Balaji Multiplex Pvt vs Garuda Investment (Pvt.) Ltd
2021 Latest Caselaw 239 Cal/2

ORDER SHEET
                                                                             OC-2

                             IA NO. GA/2/2020
                               IN CS/47/2019
                     IN THE HIGH COURT AT CALCUTTA
                   ORDINARY ORIGINAL CIVIL JURISDICTION
                          COMMERCIAL DIVISION



                        BALAJI MULTIPLEX PVT, LTD.
                                 VERSUS
                       GARUDA INVESTMENT (PVT.) LTD.



  BEFORE:
  The Hon'ble JUSTICE DEBANGSU BASAK

Date: 2nd March, 2021.

(Via Video Conference)

Appearance:

Mr. Rajarshi Dutta, Adv.

Mr. Rahul Auddy, Adv.

Mr. Rahul Poddar, Adv.

The Court: In a suit for recovery of money, the plaintiff seeks summary

judgment.

Learned advocate appearing for the plaintiff submits that the plaintiff and

the defendant entered into a contract by which the defendant was to sell

Arecanut (hereinafter referred to as the said goods) to the plaintiff at the agreed

consideration. The defendant raised two several invoices upon the plaintiff.

Under the contract, the plaintiff was required to pay an advance for the goods

which the plaintiff did. He submits that, in respect of the invoice dated August

29, 2017, the plaintiff paid US$ 99,000 to the defendant. In respect of the

invoice dated August 31, 2017, again the plaintiff paid a sum of US$ 99,000 to

the defendant. He submits that the defendant despite receipt of the payments,

did not supply any goods to the plaintiff. The plaintiff issued a demand notice

dated February 23, 2019. The defendant did not respond thereto. The plaintiff

filed the instant suit. The writ of summons was served on the defendant as will

appear from the report of the office of the Sheriff of Calcutta. He submits that, a

period of 120 days elapsed since the date of service of the writ of summons and

the defendant is yet to enter appearance in the suit or file written statement.

Therefore, he seeks summary judgment for the principal sum US$ 1,98,000

along with interest thereon.

In the facts of the present case, the plaintiff seeks recovery of a sum of US$

2,25,720 from the defendant. The plaintiff and the defendant entered into a

contract whereby and whereunder the defendant was to sell the goods to the

plaintiff at the agreed consideration. Pursuant to two invoices raised by the

defendant on the plaintiff, a sum of US$ 1,98,000 was paid by the plaintiff to the

defendant in two payments of US$ 99,000 each. Despite service of the writ of

summons the defendant did not enter into appearance in the suit. The

defendant did not file any written statement in this suit. The claim of the

plaintiff is substantiated and the defendant is not present before Court to contest

the same. It would be appropriate to pass a decree for US$ 1,98,000 in favour of

the plaintiff.

There is no agreement for interest between the parties. However, the

transactions between the parties are commercial in nature. It is certainly a

commercial dispute within the meaning of the commercial Courts Act, 2015. The

plaintiff is, therefore, entitled to interest on such transaction.

There will be a decree in favour of the plaintiff for interest calculated at the

rate of 12% per annum from the date of the last payment of the sum of US$

99,000 by the plaintiff to the defendant until realization on the decretal amount

of US$ 1,98,000 until realisation.

IA No. GA 2 of 2020 in CS 47 of 2019 is disposed of accordingly.

The department will draw up the decree as expeditiously as possible.

(DEBANGSU BASAK, J.)

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