RSA No.470 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.470 of 2008 Date of Decision: December 09, 2009 Crystal Pharmaceuticals, 365, Model Town Ambala .........Appellant Versus State of Haryana and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr. N.C.Kinra, Advocate for the appellant. Ms.Maloo Chahal, Deputy Advocate General, Haryana for respondent No.1 Mr.Vibhav Jain, Advocate for respondent No.2 ** Sabina, J. Plaintiff filed a suit for recovery as damages. The said suit of the plaintiff was decreed by the Civil Judge (Senior Division) Ambala vide judgment and decree dated 17.11.2006. Aggrieved by the same, the defendant filed an appeal and the same was allowed by the Additional District Judge Ambala vide judgment and decree dated 17.10.2007. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Facts of the case are that the plaintiff (Crystal Pharmaceuticals) filed a suit for recovery of Rs.3 lacs as RSA No.470 of 2008 2 damages against the defendants with the averments that the plaintiff-firm is running the business of manufacturing quality medicines at Ambala City. The defendant-State of haryana has given licence to the plaintiff-firm for manufacturing various types of medicines including Ibuprofen tablets I.P. 200 mg as well as 400 mg. After manufacturing, the plaintiff-firm supplied Ibuprofen tables IP 400 mg to the Medical Superintendent, Medical College and Hospital, Rohtak, as per their order dated 11.9.1995. the District Drugs Inspector, Rohtak, took a sample of the aforesaid Ibuprofen tablets IP 400 mg from the Medical Store of Medical College and Hospital, Rohtak, on 8.11.1995. In due course of time, the same was sent by the District Drugs Inspector to the Govt. Analyst, Haryana, Chandigarh for analysis. The same was analysed by defendant-Kamlesh Jain (Govt, Analyst) and she gave her report No. 2093 dated 5.12.1995 to the effect that “assay of the Ibuprofen tablets in question was found to be more than the prescribed limit”. According to the said Govt. Analyst, the IP limit was 190-210 mg, whereas, the Ibuprofen tablets in question contained 394 mg. It is pleaded in the plaint that after receipt of the said report, the Deputy Medical Superintendent, Medical College and Hospital, Rohtak, returned the stock of Ibuprofen tablets to the plaintiff firm and demanded the amount of Rs.19437.60 ps back as cost of 70,000 tablets purchased by them. According to the plaintiff, act of defendant-Kamelsh Jain in giving her report dated 5.12.1995 declaring the Ibuprofen tablets IP 400 mg as not of standard quality, is an act of malice on her RSA No.470 of 2008 3 part with a motive to defame the plaintiff firm in its business and good will. It is further pleaded in the plaint that in a similar case of M/s Bengal Immunity Limited, Calcutta, the sample of drug by the name of Rifampicin capsule 450 mg was sent by the Drugs Inspect, Sonepat for analysis and the same was also declared by defendant-Kamlesh Jain as not of standard quality vide her report No. 3256 dated 20.7.1993 on the ground that the “assay of Rifampicin capsule was more than the prescribed I.P. Limits”. This matter was brought to the notice of Drugs controller of India by the Director, Health Services, Haryana vide his letter dated 15.3.1994 for providing guidelines, upon which, the Drugs Controller of India held that the sample of Rifampicin is of standard quality and he further told that statement in usual strength is a guideline and it is not a statutory provision. It is further pleaded in the plaint that it is beyond the scope of imagination that a tablet of 400 mg should contain a salt only to the extent of 190/210 mg as against 380/420 mg. Thus, according to the plaintiff, report of defendant-Kamlesh Jain is motivated and in clear violation of the guidelines issued by the defendant-State of Haryana and other competent authorities which shows her malice to ruin the business of the plaintiff-firm. According to the further case of the plaintiff-firm, the defendant-Kamlesh Jain has declared drug of similar specification i.e. Ibuprofen tablet IP 400 mg manufactured by other companies as of standard quality which also shows that defendant-Kamlesh Jain has mis-used her public office with malafide intention and sinister motive to cause RSA No.470 of 2008 4 damage to the goodwill and reputation of the plaintiff-firm. After the report of defendant-Kamlesh Jain, certain customers of the plaintiff-firm cancelled their orders and a great financial loss was suffered by the plaintiff-firm. The plaintiff firm sent a representation to defendant-Kamlesh Jain vide letter dated 15.1.1996 but to no effect. Thereafter, a legal notice under Section 80 of the CPC was served upon the defendants but the needful was not done. Hence, the suit for recovery of Rs.3 lacs as damages for causing financial loss, effecting good will and reputation of the plaintiff-firm alongwith interest at the rate of 18% per annum. 3. The said suit was contested by the defendants. In their written statement, it was,inter-alia, pleaded by the defendants that the suit is barred under Section 37 of the Drugs and Cosmetics Act, 1940. Various other preliminary objections were also taken which shall be reflected in the issues. On merits, it was, inter-alia, pleaded that report dated 5.12.1995 issued by defendant-Kamlesh Jain is in the exercise of her statutory functions and powers as Haryana State Govt. Analyst, under Section 25 of the Drugs and Cosmetics Act, 1940. It was further pleaded that after the receipt of report dated 5.12.1995, the plaintiff had the right to challenge the same within 28 days under the provisions of sections 25(3) and (4) of the said Act by getting the remaining portion of the sample tested from the Central Drugs Laboratory, Calcutta. It was further pleaded that this was not done and hence, the plaintiff-firm was estopped from filing the present suit. It was further pleaded that RSA No.470 of 2008 5 Indian Pharmacopoela of the year 1985 (IP 85) issued by the Govt. of India Ministry of Health and Family Welfare does not permit Ibuprofen tablet of more than 200 mg strength and,thus, defendant-Kamelsh Jain declared the drug in question manufactured by the plaintiff-firm, as not of prescribed standard and to be more than that. It was further pleaded that defendant Kamlesh Jain, thus, did not give any wrong report or with any malafide or other considerations. It was further pleaded that report of the Govt. Analyst is final unless the same is superseded by the report from Central Drugs Laboratory. Other plaint averments were denied and controverted and it was prayed that the suit may be dismissed”. On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff firm is a registered partnership firm ? OPP 2.If issue No.1 proved, whether Sh.T.C.Kansal is one of its registered partners?OPD 3.Whether the plaintiff is entitled to recover damages from the defendants. If so what amount?OPP 4.Whether the suit is bad for non-joinder of necessary parties?OPD 5.Whether the suit is barred by Section 37 of the Drugs and Cosmetics Act, 1940?OPD 6. Relief.” RSA No.470 of 2008 6 After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed The question that requires consideration is as to whether the reports which were furnished by respondent No.2 were due to malice. Admittedly, the reports qua the samples of Ibuprofen tablets taken from the premises of Medical College Hospital Rohtak which had been supplied by the plaintiff furnished by the defendant No.2 were later found to be incorrect by the Central Drugs Laboratory. Thus, defendant No.2 had given wrong report qua the samples of the plaintiff, yet to attribute malice on the part of defendant No.2 qua furnishing of the report is another issue. Plaintiff was required to establish on record by leading cogent and convincing evidence that the defendant No.2 with malice had given wrong reports qua the samples of the plaintiff. Learned counsel for the appellant has failed to convince me that the wrong reports were furnished by defendant No.2 on account of malice. Defendant No.2 might have been negligent in performing her duties or might have given wrong reports due to any other reason yet learned counsel for the appellant has failed to point out from the record that due to any particular reason or past incident, defendant No.2 was having any grievance against the plaintiff and due to this reason she had maliciously submitted wrong reports qua the samples of the plaintiff. Learned counsel for the respondent has submitted that all the inquiries which were initiated against defendant No.2 has since been dropped. Defendant No.2 has since retired from service. In these circumstances, learned Additional District Judge had rightly dismissed the RSA No.470 of 2008 7 suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 09, 2009 arya