Calcutta High Court
Subhash Murarka vs Besco Limited on 13 July, 2022
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
CS 62 of 2018
Subhash Murarka
Versus
Besco Limited
Mr. Sankarsan Sarkar, Adv.
Mr. Sunil Kr. Singhania, Adv.
Ms. Twinkle Kaur, Adv.
.....For the Plaintiff
Heard on : 14.06.2022
Judgment on : 13.07.2022
Krishna Rao, J.: The plaintiff has filed this suit for recovery of an amount
of Rs. 35,80,000/- against the defendant along with interest.
The facts of the case are as follows:-
"The plaintiff is a proprietor of M/s. Subhash Enterprises and is
carrying on the business dealing in S.S. Mig. wires, Co2 Mig. wires and
welding electrodes and other products.
The defendant was carrying the business as manufacturer of
railway wagons. In the Month of December, 2014, the plaintiff and the
defendant entered into an oral agreement for supply of S.S. Mig. wires,
Co2 Mig. wires and welding electrodes and accordingly the defendant
had placed purchase orders to the plaintiff for supply of the said
articles. In terms of the purchase orders of the defendant, the plaintiff
during the month of December, 2014 to November, 2015 from time to
time had delivered the said materials at agreed rates at the workplace
of the defendant. The said goods were duly received and accepted by
the defendant without raising any objection as to quantity, quality,
specification or otherwise.
After supply of the materials to the defendant, the plaintiff had
raised invoices of payment. The invoices issued by the plaintiff was
duly received by the defendant without any objection for a total some of
Rs. 53,56,948/-. Out of the total amount, the defendant had paid an
amount of Rs. 25,60,100/- to the plaintiff but the defendant has not
paid the balance of Rs. 27,96,848/- to the plaintiff. The defendant has
made the last payment to the plaintiff on 20.11.2015.
In spite of several requests made by the plaintiff, the defendant
has not made the balance payment to the plaintiff and accordingly on
06.03.2018, the plaintiff had sent a legal notice calling upon the
defendant for payment of the balance of amount Rs. 27,96,848/-.
Inspite of receipt of the legal notice, the defendant has not paid the
unpaid amount and accordingly the plaintiff has filed the instant suit."
It appears from Order dt. 02.09.2019 that after the going through the
report of the Deputy Registrar (Court and Judicial) dt. 10.12.2018 and the
service report of the Deputy Sheriff, Calcutta dt. 18.07.2019, this Court had
listed the matter as "Undefended Suit" as in spite of receipt of writ of
summons of the instant suit, the defendant had not entered appearances to
contest the instant suit.
The plaintiff was examined and during his examination, the following
documents were exhibited:-
"(i) Purchased Order No. LO/WGN/14-15/0040 dt. 13.09.2014
containing six pages - Exhibit A collectively.
(ii) Tax invoices and Challan dt. 02.01.2015, 31.03.2015, 16.05.2015,
28.05.2015, 10.06.2015, 26.06.2015, 08.07.2015, 10.08.2015,
27.08.2015 and 19.11.2015 - Exhibit B collectively.
(iii) Copy of the inspection report issued by Besco Limited - Exhibit C
collectively.
(iv) Copy of the Inspection Certificates issued by the Rites Limited -
Exhibit D collectively.
(v) Copy of the letter dt. 07.09.2016 issued by the defendant to the
plaintiff - Exhibit E collectively.
(vi) Copy of Email sent to the defendant requesting for payment dt.
30.01.2015 and 21.03.2015 - Exhibit F.
(vii) Copy of letter issued by Uttam Agarwal and Association dt.
28.10.2017 confirmation from the defendant with regard to the balance
amount of Rs. 27,96,848/- Exhibit G.
(viii) Copy of the notice issued by the plaintiff to the defendant dt.
06.03.2018 - Exhibit H."
Exhibit A proves that the defendant has placed an order for supply of
materials from time to time and Exhibit B proves that the materials along
with invoices have been received by the defendant. Exhibit C also proves
that the materials have been placed to the Besco Limited for inspection.
Exhibit D proves that the materials supplied by the plaintiff to the defendant
were duly inspected by the Rites Limited. Exhibit E proves that the plaintiff
had sent a letter to the defendant with the request for payment of Rs.
40,46,848/-. Exhibit F proves that the plaintiff had sent demand to the
defendant requesting for making payment. Exhibit G proves that an amount
of Rs. 27,96,848/- is due to be paid by the defendant to the plaintiff. Exhibit
H proves that the plaintiff had sent a notice to the defendant calling upon
the defendant for payment of an amount of Rs. 27,96,848/- along with
interest.
It is the specific case of the plaintiff that the plaintiff is running the
business of S.S. Mig. wires, Co2 Mig. wires and welding electrodes and other
products and the defendant being the manufacturer of railway wagons had
placed an order for supply of materials and accordingly, the plaintiff had
supplied materials for a total amount of Rs. 53,56,948/- but out of the total
amount, the defendant had only paid Rs. 25,60,100/- and inspite of several
requests made by the plaintiff, the defendant failed to pay the balance
amount of Rs. 27,96,848/-.
As the defendant in spite of the receipt of notice of the suit had not
appeared in the suit and the suit was proceeded as "Undefended Suit" and
during the evidence, the plaintiff has proved that the plaintiff has supplied
to material amounting to Rs. 53,56,948/- but the defendant had only paid
Rs. 25,60,100/-. From Exhibit G, the Account Confirmation letter issued by
the Chartered Accountant during auditing the Balance Confirmation from
the defendant which confirmed that an amount of Rs. 27,96,848/- is due to
paid by the defendant to the plaintiff.
It is the specific case of the plaintiff that the defendant has made last
payment to the plaintiff on 20.11.2015 and the plaintiff had issued notice to
the defendant on 06.03.2018 but the defendant failed to pay the amount
and accordingly the plaintiff has filed the suit in the month of September,
2019 and as such the suit is within time as prescribed under law.
After considering the evidence of the plaintiff and the documents
exhibited by the plaintiff, this Court finds that the plaintiff has duly proved
the case and accordingly, the plaintiff is entitled to get an amount of Rs.
27,96,848/- along with interest @ 12 % per annum from 19.11.2015 till the
realization of the decretal amount. Hence, the defendant is directed to pay
an amount of Rs. 27,96,848/- along with the interest @ 12 % per annum
from 19.11.2015 till the date of realization of the amount within the period
of sixty (60) days from date.
CS 62 of 2018 is disposed of. Decree be drawn accordingly.
(Krishna Rao, J.)
