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. 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 supplied medicines were manufactured and tested in USFDA approved facilities then supplier need not to submit above third party NABL report (Certificate of Analysis), However supplier need to submit the proof that supplied medicines were manufactured and tested in USFDA facility. The Drugs and medicines supplied by the successful bidder shall be of the best quality and shall comply with the specifications, stipulations and conditions specified in the tender, D & C ant and Pharmacopoeia. The Drugs and medicines supplied by the successful bidder shall be of the best quality and shall comply with the specifications, stipulations and conditions specified in the tender, D & C ant and Pharmacopoeia. 13.6 If the bidder fails to execute the supply within the stipulated time, the Tender Inviting/Ordering Authority is at liberty to make alternative arrangement for purchase of the items of drugs and medicines for which the Purchase orders have been placed, from any other sources or in the open market or from any other bidder who might have quoted higher rates, at the risk and the cost of the supplier and in such cases the tender inviting authority/Ordering authority has every refuse to recover the cost and impose the penalty as per terms. However, bidder may refuse to accept the supply orders if the bidder has already received orders, from the Ordering Authority (ies), of the qty. equal to its annual production capacity. Unexecuted orders qty. due to non-supply of material beyond 60 days (75 days for injectable) shall not be counted. Such refusal of orders should be communicated to the ordering authority within 7 days of receipt of order to enable the authority to make alternative arrangements. No penalty shall be imposed in such cases. Beyond 7 days it would be deemed that the bidder has accepted the supply order and all terms and conditions of the bid document shall be applicable. 13.7 The order stands cancelled at the end of 90th day from the issue of the purchase order after levying penalty on the value of the unexecuted order. However, for Injectable drugs also the order stands cancelled at the end of 90th days, Further, the bidder shall also be liable to pay other penalties as specified. Security Deposit of such supplier may also be forfeited besides taking other penal action like blacklisting/debarring from participating in present and future tenders of the tender inviting authority etc. 13.8 It shall be the responsibility of the Bidder for any shortages/damage at the time of receipt in the respective district of the ordering authority. Tender inviting authority is not responsible for the stock of the drug received, for which no order is placed. 13.9 The bidder shall take back drugs, which are not utilized by the tender inviting Authority within the shelf life period based on mutual agreement. Tender inviting authority is not responsible for the stock of the drug received, for which no order is placed. 13.9 The bidder shall take back drugs, which are not utilized by the tender inviting Authority within the shelf life period based on mutual agreement. 13.10 If at any time the Bidder has, in the opinion of the Tender inviting authority/ordering authority, delayed the supply of drugs due to one or more reasons related to force Majeure events such as riots, mutinies, wars, fire, storm, tempest, unforeseen situation or other exceptional events, the time for supplying the drugs may be extended by the Tender inviting authority/ordering authority at its discretion for such period as may be considered reasonable. However such extension shall be considered only if a specific written request is made by the Bidder within 7days from the occurrence of such event. The exceptional cause does not include scarcity of raw material, power cut and labor disputes. 13.11 The supplier shall not be liable to pay LD/Penalty and forfeiture of the performance security for the delay in executing the contract on the extension of the supply period on the ground of above stated force majeure events. 13.12 Supplier has to enter supply detail and third party NABL testing certificate in MP Aushadhi Software, failing to which receipt and payment may not be proceed." 4. Annexure IX appended with the NIT stipulates the procedure for blacklisting. Clause 12 and 14 whereof stipulates: BLACKLISTING FOR NON-SUPPLY 12. The supplier should supply 100% of the ordered quantity at the designated places as per the schedule 45 days (60 days for injectables) from the date of purchase order otherwise relevant provisions of tender document (of non supply) shall be applied. Period of 45 days will be counted from the date of placement of online order. If the supplier fails to supply the ordered quantity after elapse of 60 days, then the risk and differential cost will be passed on to the original supplier as per conditions of the tender document. If payment for, any extra cost incurred by ordering authority on any procurement done against risk & cost after lapse of said period of 60 days from the date of issue of order, is not made by the concerned supplier within 15 days of issue of notice, then the extra payment done will be deducted from the security deposit of the concerned supplier. If recovery could not be effected from the security deposit due to the reason of its security deposit getting exhausted, then concerned supplier will be liable for blacklisting apart from any other penal actions and recovery proceedings that may be taken against it as per law. 14. (a) If the suppliers/s fail/s to execute the Purchase order and inform/s ordering authority about their inability to execute the order and in compliance of the Purchase order due to act of vis-majeure, then the ordering authority may pass appropriate order on merits of case." 5. The petitioner admittedly did not adhere to the time schedule for the delivery of medicine despite extended period of 45 days vide notice dated 16.03.2020 (Annexure P-6). The non supply of medicine led the Authority of Corporation issue notice on 18.06.2020 in the following terms: hindi pending 6. As the explanation were not found satisfactory, another show cause notice was issued on 07.07.2020 as to why the contract be not terminated and the firm be blacklisted, the notice is extracted below for ready reference: hindi pending 7. As the petitioner did not resume the supply of medicine/drugs within the time stipulated in the notice, by order dated 25.07.2020 the contract has been terminated with forfeiture of security and debarring for a period of two years. 8. Evidently, Clause 23 of the NIT provides forum for resolution of dispute. It stipulates: "23. RESOLUTION OF DISPUTES (i) The purchaser and the supplier shall make every effort to resolve, amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the contract. (ii) In case of a dispute or difference arising between the purchaser and a supplier relating to any matter arising out of or connected with this agreement, such dispute or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. The venue of arbitration shall be Bhopal." 9. As it is not the case of the petitioner that no show cause notice was given before terminating the contract or before blacklisting/debarring the petitioner, we are not inclined to cause indulgence as the petitioner has the efficacious remedy for resolving the dispute. 10. The venue of arbitration shall be Bhopal." 9. As it is not the case of the petitioner that no show cause notice was given before terminating the contract or before blacklisting/debarring the petitioner, we are not inclined to cause indulgence as the petitioner has the efficacious remedy for resolving the dispute. 10. A Full Bench of our High Court in Shri Gouri Ganesh Shri Balaji Constructions "C" Class Contractor vs. Executive Engineer, PWD, (2018) 3 MP LJ 163, while answering the following issues; viz, (1) Whether the dispute relating to termination of a contract without claiming any consequential relief is maintainable before the Arbitral Tribunal under the M.P. Madhyastham Adhikaran Adhiniyam, 1983? (2) Whether, under the guise of challenge to an action of termination of contract, the remedy under the M.P. Act can be said to be not available, when the real challenge is to the Revenue Recovery Certificate issued by the State for recovery of the loss/damages? (3) Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide? held: "29. The arbitration is a procedure to determine legal rights and obligations of the parties judicially with binding effect, which is enforceable in law. The arbitrators are appointed by the parties to do justice in the sense of arriving at a "fair decision" and not in the sense of "judicial justice". The arbitrator is not bound by a strict Law of Evidence as contained in the Indian Evidence Act, 1872. Section 1 of the Evidence Act contemplates that such Act is not applicable to proceedings before an arbitrator. In fact, a resolution of dispute by an Arbitrator is one of the four alternative dispute resolution mechanism contemplated by section 89 of the Code of Civil Procedure, 1908. Such adjudication process is outside the adjudicatory functions of the Court. As per the Halsbury's Law of England, 4th Edition (1973), Vol. 2 p. 255, para 502, the "arbitration" is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary processes of law; a domestic tribunal - as contra-distinguished from a regularly organized Court proceeding according to the course of law. As per the Halsbury's Law of England, 4th Edition (1973), Vol. 2 p. 255, para 502, the "arbitration" is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary processes of law; a domestic tribunal - as contra-distinguished from a regularly organized Court proceeding according to the course of law. The relevant extract, reads as under:-- "An arbitration is a reference to the decision of one or more persons of a particular matter in difference between the parties" (Collins v. Collins, 28 LJ Ch 186, per ROMILY M.R. The process of arbitration means the determination of a matter in dispute by the judgment of one or more persons called arbitrators). It is the submitting of a disputed matter to the judgment of one or more persons called arbitrators. "In its broadest sense, arbitration is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary processes of law; a domestic tribunal-as contra-distinguished from a regularly organised Court proceeding according to the course of law-depending upon the voluntary act of the parties disputant in the selection of judges of their own choice. Its object is the final disposition, in a speedy and inexpensive way, of the matters involved, so that they may not become the subject of future litigation between the parties". 30. The Supreme Court in its judgment reported as (1987) 4 SCC 497 , Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar examined the purport and scope of arbitration. The Court held as under:-- "5. It is familiar learning but requires emphasis that section 1 of the Evidence Act, 1872 in its rigour is not intended to apply to proceedings before an arbitrator. P.B. Mukhaiji, J. as the learned Chief Justice then was, expressed the above view in Haji Ebrahim Kassam Cochinwall v. Northern Indian Oil Industries Ltd., AIR 1951 Calcutta 230 and we are of the opinion that this represents the correct statement of law on this aspect. Lord Goddard, C.J. in Mediterranean and Eastern Export Co. P.B. Mukhaiji, J. as the learned Chief Justice then was, expressed the above view in Haji Ebrahim Kassam Cochinwall v. Northern Indian Oil Industries Ltd., AIR 1951 Calcutta 230 and we are of the opinion that this represents the correct statement of law on this aspect. Lord Goddard, C.J. in Mediterranean and Eastern Export Co. Ltd. v. Fortress Fabrics Ltd., [1948] 2 All E.R. 186 observed at pages 188/189 of the report as follows: "A man in the trade who is selected for his experience would be likely to know and indeed to be expected to know the fluctuations of the market and would have plenty of means of informing himself or refreshing his memory on any point on which he might find it necessary so to do. In this case according to the affidavit of sellers they did take the point before the Arbitrator that the Southern African market has slumped. Whether the buyers contested that statement does not appear but an experienced Arbitrator would know or have the means of knowing whether that was so or not and to what extent and I see no reason why in principle he should be required to have evidence on this point any more than on any other question relating to a particular trade. It must be taken I think that in fixing the amount that he has, he has acted on his own knowledge and experience. The day has long gone by when the Courts looked with jealousy on the jurisdiction of the Arbitrators. The modem tendency is in my opinion more especially in commercial arbitrations, to endeavour to uphold Awards of the skilled persons that the parties themselves have selected to decide the questions at issue between them. If an Arbitrator has acted within the terms of his submission and has not violated any rules of what is so often called natural justice the Courts should be slow indeed to set aside his award. 6. This in our opinion is an appropriate attitude." 31. The Supreme Court in a judgment reported as (2006) 13 SCC 322 , Paramjeet Singh Patheja v. ICDS Ltd. examined the difference between the Courts and arbitral tribunals and held that the litigation is a legal action in a Court of law whereas arbitration is the resolution of a dispute between the two contracting parties by the persons chosen by them to be arbitrators. The Supreme Court held as under:-- "35. That litigation is therefore very different from arbitration is clear. The former is a legal action in a Court of law where judges are appointed by the State; the latter is the resolution of a dispute between two contracting parties by persons chosen by them to be arbitrators. These persons need not even necessarily be qualified trained judges or lawyers. This distinction is very old and was picturesquely expressed by Edmund Davies, J. in these words: "Many years ago, a top-hatted gentleman used to parade outside these law Courts carrying a placard which bore a stirring injunction 'Arbitrate don't Litigate" 36. Moreover, the position that arbitrators are not Courts is quite obvious and this Court noted the position as under in two decisions: "16. But the fact that the arbitrator under section 10A is not exactly in the same position as a private arbitrator does not mean he is a tribunal under Article 136. Even if some of the trappings of the Court are present in his case, he lacks the basic, the essential and the fundamental requisite in that behalf because he is not invested with the State's inherent judicial power He is not a Tribunal because the State has not invested him with its inherent judicial power and the power of adjudication which he exercises is derived by him from the agreement of the parties." (Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874 .)" (emphasis supplied) "4. There was no dispute that the arbitrator appointed under section 19(1)(b) [of the Defence of India Act, 1939] was not a Court. (Collector v. Gauri Shankar Misra, AIR 1968 SC 384 )" 37. Thus the thrust of submissions made by both the learned senior counsel can be summarized as under: Courts are institutions invested with the judicial power of the State to finally adjudicate upon disputes between litigants and to make formal and binding orders and decrees. Civil Courts pass decrees and orders for payment of money and the terms 'decree and order' are defined in the CPC. Arbitrators are persons chosen by parties to adjudge their disputes. They are not Courts and they do not pass orders or decrees for the payment of money; they make awards." 32. Civil Courts pass decrees and orders for payment of money and the terms 'decree and order' are defined in the CPC. Arbitrators are persons chosen by parties to adjudge their disputes. They are not Courts and they do not pass orders or decrees for the payment of money; they make awards." 32. A Constitution Bench in a judgment reported as (1992) 1 SCC 508 , Secretary, Irrigation Department, Government of Orissa v. G.C. Roy, while examining the right of an Arbitrator to award pendente lite, held that arbitration is substitution of the forum of Civil Court. The relevant conclusion reads as under:-- "43 (i) xxxxxxx (ii) An arbitrator is an alternative form (sic forum) for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. If the arbitrator has no power to award interest pendente lite, the party claiming it would have to approach the Court for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings. (iii) An arbitrator is the creature of an agreement. It is open to the parties to confer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are not opposed to law. (The proviso to section 41 and section 3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The arbitrator must also act and make his award in accordance with the general law of the land and the agreement. xxxxxxxx 33. In view of the above, we find that the arbitration is resolution of disputes between two contracting parties by the persons chosen by them to be arbitrators and in the case of arbitration under the State Act, by statutory constituted Tribunal. An Arbitrator is to do justice in the sense of arriving at a fair decision and is not bound by strict law of evidence as contained in Indian Evidence Act. However, the Arbitrator while arriving at a fair decision has to keep in mind the law applicable to the contract and to the facts of the matter before it." 11. Furthermore, in M/s. Prestressed Concrete Industries through its partners Naresh Agarwal & Ors vs. M.P.M.K.V.V.C.L. & Ors: Writ Petition NO. However, the Arbitrator while arriving at a fair decision has to keep in mind the law applicable to the contract and to the facts of the matter before it." 11. Furthermore, in M/s. Prestressed Concrete Industries through its partners Naresh Agarwal & Ors vs. M.P.M.K.V.V.C.L. & Ors: Writ Petition NO. 3189/2019 decided on 26.06.2019 by Gwalior Bench of this Court, it is held: "It is borne out from the agreement that Clause 32 contains the Arbitration Clause which provides: "32. ARBITRATION: If, at any time, any question, dispute or difference, whatsoever shall arise between the purchaser and the supplier, upon, or in relation to or in connection with the contract, either party may forthwith give to the other, notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the adjudication of two Arbitrators, one to be nominated by the purchaser and the other to be nominated by the supplier. In the case of said Arbitrators not agreeing, the matter shall be referred to the adjudication of an Umpire, to be appointed by the Arbitrators, whose, decision shall be final and binding on the parties. The arbitration shall be conducted as per provision of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam 1983, as amended from time to time, and of the rules made there under. The Arbitrators or the Umpire as the case may be, are bound to give a detailed speaking award assigning reasons for the findings. Supplies under the contract shall be continued by the Supplier during the arbitration proceedings, unless otherwise, directed in writing by the purchaser or unless the matter is such that the work cannot possibly be continued until the decision of the Arbitrator or of the Umpire, as the case may be, is issued." In "Bisra Lime Stone Co. Ltd. Vs. Orissa SEB [ (1976) 2 SCC 167 ]", it is held by their Lordships: "24. It is then submitted that this Court should not use its discretion in favour of arbitration in a matter where it is a pure question of law as to the power of the Board to levy a surcharge. This submission would have great force if the sole question involved were the scope and ambit of the power of the Board under Sections 49 and 50 of the Act to levy a surcharge, as it was sought to be initially argued. This submission would have great force if the sole question involved were the scope and ambit of the power of the Board under Sections 49 and 50 of the Act to levy a surcharge, as it was sought to be initially argued. The question in that event may not have been within the content of Clause 23 of the agreement. But all questions of law, one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the court has discretion under Section 34 of the Arbitration Act or under Article 226 of the Constitution and that the court is better posted to decide such questions. The arbitration Clause 23 is a clause of wide amplitude taking in its sweep even interpretation of the agreement and necessarily, therefore, of Clause 13 therein. We are therefore, unable to accede to the submission that we should exercise our discretion to withhold the matter from arbitration and deal with it ourselves." In "Sanjana M. Wig Vs. Hindustan Petroleum Corpn. Ltd. [ (2005) 8 SCC 242 ]", it is held by their Lordships: "12. The principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious. Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefore the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application [See Titagarh Paper Mills Ltd. v. Orissa SEB (1975) 2 SCC 436 and Bisra Stone Lime Co. Ltd. v. Orissa SEB) (1976) 2 SCC 167 ]." In "Empire Jute Company Limited And others vs. Jute Corporation of India Limited and another [ (2007) 14 SCC 680 ]", their Lordships were pleased to observe: "18. The power of judicial review vested in the superior courts undoubtedly has wide amplitude but the same should not be exercised when there exists an arbitration clause. The Division Bench of the High Court took recourse to the arbitration agreement in regard to one part of the dispute but proceeded to determine the other part itself. The power of judicial review vested in the superior courts undoubtedly has wide amplitude but the same should not be exercised when there exists an arbitration clause. The Division Bench of the High Court took recourse to the arbitration agreement in regard to one part of the dispute but proceeded to determine the other part itself. It could have refused to exercise its jurisdiction leaving the parties to avail their own remedies under the agreement but if it was of the opinion that the dispute between the parties being covered by the arbitration clause should be referred to arbitration, it should not have proceeded to determine a part of the dispute itself." Since the petitioner has an efficacious, alternative remedy for resolving the dispute by taking recourse to arbitration, we are not inclined to cause an indulgence." 12. Since there exist an efficacious, alternative statutory remedy for resolving the dispute which arises due to termination of contract, we are not inclined to cause any indulgence in a writ petition under Article 226 of the Constitution. The petitioner is relegated to avail the remedy as per Clause 23 of the General Conditions of Contract. 13. The writ petition is disposed of finally in above terms. No costs.