The main legal point established in the judgment is the availability of an alternative statutory remedy for resolving disputes through arbitration, emphasizing the importance of adhering to the supply conditions.

ORDER :

Sanjay Yadav, J.

1. Petitioner, a registered partnership firm having suffered termination of rate contract entered for supplying Azithromycin (250 mg. And 500 mg. Tablet), forfeiture of security deposit and blacklisting/debarring the petitioner from participating in the future tenders for a period of two years, by order NO. 6500/F-94/MPPHSCL/Technical/2020/Bhopal dated 25.07.2020 has filed this Writ Petition under Article 226 of the Constitution for quashment of termination order and for a direction not to forfeit the security amount and not to proceed with blacklisting the petitioner.

2. The relevant facts leading to the impugned action briefly stated are that in pursuance to NIT NO. 018/MPPHSCL/Pharma/RC/2019 dated 02.03.2019 by respondent NO. 1 i.e. Madhya Pradesh Public Health Services Corporation (referred as 'Corporation') for the rate contract and supply of EDL and non-EDL pharmaceutical drugs to various hospitals of the State of Madhya Pradesh for the period of EDL Drug (two years) and non-EDL Drug (18 months) including supply of 14864400 tablets/148644 boxes of 10 x 10 tablets of Azithromycin 500mg and 11640600 tablets/116406 boxes of 10 x 10 tablets of Azithromycin 250 mg, the petitioner was selected as L-1 after financial evaluation on 16.09.2020 and tender was awarded to the petitioner.

3. Besides other terms and conditions the supply condition and delivery period was mutually agreed between the parties vide Clause 13 stipulating therein:

"13. SUPPLY CONDITIONS AND DELIVERY PERIOD:

13.1 Purchase orders will be placed on the successful bidder by the Ordering Authority.

13.2 All goods must be of fresh manufacture and must bear the dates of manufacture and expiry. The Pharmaceuticals covered in Schedule P of the Drugs & Cosmetics Act should have maximum potency throughout the shelf life period as prescribed in the Act and rules therein. All other Pharmaceuticals supplied under the Contract will have (a) remaining a minimum of five-sixths (5/6) of the specified shelf life upon delivery at destination with a total specified shelf life of more than two years and (b) remaining a minimum of three-fourth (3/4) of the specific shelf life upon delivery at destination with a total specified shelf life of two years or less.

For imported, Biological, Vaccines & immunoglobulin drugs, supplier can supply these drugs with remaining shelf life of 60% or more. If remaining shelf life of supplied drug is less than above (a) and (b) and these drugs remain unconsumed or expired, then supplier has to replace the material with fresh batch or has to pay equivalent amount to the purchaser (ordering authority).

13.3 (a) The supply should be completed within 45 days from the date of purchase order. However, for injectable drugs supply can be completed within 60 days from the date of supply order.

(b) The supplier may continue the supply of unexecuted quantity after the 45th day, however, liquidated damages as specified in the tender conditions will be levied on the quantity supplied after the 45th day (60th day for injectable). In case of Injectable drugs above liquidated damage will be levied after 60 days.

(c) The date of delivery shall be date of receipt of material or NABL test report whichever is later. Occurrence of the both the events are mandatory.

13.4 The supplier shall complete the earlier purchase order before commencing the supply of subsequent purchase orders.

13.5 The bidder must submit a Test Analysis report (Certificate of Analysis) from CoMPs/MPPHSCL empanelled lab/Gol's lab/third party NABL accredited laboratory (which is not owned by manufacturer or having similar partners for every batch of drug along with invoice. In case of failure on part of the supplier to furnish such report, the batch of drugs will invoice. In case of failure on part of the supplier to famish such report, the batch of drugs will be returned back to the suppliers and the bidder is bound to replenish the same with Government approved lab test report.

Or

If s