Calcutta High Court
Ivl Dhunseri Petrochem ... vs Epitome Petrochemical Pvt. Ltd on 15 February, 2021
ORDER SHEET
OC-2
IA NO. GA/1/2020
(OLD NO. GA/12/2020)
IN CS/257/2019
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL DIVISION
IVL DHUNSERI PETROCHEM INDUSTRIES PVT. LTD.
VERSUS
EPITOME PETROCHEMICAL PVT. LTD.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date: 15th February, 2021.
(Via Video Conference)
Appearance:
Mr. Rajarshi Dutta, Adv.
Mr. V.V.V. Sastry, Adv.
Ms. Shinika Tiwari, Adv.
Mr. Sourav Kumar Mukherjee, Adv.
Mr. Pradeep Pandey, Adv.
The Court: In a suit for recovery of price of goods sold and delivered, the
plaintiff seeks decree of judgment upon admission.
Learned advocate appearing for the plaintiff submits that, the plaintiff sold
and delivered diverse goods to the defendant. He draws the attention of the
Court to the schedule of the invoices that the plaintiff raised on behalf of the
defendant. He submits that, the defendant made part payments from time to
time. A huge amount became outstanding when the parties started holding
discussions for the purpose of facilitating the defendant to liquidate the dues. He
refers to three of the minutes of such meetings. He submits that, so far as the
meeting dated July 13, 2017 is concerned, there is a murmur in the affidavit in
opposition to the effect that the Chairman of the defendant did not sign such
minutes. He refers to the next meeting dated July 7, 2017 which refers to the
earlier minutes dated January 13, 2017 and submits that, the same chairman of
the defendant was present on July 7, 2017 and no objection was taken with
regard to the contents of the minutes dated January 13, 2017. He submits that,
there is a subsequent meeting. He refers to the minutes dated July 10, 2019
where, the defendant agreed to pay. He refers to an electronic mail dated July
27, 2019 emanating from one of the group companies of the defendant. He
draws the attention of the Court to the fact that, such electronic mail contained a
statement of account. In such statement of account the defendant acknowledged
a sum of Rs.67,44,603.03 as due and payable by the defendant to the plaintiff.
He submits that the defendant did not disclose any defence in the affidavit in
opposition and in fact, the defendant does not have any defence.
Learned advocate appearing for the defendant submits that the defendant
will file a counter claim in the written statement. He submits that the parties
did not hold discussions. The parties agreed that the defendant will be provided
with discounts. Discounts as agreed were not provided. He refers to page 26 of
the affidavit in opposition and submits that, the defendant is entitled to a
discount in excess of Rs.45 lakhs. He submits that there are quality disputes
with regard to the goods sold and delivered. Therefore, at this stage, no decree
should be passed.
As noted above, the suit is for price of goods sold and delivered. The
plaintiff claims a decree for a sum of Rs.1,40,45,114.90 along with interest
thereon from the defendant in the plaint.
The plaintiff relies upon invoices which the plaintiff raised upon the
defendant in respect of the supply of goods. The jural relationship of buyer and
purchaser between the defendant and the plaintiff is not disputed. The fact that
the plaintiff sold and delivered the goods to the defendant is not disputed.
The parties held negotiations between themselves so as to ensure that the
defendant pays the claim of the plaintiff. The discussions apparently were
minuted. There is a minutes of the meeting dated January 13, 2017 in which
the defendant acknowledges a sum of Rs.1.73 crores excluding interest to be due
and payable. It is claimed on behalf of the defendant that the defendant did not
sign such minutes. However, such claim is without any basis inasmuch as, the
minutes of the meeting dated January 13, 2017 was considered on July 7, 2017
when, the defendant did not raise any objection with regard to the minutes dated
January 13, 2017. Again on July 7, 2017, the defendant acknowledged amounts
to be due and payable to the plaintiff and promised to pay the same. There is
another minutes dated July 10, 2019 where again, the defendant acknowledged
its liability and promised payment.
There is an e-mail dated July 27, 2019 by which, the defendant through
one of its sister concern promise to pay the plaintiff a sum of Rs.67,44,603.03.
The e-mail was written by the Chairman of the defendant who was negotiating
with the defendant.
As on July 27, 2019 therefore, a sum of Rs.67,44,603.03 stands admitted
by the defendant at the very least. The goods were sold and delivered by the
plaintiff to the defendant for the period from May 31, 2016 till October 7, 2016.
There are credit notes issued by the plaintiff to the defendant for a value of
Rs.11,68,400/- for the period again from May 31, 2016 till October 7, 2016. The
acknowledgements of liability by the defendant are subsequent to the invoices as
well as the credit notes. As noted above, the defendant in the electronic mail
dated July 27, 2019 acknowledged a sum of Rs.67,44,603.03 without making
any whisper with regard to the alleged discounts that the defendant claims that it
is entitled to.
In such circumstances, the defendant having acknowledged a sum of
Rs.67,44,603.03 unconditionally there will be a decree of judgment on
admission to such extent.
So far as interest is concerned, I find there is no agreement as to interest
between the parties. However, as the transactions between the parties are
commercial in nature, the plaintiff is entitled to interest at the rate of 12% per
annum on and from July 27, 2019 on the sum of Rs.67,44,603.03 until
realization thereof. The claim on account of interest for the period prior to July
27, 2019 and the other claims, are left to be decided at the trial of the suit.
IA GA N.1 of 2020 in CS No.257 of 2019 is disposed of accordingly.
Affidavits filed in Court be taken on record.
Leave is granted to the learned advocate on record for the defendant to file
his Vokalatnama in the department.
(DEBANGSU BASAK, J.)
sp/
