Arun Kumar Bhattacharya, J. - (1.) This is a suit for recovery of unpaid price of goods to the tune of Rs. 54,53,362/- together with interest thereon and other reliefs.
(2.) Shortly put, the case of the plaintiff firm is that following a tender floated by defendant No. 1, a list of products of the pro-defendant No. 5 Hindustan Antibiotics Ltd. along with rates of each of the items of the medicines was submitted to defendant No. 1. After negotiation and discussion between plaintiff and defendant No. 1 a contract was entered into between the parties and rates of medicines quoted by and/or on behalf of the plaintiff were approved by the High Power Tender Selection Committee of defendant No. 1. The terms and conditions of the said contract would appear from the letter dated 24.01.92 from the said pro-defendant to defendant No. 1 and two supply orders dated 10.02.92 and 27.02.92. According to the said contract, the plaintiff was to supply the medicine stipulated in the said supply orders and to raise the bills in respect of such supplies, calculated at the rate/rates agreed upon, and defendant No. 1 was to accept the bills and pay the amount. As per arrangement between the plaintiff and the pro-defendant, the plaintiff purchased the stipulated quantities of medicines from the pro-defendant and sold and delivered the same as per supply orders at the rates stipulated and/or approved by the pro-defendant to defendant No. 1 which accepted the same. The plaintiff duly raised bills which were accepted by defendant No. 1 without any demur or objection. Out of a total sum of Rs. 1,54,51,378/- between 15.02.92 and 31.03.92 defendant No. 1 and/or the defendants paid a sum of Rs. 1,27,56,511/- to the plaintiff, thus keeping the balance sum of Rs. 26,94,867/- in respect of six outstanding bills which the defendants failed to pay despite demands and/or requests. The plaintiff initiated a proceeding being Matter No. 3575/92 under Article 226 of the Constitution for recovery of its dues and for an order directing defendant No. 1 and/or the defendants to pay the outstanding dues forthwith, where defendant No. 1 and/or the defendants in the Affidavit-in-opposition unequivocally admitted the said dues, and this Court by an order dated 11.08.93 disposed of the writ application directing defendant No. 1 to pay the said sum with interest @ 9% p. a. before the end of August, 1993. The appeal preferred by defendant No. 2 State of West Bengal and co-respondents was allowed on 31.10.95 and the aforesaid order was set aside on a technical ground that there could be no interference under Article 226 of the Constitution for enforcement of contractual obligations, with liberty to the plaintiff to file a civil suit for recovery of the outstanding amount. The Special Leave Petition against the said order of Division Bench was dismissed by the apex Court on the same ground. The said time during which the proceeding was prosecuted by the plaintiff with due diligence in the Court of first instance, in the Court of appeal and then before the Apex Court is liable to be excluded. Hence the suit.
(3.) The suit is contested by defendant Nos. 1 to 4 by filing a written statement inter alia denying the material allegations made in the plaint and contending that defendant No. 1 has to purchase medicines regularly for supply to different ESI Hospitals and Medical Stores under the Medical Benefit Scheme of the Government of West Bengal. In 1991 in response to a notice published by defendant No. 1 inviting offers for supply of medicines to Government Medical Stores for 1992 providing that offers could be submitted by the manufacturers or jointly with their authorised distributors, the pro-defendant, a public sector company, submitted an offer. Under the guidelines issued by the Government, purchase can only be made from State Government Organisation and Public Sector Drugs & Pharmaceuticals Manufacturing Companies. As the finalisation of the tender process often take long time, the authorities are authorised under the guidelines to make purchase of medicines without going through the tendering process. In January, 1992 defendant No. 1 in such an emergency decided to purchase some medicines from the pro-defendant and requested the latter to submit its offer. By letter dated 24.01.92 the pro- defendant submitted its offer and stated that supply of medicines would be effected by the plaintiff as the authorised distributor of the pro-defendant and that payment might also be made in favour of the plaintiff. Two supply orders dated 10.02.92 and 27.02.92 were placed by defendant No. 1 upon the pro-defendant, and as per the aforesaid request by the pro- defendant, the name of the plaintiff was also mentioned in the said orders. Delivery was accepted from the plaintiff and payment was made to the plaintiff only on the request of the pro-defendant, but the bills were submitted by the pro- defendant. The defendants could not and did not enter into any contract with any supplier outside the public sector. In the negotiation between the pro- defendant and defendants the plaintiff participated only as an agent of the pro-defendant. There was no privity of contract between the plaintiff and defendant No. 1 in regard to the said supply orders, and as such the present suit filed by the plaintiff is not maintainable. By letter dated 06.02.92 the pro-defendant intimated defendant No. 1 that it was offering an additional product in continuation of the offer dated 24.01.92 and by another letter dated 10.02.92 the pro-defendant intimated defendant No. 1 that due to sharp increase of prices of raw materials they would not be able to supply certain specified products for which offer was made by letter dated 24.01.92, and they quoted a higher price which will show that the pro-defendant was acting as the principal party. The "net hospital rates" as offered by the pro-defendant were subsequently revised by the pro-defendant in some cases which did not conform to Clause 35 of the Tender Conditions and para 18 of the Drugs (Price Control) Order, 1987 and to that extent the pro-defendant was not entitled to recover on the basis of such rates. The "net hospital rates" as quoted by the pro- defendant being much higher than those as intimated by a circular dated 06.01.92 by the pro-defendant as corrected upto January, 1992 to its various offices were in violation of the said Control Order, 1987. On deducting the overcharged amount of Rs. 26,08,952.60, the due amount payable by the defendants is Rs. 85,915.31 only, but the plaintiff refused to accept the same. Since the matter in issue in writ proceeding and in this suit are not same and it is not a case of defect in jurisdiction, the present suit is barred by limitation. Hence the suit merits dismissal.;