Calcutta High Court
Messrs Bajrang Steel Trading Co. ... vs Biplab Das on 12 June, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
CS 14 of 2016
Messrs Bajrang Steel Trading Co. (India) Pvt. Ltd.
Versus
Biplab Das
Ms. Arunima Lala
Ms. Saolini Bose
Mr. Nikunj Berlia
... for the plaintiff.
Hearing Concluded On : 01.05.2024
Judgment on : 12.06.2024
Krishna Rao, J.:
1. The present suit is filed by the plaintiff for a decree of a sum of
Rs.55,60,528/- along with interim interest and interest upon judgment
at 24% per annum.
2. The plaintiff is carrying on business in manufacturing, dealing and
trading in different specifications of iron and steel materials, such as
MS Plates/H.R. Coil, HR Sheet/MS Sheet/BP Sheet, MS angles/MS
channel etc.
3. The defendant is carrying on business under the name and style of "A
to Z Engineering" as a sole proprietor.
4. In or about June, 2009, the defendant approached the plaintiff, for the
purpose of obtaining various types of iron and steel materials of diverse
quantities and specifications.
5. The parties orally agreed for the supply, delivery and sale of the
aforesaid goods on the basis of the following terms and conditions:
a) The defendant from time to time would place
its orders for purchase of the said goods from
the plaintiff at the office of the plaintiff within
the jurisdiction according to the requirements
of the defendant from time to time at the rates
agreed to by and between the parties.
b) The plaintiff would sell, supply, and deliver to
the defendant the said goods so ordered by
the defendant at the aforesaid factory of the
defendant outside the jurisdiction and would
thereafter raise and submit its bills/invoices
for the price of the said goods sold by the
plaintiff to the defendant.
c) The defendant shall pay to the plaintiff the
price of the said goods sold, supplied and
delivered by the plaintiff together with loading
charges and costs along with delivery delivery
charges, if incurred by the plaintiff, to the
defendant immediately on receipt
of bills/invoices, so raised and submitted by
the plaintiff to the defendant and/or within the
time agreed by and between the parties.
d) It was agreed that the defendant would not be
charged delivery charges if the goods were
delivered by their own transport to the
defendant from the godown of the plaintiff.
e) It was agreed that the defendant shall also
supply the excise duty and VAT (Value Added
Tax) as applicable from time to time on the
said goods to be sold and delivered to the
defendant by the plaintiff.
f) Interest would be charged at the agreed rate
of 24% per annum if the bill/invoice is not paid
by the defendant to the plaintiff on
presentation of the same or on the agreed due
date as the case may be.
g) The accounts between the parties shall be
current and continuous.
h) The payment shall be made by the defendant
at the aforesaid office of the plaintiff.
i) All dealing and transactions by and between
the parties shall be subject to Kolkata
jurisdiction only.
6. According to the terms and conditions of the contract entered into by
and between the parties, the defendant from time to time placed various
orders upon the plaintiff for supply of various quantities and qualities of
the goods at the agreed rates during the period from 5th June, 2009 to
22nd November, 2010 and such delivery of the goods were accepted by
the defendant without any demur or protest with regard to quality
and/or any other issues related to the delivered goods.
7. The plaintiff raised bills/invoices in accordance with the goods that
were sold and supplied to the defendant.
8. The defendant had made part payment towards the said goods sold and
delivered and the defendant also issued a cheque of Rs.5,00,000/-,
bearing the Cheque No. '603084' on 13th October, 2010 but the said
cheque was dishonoured with the endorsement "Funds Insufficient".
9. The defendant thereafter failed and neglected to make further payment
of the dues arising out of the goods that were sold and supplied to the
defendant by the plaintiff in accordance with the agreed terms and
conditions.
10. The plaintiff apart from filing the instant suit had also initiated
proceedings under Section 156(3) of the Criminal Procedure Code in the
Court of the Learned Chief Metropolitan Magistrate, Calcutta being
Case No. C/9359 of 2014 on 10th March, 2014 whereupon an FIR has
also been lodged with the police and the said proceeding is still pending.
11. The plaintiff had sent a notice dated 14th July, 2015, through its
Advocate, calling upon the defendant to pay the balance amount along
with interest but the said notice returned as undelivered.
12. The plaintiff has also published the legal notices in the English and
Bengali daily newspaper but inspite of publication of the notices, the
defendant has neither sent any reply nor has made payment,
accordingly, the plaintiff has filed the present suit.
13. The defendant had entered appearance in the instant suit and filed
their written statement. The defendant had alleged the following:
(a) The quality of goods delivered are inferior.
(b) The plaintiff supressed a huge number of
payment statements to inflate its demands.
(c) There are no outstanding dues of the
defendant.
(d) A sum of Rs.18,59,608.04/- has been paid in
cash for which no receipt has been issued by
the plaintiff.
14. On the basis of the Written Statement filed by the defendant and on the
basis of the plaint filed by the plaintiff, the parties had frame the
following issues:
(i) Whether the suit is maintainable in its present
form?
(ii) Whether the goods were supplied and
delivered as per the requirements of the
defendant?
(iii) Whether the plaintiff is entitled to recover for a
sum of Rs.55,60,528/- along with interest @
24% per annum on account of goods sold and
delivered?
(iv) Whether the plaintiff is entitled to the decree
as prayed for?
(v) To what extent of reliefs is the plaintiff entitled
to?
15. The plaintiff in order to prove its case has examined one witness,
namely, Mr. Shashi Churiwala, who is the Management Executive of the
plaintiff company.
16. The plaintiff has also exhibited a total number of 10 (Ten) documents,
which are marked as "Exhibit - A to Exhibit - J", they are as follows:
Exhibit - A (Collectively): Certified copies of
Challans, issued by the plaintiff to the defendant,
during the period of 2010-2011.
Exhibit - B (Collectively): Certified copies of Tax
Invoices, issued by the plaintiff to the defendant,
from the year 2009 till 2011.
Exhibit - C (Collectively): Copies of Paper
Publication done by the plaintiff, one on The
English newspaper 'The Statesman' and one on the
Bengali newspaper 'Anandabazar Patrika',
demanding the monies due by the defendant to the
plaintiff.
Exhibit - D (Collectively): Copies of statements of
account of the plaintiff, which shows the part
amount received by the defendant.
Exhibit - E (Collectively): A copy of a letter dated
20th May, 2011, issued by the plaintiff to the
defendant, asking him to make payments.
Exhibit - F (Collectively): Copies of Excise
Invoices get pass which was issued along with
Commercial Invoices for taking the CENVAT Benefit
from 20th May, 2010 to 22nd November, 2010.
Exhibit - G: Copy of a letter dated 14th July, 2015,
issued by the plaintiff to the defendant regarding
the amount due.
Exhibit - H: Certificate under Section 65B of
Indian Evidence Act, 1822.
Exhibit - I: Copy of Interest Calculation given to
the defendant for claiming interest for delayed
payment and non-payment of bills.
Exhibit - J: Bank Statements of plaintiff from ING
Vysya Bank Limited, for the period of 2009 to
2011.
17. Exhibit "A" are copies of several challans for the period of 5th June,
2009 to 22nd November, 2010, which proves that according to the
understanding and agreement between the parties, the plaintiff had
supplied, delivered and sold the goods as specified by the defendant and
the same were accepted by the defendant without any demur or protest.
and Exhibit "B" and "F" are copies of invoices/bills with regard to the
materials supplied and delivered to the defendant.
18. The plaintiff has made out a case that an amount of Rs.55,60,528/- is
due and payable by the defendant and also in order to release its due
payable to the plaintiff, the defendant had made part payments which
has not been proved by the plaintiff, even after the plaintiff had
exhibited its bank statements, i.e. Exhibit "I" and Exhibit "J", and also
had given an Account Confirmation, i.e. Exhibit "D" . The plaintiff had
failed to specify as to on which date part payments were made by the
defendant as well as the Account Confirmation shows that an amount
of Rs.67,23,911.08/- to be payable which is contrary to the plaintiff's
case.
19. The plaintiff has made out a case that the defendant is liable to pay the
balance principal amount of Rs.19,39,406/- and interest at the rate of
24% per annum from 31st December, 2015 which amounts to
Rs.36,21,122/- but the plaintiff has not disclosed anywhere either in
the plaint or in the evidence that what was to the total cost of the
materials and how much amount has been paid by the defendant to the
plaintiff. The plaintiff has relied upon Exhibit "I" i.e. interest
calculation sheet and as per the evidence of the plaintiff, Exhibit "I"
given to the defendant but there is no evidence to prove that the said
document was received by the defendant. The plaintiff has also
exhibited statement of account of ING VYSYA Bank Limited of the
related to the plaintiff's firm from the year 2009 to 2011 but the
plaintiff has not proved which of the transaction is related to the
defendant.
20. The plaintiff says that the last payment was made by the defendant on
4th February, 2013 but the plaintiff has not proved the last payment
was made on 4th February, 2013. The bank statements which the
plaintiff has relied upon is only upto the year 2011 and from the said
document also it is not proved that the defendant has made last
payment on 4th February, 2013. The plaintiff has relied upon the
account confirmation for the year 2009 to 2011 which is marked as
Exhibit "D" collectively but in the said document as on 4th March,
2011, the closing balance shown as Rs.34,89,406.08/- which is not in
conformity with the claim of the plaintiff.
21. Notice sent by the plaintiff to the defendant through the Learned
Advocate dated 20th May, 2011, is marked as Exhibit "E" and in the
said notice, the plaintiff has claimed Rs.34,89,406.08/- and as per the
evidence of the plaintiff, the notice was received by the defendant but in
the plaint, the plaintiff has not made out such case and also not
mentioned about the said notice. At the time of evidence, the plaintiff
has also relied upon the notice dated 14th July, 2015, being Exhibit "G"
sent to the defendant but there is no evidence on record to prove
whether the said notice was actually sent to the defendant as there is
neither any postal receipt nor any acknowledgement due. The plaintiff
has also exhibited two original daily newspaper publication of "The
Statements" and "Ananda Bazar Patrika" dated 22nd September, 2015,
wherein the plaintiff has published a legal notice issued to the
defendant wherein it is mentioned that the Learned Counsel for the
plaintiff had sent a notice to the defendant by Registered post with A/D
and by Speed Post but both the notices were returned unserved as the
defendant avoided to receive the said notice but the undelivered notices
were not exhibited during the evidence of the plaintiff.
22. The defendant entered appearance and had filed written statement but
thereafter inspite of several opportunities, the defendant has not come
forward for complete the discovery and inspection of documents and
failed to appear in the suit and the suit is proceeded in the absence of
the defendant.
23. Considered the plaint, written statement, evidence of the plaintiff and
the documents relied by the plaintiff. The plaintiff has not proved what
was the total cost of the materials supplied by the plaintiff to the
defendant and how much amount has been paid by the defendant to
the plaintiff. The plaintiff has made out the specific case that the last
payment was made by the defendant on 4th February, 2013 but the
plaintiff failed to prove the same. As per the bank statement,
confirmation of account, challans and tax invoices all the transactions
are till 2011 and the plaintiff has filed the suit on 27th January, 2016,
thus the suit filed by the plaintiff is barred by limitation.
24. In view of the above, this Court finds that the plaintiff failed to prove
the case and the suit is also barred by limitation.
25. C.S. No. 14 of 2016 is dismissed. Decree be drawn accordingly.
(Krishna Rao, J.)
