Calcutta High Court
Mamta Jaiswal vs Apl Metals Limited on 23 August, 2023
OCD-13
ORDER SHEET
IA No. GA 1 of 2022
In
CS 142 of 2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
MAMTA JAISWAL
VS.
APL METALS LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 23rd August, 2023.
Mr. Souradeep Banerjee, Ms. Sanjana Sinha, Mr. Abhidipto
Tarafder, Advocates for petitioner.
Mr. Srijib Chakraborty, Mr. Aditya Mondal, Advocates for respondent.
The Court : In a suit for recovery of unpaid price of goods sold and
delivered this application inter alia for judgment on admission with a
further prayer directing the defendant to show cause and injunction has
been filed by the plaintiff.
The plaintiff says that the plaintiff had been supplying lead
(hereinafter referred to as 'goods') to the defendant. On 25th November, 2021
the plaintiff received a purchase order from the defendant for supply of
20,000 MT lead at the rate of Rs.1,79,000/- per MT. The goods so ordered
attract Central Goods and Service Tax (CGST) and State Goods and Service
Tax (SGST) at the rate of 9%. The aggregate value of the goods as per the
purchase order is Rs.35,80,000/- and after adding the goods and service
tax, the total value of the purchase order for 20,000 MT comes to
Rs.42,24,400/-. The goods were sold and delivered against the invoice
dated 28th November, 2021 for 20,220 MT. By adding the CGST and SGST
amount, the total invoice value for 20,220 MT of lead calculated at the unit
rate in the purchase order, is Rs.42,70,868 under the invoice dated 28th
November, 2021. The plaintiff says that the goods were admittedly delivered
to the defendant as will appear from the seat and signature of the defendant
in the transporter's bill and the invoice dated 28th November, 2021 annexed
to the application. The plaintiff also says that on 24th December,2021 the
defendant made part payment of Rs.25,00,000/- as will be reflected from
the account statement of the plaintiff's bank account maintained with Kotak
Mahindra Bank for the period 1st December, 2021 to 31st December, 2021.
The plaintiff says that despite lapse of a reasonable period of time for the
delivery of the goods, the defendant did not inform the plaintiff about the
rejection of the same and on the contrary dealt with it in a manner
inconsistent with the ownership of the plaintiff. The goods, therefore, should
be deemed to have been accepted by the defendant under the provisions of
Section 42 of the Sale of Goods Act, 1930. The plaintiff says that on 1st
March, 2022 the plaintiff through its Advocate issued a demand notice
claiming the outstanding sum of Rs.17,67,248/- with interest after
adjusting the part payment of Rs.25,00,000/- received by the plaintiff from
the defendant against the total debt owed to the plaintiff by the defendant
aggregating to Rs.42,70,868/-. The plaintiff also claimed interest at a rate of
18% per annum. The said notice dated 1st March, 2022 was duly received by
the defendant on 2nd March, 2022. The plaintiff also says that there is a
balance confirmation for the said principal sum of Rs.17,67,248/- on 23rd
February, 2022 which is also annexed to the application. The plaintiff,
therefore, seeks a decree for principal sum of Rs.17,67,248 with interest on
the basis of judgment on admission.
On behalf of the defendant it is submitted that the plaintiff is not
entitled to any relief under the provisions of Order XII Rule 6 of the Code of
Civil Procedure, 1908 (in short CPC) on admission as there is no
unequivocal admission either in pleading or otherwise as envisaged under
the provisions of Order XII Rule 6 of CPC in the instant case. Assuming
without admitting that the plaintiff has been able to establish her case
through the purchase order, invoice, bank statements and the TDS
certificate, at the highest the plaintiff can allege that they have supplied the
goods, part of the price whereof has remained unpaid. There is no
admission of any claim made by the plaintiff from the side of the defendant.
The balance confirmation, according to the defendant, was not received by
the defendant or signed by the defendant. The balance confirmation,
therefore, according to the defendant does not fasten any liability on the
defendant for suffering a decree under judgment on admission. The
defendant also relies on paragraph 8 of the affidavit-in-opposition wherein
the defendant says that it has not received the balance confirmation nor has
signed the same in this regard to support its argument. The defendant also
says that unless the balance confirmation is corroborated by any other
evidence, the same cannot independently fasten any liability on the
defendant. Although, the defendant tries to make out a case that the goods
were of inferior grade in the affidavit-in-opposition but the same is not
backed with any contemporaneous document.
After hearing the parties and considering the materials on record,
I find that the delivery of the goods are established. Following the provisions
of Section 42 of the Sale of Goods Act, 1930 and in particular no
contemporaneous document from the side of the defendant that the goods
are of inferior quality being produced, the goods in question are deemed to
have been accepted by the defendant. Once the goods are accepted, the
plaintiff for the delay in making payment becomes entitled to interest under
the provisions of Section 61 of the Sale of Goods Act, 1930 as and by way of
compensation from the defendant. In the instant case, the argument on
behalf of the defendant that there is no admission per se from the side of
the defendant in respect of the outstanding amount or any part thereof has
substance as the receipt of the invoice or acceptance of the goods or
deduction of tax deducted at source (in short TDS) does not qualify as to an
admission of liability for which a decree under judgment on admission can
be passed. It can only be construed as the admission of receipt of the goods
and its acceptance for which the defendant is liable to pay as per the price
quoted in the purchase order issued by the defendant. The balance
confirmation though fastens a liability on the defendant for having admitted
a principal sum of Rs.17,67,248/- but in view of the stand taken by the
defendant in its affidavit, I am not inclined to pass any decree on admission.
Although, the receipt and acceptance does not persuade the Court to pass a
decree on admission but at the same time, it cannot be lost track of that the
suit has been instituted in the Commercial Division of this Court arising out
of a commercial dispute and the receipt of the goods and acceptance thereof
prima facie fastens the defendant with the liability to pay for the same. In
such facts and circumstances, the plaintiff's interest is required to be
protected to strike a balance in allowing the defendant to go to trial by
securing the unpaid price. In view of the principle laid down in (2021) 6 SCC
418 (Rahul S. Shah Vs. Jinendra Kumar Gandhi), I find that this is an
appropriate case where the defendant should be directed to secure the
principal sum of Rs.17,67,248/- by way of cash security with the Registrar,
Original Side of this Court to the credit of the suit within 15th September,
2023, failing which there shall be automatic decree for the principal of
Rs.17,67,248/-. The interest portion in such a case will remain outstanding
to be decided in the suit. In the event the amount is deposited, the suit shall
proceed for trial when the parties will be free to take necessary steps. Till
the total amount of Rs.17,67,248/- is deposited, the defendant shall be
prevented from operating its bank accounts without leaving a balance of
Rs.17,67,248/- save and except for the purpose of depositing the money in
terms of the instant order.
It is made clear that on deposit of the amount as directed by this
order, the injunction in respect of the fixed assets and the bank account
shall stand withdrawn.
Nothing further remains to be adjudicated in this application.
The application being GA 1 of 2022 is accordingly disposed of
without any order as to costs.
(ARINDAM MUKHERJEE, J.)
