RHYDBURG PHARMACEUTICALS LTD Vs. ESI CORPORATION

JUDGEMENT

(1.) The review petitioner seeks recall of the judgment and order of this Court dated 22.07.2013. The petitioner had challenged an order of blacklisting issued by the respondent on 17.06.2013. The petitioner had entered into a contract with the respondent for supply of specific pharmaceutical products under the terms and conditions of the Rate Contract existing at that time. The respondent had intimated on 06.12.2012 that two categories of drugs supplied were sub-standard. Subsequently, a Show Cause Notice dated 21.02.2013 was received, proposing penal action, including the possibility of debarring. The petitioner replied to this, contending that under the terms and conditions of the Rate Contract, it had complied with the demand for the failed batches by replacing the entire quantity and also refunded the amounts received by it. In the light of these developments, the respondent issued the impugned order debarring the petitioner, for a period of three years, from entering into any contract with it. This Court had, by its judgment and order, (the review of which is sought for), held that there is no fault with the debarring order and had given an opportunity to the petitioner to approach the respondent authorities in the light of the decision of the Chief Judicial Magistrate with respect to the samples.

(2.) The review petitioner urges that this Court fell into error in overlooking the terms of the contract between the parties, especially Clause 15(iii)(a) of the Rate Contract. It was urged that the Show Cause Notice dated 21.02.2013 failed to mention any condition, much less Clause 15 (iii)(d), or even to disclose to the petitioner that the alleged failed samples fell within the description of that condition as they were Category 'A' major defects. Learned counsel for the respondent urged that no review is called for. She relied upon the report of the Technical Evaluation Committee (TEC) in respect of the petitioner's Rate Contract dated 18.02.2013 which had indicated that the defects were classifiable properly in Category 'A'.

(3.) We have considered the submissions. As is evident from a plain reading of Show Cause Notice dated 21.02.2013, the respondent did not specify or spell-out as to the conditions that they were likely to invoke at the time they proposed the debarring order. Having regard to the fact that the petitioner had concededly complied with the previous demand for substitution of the failed batches/supplies and also refunded the amount, it could reasonably assume that the conditions spelt out in Clause 15(iii)(a) had been fulfilled, and rest content with the assurance that no debarring would take place. In these circumstances, we are of the opinion that the writ petition deserved to be allowed. It is accordingly allowed.