Delhi High Court - Orders
M/S Johnson And Johnson Pvt Ltd vs All India Institute Of Medical Sciences ... on 23 June, 2021
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
via Video-conferencing
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5989/2021
M/S JOHNSON AND JOHNSON PVT LTD ..... Petitioner
Through: Mr. Rajiv Nayyar, Senior Advocate
with Mr. Raunak Dhillon, Advocate.
versus
ALL INDIA INSTITUTE OF MEDICAL SCIENCES NEW DELHI
..... Respondent
Through: Dr. Harsh Pathak, Advocate with
Mrs. Shveta Mahajan, Advocate, Mrs.
Maya Pathak, Advocate, Mr.
Siddharth Shukla, Advocate and Mr.
Mohit Choubey, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 23.06.2021 C.M. No.18935/2021(exemption) Exemption granted, subject to just exceptions.
2. Application stands disposed of.
C.M. No.18936/2021 (for filing lengthy list of dates and synopsis)
3. Exemption granted, subject to just exceptions.
4. Application stands disposed of.
C.M. No. 18937/2021 (exemption)
5. Exemption granted, subject to just exceptions; and subject to the petitioner filing attested affidavits within 01 week of resumption of physical W.P. (C) 5989/2021 Page 1 of 3 functioning of the court.
6. Application stands disposed of.
W.P.(C) No.5989/20217. The petitioner impugns order dated 29.04.2021 issued by the respondent, whereby the petitioner has been 'blacklisted', namely debarred from participating in any further tenders issued by the respondent.
8. Mr. Rajiv Nayyar, learned senior counsel appearing for the petitioner, submits that the debarment is completely in violation of all settled norms inasmuch it is premised on the respondent unlawfully applying clause 33 ('Fall Clause')in contract dated 27.03.2021 to a lower price that was offered by the petitioner to the same respondent under an earlier contract dated 15.02.2020, which is anathema to all legal logic since the Fall Clause can apply only to a future contract and not to an earlier contract, much less with the same entity.
9. Mr. Nayyar further points-out that by way of letter dated 07.11.2019, the petitioner had in fact informed the respondent that "... the prices lower than the prices quoted may be applicable to other Government Department/Institution or any other institution and such lower prices are solely because of terms of sale and other conditions applicable during the pendency of such contract.", whereby the petitioner had acted with complete transparency.
10. Issue notice.
11. Dr. Harsh Pathak, learned counsel appears for the sole respondent/AIIMS on advance copy; accepts notice; and seeks time to file counter-affidavit.
12. Let counter-affidavit be filed within 05 days; rejoinder thereto, if any, W.P. (C) 5989/2021 Page 2 of 3 be field before the next date of hearing, with advance copy to the opposing counsel.
13. For the record, at the outset, Dr. Pathak raises the issue of maintainability of the present writ petition.
14. List before Vacation Bench on 30th June 2021. C.M. No.18934/2021 (ad interim ex parte relief)
15. Mr. Nayyar submits that debarment order dated 29.04.2021 would seriously hamper other contracts, both on-going and future, which the petitioner has, or proposes to have, with various entities dealing with medical equipments and supplies in the country.
16. Issue notice.
17. Dr. Harsh Pathak, learned counsel accepts notice on behalf of the sole respondent/AIIMS; and seeks time to file reply.
18. Let reply be filed within 05 days; rejoinder thereto, if any, be field before the next date of hearing, with advance copy to the opposing counsel.
19. List before Vacation Bench on 30th June 2021.
ANUP JAIRAM BHAMBHANI (VACATION JUDGE) JUNE 23, 2021 Ne W.P. (C) 5989/2021 Page 3 of 3