Calcutta High Court
Ivl Dhunseri Petrochem ... vs Epitome Petrochemical Pvt. Ltd on 11 August, 2021
ODC-4
ORDER SHEET
IA No. GA/3/2021
In
CS/257/2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IVL DHUNSERI PETROCHEM INDUSTRIES PVT. LTD.
VS
EPITOME PETROCHEMICAL PVT. LTD.
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 11th August, 2021.
[Via video conference]
Appearance:
Mr. Rajarshi Dutta, Adv.
Mr. V.V.V. Sastry, Adv.
Mrs. Shivika Tiwari, Adv.
... for the petitioner
Mr. Bratin Kr. Dey, Adv.
Mr. Pradip Pandey, Adv.
Mr. Gaurav Singh, Adv.
... for the respondent
The Court : This is an application for summary judgment under Order
XIII-A of The Code of Civil Procedure, 1908 as amended by The Commercial
Courts Act, 2015. The suit has been filed on account of price of goods sold and
delivered by the plaintiff to the defendant. Learned counsel appearing for the
plaintiff/petitioner submits that by an order of a co-ordinate Bench dated 15th
February, 2021, an application for judgment on admissions filed by the petitioner
was decreed in favour of the petitioner for a sum of Rs.67.44 lakhs. Counsel
submits that the present application is for the balance sum of approximately
Rs.72.36 lakhs for the price of goods which the petitioner sold and supplied to
the respondent. Counsel places a schedule of invoices for the goods amounting to
Rs.1.95 crores and five meetings held between the parties, the Minutes of which
show unequivocal admission on the part of the Chairman of the respondent of
sums being due and owing to the petitioner. According to counsel, by a
communication dated 27th July, 2019, the respondent suddenly varied its stand
in relation to the outstanding amount. Counsel submits that there is extreme
urgency in the matter since the respondent is now before the National Company
Law Tribunal in respect of corporate insolvency proceedings initiated against the
respondent.
Learned counsel appearing for the respondent submits that the petitioner
did not give monthly discount to the respondent as was agreed between the
parties. Counsel wishes to file an affidavit to bring such factual matters on
record.
Upon hearing learned counsel, this Court is convinced that the
respondent through the meetings held between the parties admitted to a sum of
Rs.1.73 crores excluding interest which became Rs.1.42 crores on account of
payments made by the respondent to the petitioner. After admitting to the
amount of Rs.1.42 crores, there appears to be no basis for the respondent to
suddenly contradict the said amount and agree to Rs.67.44 lakhs. The point of
objection taken on behalf of the respondent with regard to the agreed rate of
discount was considered by the co-ordinate bench but was rejected and the suit
was decreed in favour of the petitioner to the extent of Rs.67.44 lakhs. There are
specific averments in the present application to the effect that insolvency
proceedings have commenced against the respondent. There is every likelihood,
therefore, that the petitioner's claim may be frustrated if the Court does not
intervene at the proper stage. It is also not disputed that the decreed amount of
Rs.67.44 lakhs has not been received by the petitioner although the said order
has not been challenged by the respondent till date. It may also be mentioned
that the respondent has not filed its written statement despite the summons
being served on 2nd January, 2020.
In view of the above, there shall be an order restraining the respondent
from dealing with its assets or properties without first keeping aside a sum of
Rs.72.36 lakhs to the credit of the suit. The respondent shall be at liberty to
bring other facts on record by an affidavit which shall be filed within two weeks;
reply within a week thereafter. The interim order shall remain in force for a
period of six weeks from date.
List this matter after three weeks.
(MOUSHUMI BHATTACHARYA, J.)
RS
