Kosc Industries Private Limited vs Lakhotia Infra Technologies Pvt. ...
2023 Latest Caselaw 1579 Cal/2

OCD-4
                                 ORDER SHEET

                                   AP/70/2023

                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                 ORIGINAL SIDE
                              (Commercial Division)

                     KOSC INDUSTRIES PRIVATE LIMITED
                                  Versus
                  LAKHOTIA INFRA TECHNOLOGIES PVT. LTD.


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
  Date : 14th July, 2023.

                                                                       Appearance:
                                                  Mr. Shounak Mukhopadhyay, Adv.
                                                      Mr. Vishwarup Acharyya, Adv.
                                                                 ...for the petitioner

                                                       Mr. Jishnu Chowdhury, Adv.
                                                            Mr. Rajarshi Dutta, Adv.
                                                              Mr. Deepak Jain, Adv.
                                                                ...for the respondent

The Court: This is an application filed by a supplier for interim relief

under Section 9 of the 1996 Act. The petitioner claims to have supplied

construction material, more specifically MS Props, to the respondent for a

duration of approximately nine months. There is no dispute that the

respondent received the goods and in fact returned some of the goods to the

petitioner.

The dispute now is on the admitted 600 units of goods retained/withheld

by the respondent for which the petitioner claims security. It is also admitted

that the respondent did not raise any complaint with regard to the goods and

the point of the alleged short-supply is disputed on behalf of the petitioner.

The affidavit-in-opposition unequivocally states that the respondent is

entitled to withhold 600 pieces of MS Props for the petitioner failing to return

the security cheques to the respondent. Since this is the stated position in the

respondent's affidavit-in-opposition, the Court requested learned counsel

appearing for the parties to hand up tabulations of the rent due for those 600

units at the agreed rate between the parties; there are four purchase orders

which constitute the agreement.

Learned counsel appearing for the respondent is fair enough to say that

the respondent has indeed held on to the 600 units and that the mathematical

calculation arrived at is not disputed at least at this stage.

The Chart shows that the petitioner supplied a total of 2000 units to the

respondent by October, 2019 of which 600 units were continued to be withheld

by the respondent. The rent for the balance 600 units from July, 2020 - July,

2023 (36 months) comes to Rs.17,28,000/-. The petitioner has already

received Rs.4,90,880/- from the respondent and hence the amount due as on

date is Rs.22,29,120/-.

The respondent shall hence secure the amount of Rs.22,29,120/- by way

of a cash deposit to be kept with the Registrar, Original Side within three weeks

from today. The Registrar will invest this amount in an interest bearing

account with a reputed Bank which is a constituent of the Reserve Bank of

India.

The ad interim order of injunction passed by the Division Bench in

favour of the petitioner on 2nd March, 2023 restraining the respondent from

alienating or disposing of the material lying with the respondent for a period of

three months from the date of the order is confirmed.

In passing this order, the Court has also considered the Supreme Court

decision in Rahul S. Shah vs. Jinendra Kumar Gandhi; (2021)6 SCC 418 and a

Single Bench judgment of the Bombay High Court in J.P. Parekh & Son vs.

Naseem Qureshi in Commercial Arbitration Petition No.629/2021 on the

requirement of a defendant in an action for payment of money to disclose his

assets on oath and the power of the Court to demand security to ensure

satisfaction of any decree in appropriate circumstances. Both the decisions are

found to be relevant.

AP/70/2023 is accordingly disposed of in terms of the above.

(MOUSHUMI BHATTACHARYA, J.)

bp.