass orders within two months.

M/S Merrel Pharmaceuticals Co. Vs State of… — Public Procurement and Tenders | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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WP(C).No. 853 of 2009 (B)

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PETITIONER(S):

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M/S MERREL PHARMACEUTICALS CO., LAXMI NIVAS, NO.21/B, GROUND FLOOR, SURPENTINE ROAD, KUMARA PARK WEST, BANGALORE - 560 020, REPRESENTED BY ITS PROPRIETOR, VIJAY KUMAR.S.

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BY ADV. SRI.BIJU BALAKRISHNAN

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RESPONDENTS:

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1. STATE OF KERALA, HEALTH AND FAMILY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE SUPERINTENDENT,

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MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM.

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3. THE VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR,

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4. THE SUPERINTENDENT, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SRI. HASHYIR.K.M.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2016, THE COURT ON 25/10/2016 DELIVERED THE FOLLOWING:

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WP(C).No. 853 of 2009 (B)

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APPENDIX:

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PETITIONER'S EXHIBITS:

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EXT.P1 - PHOTOSTAT COPY OF THE LETTER DATED 11/7/2003 ISSUED BY M/S MEPRO PHARMACEUTICALS LTD., TO THE CHAIRMAN, CENTRAL PURCHASE COMMITTEE,INTIMATING THEM THAT THE PETITIONER OF THEIR AUTHORISED SUPPLIER.

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EXT.P2 - PHOTOSTAT COPY OF THE LETTER DT.10/3/2004 OF THE 2ND RESPONDENT.

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EXT.P3 - PHOTOSTAT COPY OF THE COVERING LETTER DT.27/3/2004.

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EXT.P4 - PHOTOSTAT COPY OF THE CONSIGNMENT LETTER DT. 27/3/2004.

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EXT.P5 - PHOTOSTAT COPY OF THE LETTER DT.10/5/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXT.P6 - REPRESENTATION DT.5/6/2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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EXT.P7 - PHOTOSTAT COPY OF THE REPRESENTATION DT. 5/6/2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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EXT.P8 - PHOTOSTAT COPY OF THE SAID REPRESENTATION DT. 22/9/2008.

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EXT.P9 - PHOTOSTAT COPY OF THE REPRESENTATION DT. 4/12/06 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXT.P10 - PHOTOSTAT COPY OF THE REPRESENTATION DT. 11/12/06 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

//true copy//

P.S. to Judge

K. HARILAL, J.

-----------------------------------------------------W.P.(C) No.853 of 2009-B

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-----------------------------------------------------Dated this the 25^th day of October, 2016

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JUDGMENT

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The petitioner is a proprietary concern engaged in the supply of surgical and medicinal items to various Hospitals and Institutions. The respondents are purchasing medicinal and surgical items to its Hospitals, Institutions and Health Centers etc., through an agency called “Central Purchase Committee”, which is not in existence after 2008-09. In the year 2002-03, an item called 'Cefipirome 1 gm.' antibiotic injection has been awarded by the 1^st respondent through the Central Purchase Committee to M/s Strides Arcolabs Limited. The petitioner was authorised by the said Company to supply the said products to the respondents during the year 2002-03.

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W.P.(C) No.853 of 2009 -: 2 :-

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In the year 2003-04, the said item called 'Cefipirome 1 gm.' antibiotic injection has been awarded by the 1^st respondent through the Central Purchase Committee to M/s Mepro Pharmaceuticals Ltd., and the petitioner was authorised by the said Company to supply the said products to the respondents during the year 2003-04. In the year, 2003-04, the petitioner has sent 999 vials of M/s. Strides Arcolabs Limited having Batch No.XFO 2001, expiry 07-04 instead of the product of M/s Mepro Pharmaceuticals Ltd., along with 301 vials of the same product of M/s Mepro Pharmaceuticals Ltd., having Batch No.2014, expiry 12-05. This was happened due top sheer inadvertence and bona fide mistake on the side of the despatch section of the petitioner. There is no wilful negligence or deliberate laches on the part of the petitioner to make such a mistaken supply of medicine. When the petitioner came to know the mistake, the petitioner made an offer to resupply the said medicine with the product of M/s. Mepro

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W.P.(C) No.853 of 2009 -: 3 :-

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Pharmaceuticals Ltd. But the 2^nd respondent has not accepted the said medicine. Later, the petitioner came to know that the 2^nd respondent had consumed the medicines, which were supplied by mistake.

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The grievance of the petitioner is that a huge amount is due to the petitioner from the 2^nd respondent in this account and the amount due to him has been withheld without any reason. It came to the notice of the petitioner that a vigilance enquiry has been ordered in respect of the mis-supply of medicine and the same is pending. The petitioner has not claimed the amount due under the supply of misplaced items, which is the subject matter of the vigilance enquiry. But, he is entitled to get the amount due under the supply of undisputed items. Therefore, the petitioner made Exts.P6 to P8 representations before the 2^nd respondent. But, no action has been taken on any of the representations so far. Hence the petitioner sought for a direction to release the amount due to the petitioner with respect

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W.P.(C) No.853 of 2009

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-: 4 :-

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to the undisputed items.

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The 4^th respondent filed a counter affidavit contending that a vigilance enquiry had been ordered with respect to mis-supply of medicine by the petitioner and now the enquiry made thereunder culminated in a case before the Vigilance Tribunal, Thiruvananthapuram. Therefore, no amount due to the petitioner can be released until the disposal of the case by the Vigilance Tribunal.

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Heard the learned counsel for the petitioner and the learned Government Pleader.

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The direction sought for by the petitioner is confined to the amount due under the undisputed items only. The claim requires to be determined by the 2^nd respondent, in accordance with the relevant Rules governing the supply of medicine and the agreement, if any, made thereunder between the parties. But the 2^nd respondent has not considered the claim of the petitioner so far. This Court is of the view that the grievance of the petitioner is an issue to be

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W.P.(C) No.853 of 2009 -: 5 :-

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addressed by the 2^nd respondent and the petitioner has a right to be heard in this respect also. The delay in determining the claim of the petitioner can never be justified.

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In the above view, the 2^nd respondent is directed to consider and pass orders on Exts.P6 to P8 representations, within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner.

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This Writ Petition is disposed of accordingly.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

M/S Merrel Pharmaceuticals Co. v. State of Kerala

Case brief

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M/S Merrel Pharmaceuticals Co. v. State of Kerala

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