Calcutta High Court
Pratishtha Commercial Private Limited vs Orissa State Cooperative Milk ... on 3 October, 2024
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
GA No. 1 of 2023
In
CS-COM No. 451 of 2024
(Old No. CS 302 of 2022)
Pratishtha Commercial Private Limited
Versus
Orissa State Cooperative Milk Producer's
Federation Limited
Mr. Jishnu Chowdhury
Mr. Pranit Bag
Mr. Debdatta Saha
Ms. Patrali Ganguly
Ms. Bhawna Parasramka
... for the plaintiff.
Mr. Nemani Srinivas
Mr. Biswajib Ghosh
Mr. M.K. Singh
... for the defendant.
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Hearing Concluded On : 12.08.2024
Judgment on : 03.10.2024
Krishna Rao, J.:
1. The defendant has filed the present application for rejection of plaint and dismissal of suit. The plaintiff has filed the suit against the defendant for a decree of sum of Rs.1,99,93,259/- being the interest due to delay in payment.
2. The defendant says that on perusal of plaint, it would be evident that no cause of action is disclosed in favour of the plaintiff to file the suit against the defendant. The defendant further says that the suit is also bad in law for non-joinder of parties.
3. The defendant says that the documents relied by the plaintiff clearly shows that the entire alleged cause of action arose in the State of Orrisa and this Court has no jurisdiction to entertain the suit filed by the plaintiff.
4. The defendant says that the documents relied by the plaintiff are forged and fabricated and no reliance can be made on the said documents. The defendant says that the original invoices raised by the plaintiff does not contained any clause for payment of interest as the same are in consonance with the terms and conditions of the tender documents, wherein there is no provision for payment of interest. 3
5. The plaintiff submits that the plaint discloses a cause of action. He submits that none of the ingredients of Order VII, Rule 11 of the CPC, 1908, is satisfied in the application filed by the defendant.
6. The plaintiff says that the allegation of non-joinder of necessary party is concern, the National Cooperative Dairy Federation of India is neither a necessary party nor a proper party in the instant suit. He submits that the purchase orders issued by the defendant and the plaintiff has supplied materials in terms of the supplied orders to the defendant and thus there is no necessity to make the Federation as party to the suit. He submits that non-joinder of party cannot be a ground for rejection of plaint under Order VII, Rule 11 of the CPC, 1908.
7. The plaintiff says that at the time of filing of the suit, on the prayer made by the plaintiff, this Court has granted leave under Clause 12 of the Letters Patent, 1865 on being satisfied with the pleadings of the plaint and the defendant has not file any application for revocation of leave granted under Clause 12 of the Letters Patent, 1865.
8. The plaintiff says that this Court has the jurisdiction to try and dispose of the suit filed by the plaintiff. The plaintiff says that on receipt of invoices from the plaintiff, the defendant has made payment belatedly and thus the plaintiff has filed the present suit claiming interest upon principal amount for delay in payment.
9. The first contention raised by the defendant that the suit filed by the plaintiff does not discloses cause of action. The plaintiff has filed the 4 suit for recovery of money being the interest on delayed payment. The defendant has issued several purchase orders for the procurement of raw materials for the use in cattle feed and mineral mixture feed. Pursuant to the purchase orders, the plaintiff has supplied and delivered to defendant. After supply of materials, the plaintiff has raised invoices. As per the contention of the plaintiff, the defendant has to make payment within 50 days from receipt of invoices and in case of failure to make payment, the defendant shall be liable to pay interest at the rate of 24% per annum. The defendant has made payment much beyond the period of 50 days from receipt of invoices and the plaintiff has demanded interest but the defendant failed to pay interest, the plaintiff has filed the present suit.
10. In paragraphs 8 and 9 of the plaint, the plaintiff has categorically sated that the plaintiff on various occasions reminded and requested the defendant for payment of outstanding amount towards interest but the defendant failed to pay the same. The plaintiff had also sent emails to the defendant requesting for payment of interest but the defendant in spite of receipt of the emails, has not paid interest and finally, the plaintiff through its Advocate had sent a legal notice calling upon the defendant for payment of interest of Rs. 1,99,93,259/- on 17th May, 2022, the said notice was also served upon the defendant but defendant has not paid the amount claimed by the plaintiff.
11. In paragraph 10 of the plant, the plaintiff also stated that before filing of the suit, the plaintiff has initiated pre-institution mediation but 5 inspite of receipt of notice, the defendant has not appear in the mediation process and the plaintiff has filed the present suit.
12. Considering the above pleadings in the plaint, this Court finds that sufficient cause of action has been disclosed and it cannot be said that the suit filed by the plaintiff does not discloses cause of action.
13. The defendant has raised the point of jurisdiction of this Court. The defendant is outside of the jurisdiction of this Court but had sent purchase orders to the plaintiff at the registered address of the plaintiff within the jurisdiction of this Court. The plaintiff has raised invoices from its registered office within the jurisdiction of this Court and payments were received by the plaintiff in its bank account maintained with the HDFC Bank, Bura Bazar Branch, Kolkata, within the jurisdiction of this Court. The plaintiff has sent emails to the defendant from the registered office of the plaintiff and the Learned Advocate of the plaintiff has sent legal notice to the defendant calling upon the defendant within the jurisdiction of this Court.
14. Considering the above, this Court finds that sufficient cause of action arose within the jurisdiction of this Court and thus it cannot be said that, this Court has no jurisdiction to try and dispose of the suit filed by the plaintiff.
15. As regard to the non- joinder of parties, the same cannot be a ground for rejection of plaint under Order VII, Rule 11 of the CPC, 1908. The specific case of the plaintiff, the defendant has issued purchase orders 6 to the plaintiff and as per requirement of the defendant, the plaintiff has supplied materials to the defendant and the plaintiff has raised invoices against the materials supplied.
16. The defendant has paid the amount of the invoices raised by the plaintiff but there was delay in payment. The plaintiff raised claim of interest at the rate of 24% per annum against the defendant and the defendant has denied for the same. Thus considering the above, this Court finds that the National Cooperative Dairy Federation of India is not the necessary party in the present suit.
17. Now the question whether the invoices raised by the plaintiff contained any clause for payment of interest of 24% per annum for nonpayment of invoice amount within 50 days from the receipt of invoices.
18. The plaintiff while filing of the suit has disclosed purchased orders issued by defendant and invoices raised by plaintiff. In some of the purchase orders under the "Payment Terms" it is mentioned that "100% within 50 days against quality report". In some of the purchase orders, it is mentioned "100% payment within 50 days of acceptance".
19. In the Tax Invoices, in the middle portion, it is mentioned that "INTEREST @ 24% WILL BE CHARGED IF PAYMENT IS NOT MADE WITHIN DUE DATE".
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20. The defendant by way of supplementary affidavit, disclosed Tax Invoices issued by the plaintiff wherein no clause of any payment of interest is mentioned.
21. The defendant has filed the present application for rejection of the plaint and dismissal of suit one of the ground that the plaintiff has filed the suit by disclosing forged and fabricated documents. The plaintiff claims that as per invoices, the plaintiff is entitled to get interest at the rate of 24% per annum as the defendant has not paid the amount within 50 days from receipt of materials.
22. Both the parties have relied upon two separate documents. In an application, under Order VII, Rule 11 of the CPC, 1908, the Court cannot decide the genuineness of the document. The parties have to prove their document by way of an evidence. Thus, this Court is of the view that the stand taken by the parties are required to be decided during trial.
23. In view of the above, G.A. No. 1 of 2023 is dismissed.
(Krishna Rao, J.)