Calcutta High Court
Pratishtha Commercial Private Limited vs Orissa State Cooperative Milk ... on 3 October, 2024
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
GA No. 1 of 2023
In
CS-COM No. 451 of 2024
(Old No. CS 302 of 2022)
Pratishtha Commercial Private Limited
Versus
Orissa State Cooperative Milk Producer's
Federation Limited
Mr. Jishnu Chowdhury
Mr. Pranit Bag
Mr. Debdatta Saha
Ms. Patrali Ganguly
Ms. Bhawna Parasramka
... for the plaintiff.
Mr. Nemani Srinivas
Mr. Biswajib Ghosh
Mr. M.K. Singh
... for the defendant.
2
Hearing Concluded On : 12.08.2024
Judgment on : 03.10.2024
Krishna Rao, J.:
1. The defendant has filed the present application for rejection of plaint
and dismissal of suit. The plaintiff has filed the suit against the
defendant for a decree of sum of Rs.1,99,93,259/- being the interest
due to delay in payment.
2. The defendant says that on perusal of plaint, it would be evident that
no cause of action is disclosed in favour of the plaintiff to file the suit
against the defendant. The defendant further says that the suit is also
bad in law for non-joinder of parties.
3. The defendant says that the documents relied by the plaintiff clearly
shows that the entire alleged cause of action arose in the State of
Orrisa and this Court has no jurisdiction to entertain the suit filed by
the plaintiff.
4. The defendant says that the documents relied by the plaintiff are forged
and fabricated and no reliance can be made on the said documents.
The defendant says that the original invoices raised by the plaintiff does
not contained any clause for payment of interest as the same are in
consonance with the terms and conditions of the tender documents,
wherein there is no provision for payment of interest.
5. The plaintiff submits that the plaint discloses a cause of action. He
submits that none of the ingredients of Order VII, Rule 11 of the CPC,
1908, is satisfied in the application filed by the defendant.
6. The plaintiff says that the allegation of non-joinder of necessary party is
concern, the National Cooperative Dairy Federation of India is neither a
necessary party nor a proper party in the instant suit. He submits that
the purchase orders issued by the defendant and the plaintiff has
supplied materials in terms of the supplied orders to the defendant and
thus there is no necessity to make the Federation as party to the suit.
He submits that non-joinder of party cannot be a ground for rejection of
plaint under Order VII, Rule 11 of the CPC, 1908.
7. The plaintiff says that at the time of filing of the suit, on the prayer
made by the plaintiff, this Court has granted leave under Clause 12 of
the Letters Patent, 1865 on being satisfied with the pleadings of the
plaint and the defendant has not file any application for revocation of
leave granted under Clause 12 of the Letters Patent, 1865.
8. The plaintiff says that this Court has the jurisdiction to try and dispose
of the suit filed by the plaintiff. The plaintiff says that on receipt of
invoices from the plaintiff, the defendant has made payment belatedly
and thus the plaintiff has filed the present suit claiming interest upon
principal amount for delay in payment.
9. The first contention raised by the defendant that the suit filed by the
plaintiff does not discloses cause of action. The plaintiff has filed the
suit for recovery of money being the interest on delayed payment. The
defendant has issued several purchase orders for the procurement of
raw materials for the use in cattle feed and mineral mixture feed.
Pursuant to the purchase orders, the plaintiff has supplied and
delivered to defendant. After supply of materials, the plaintiff has raised
invoices. As per the contention of the plaintiff, the defendant has to
make payment within 50 days from receipt of invoices and in case of
failure to make payment, the defendant shall be liable to pay interest at
the rate of 24% per annum. The defendant has made payment much
beyond the period of 50 days from receipt of invoices and the plaintiff
has demanded interest but the defendant failed to pay interest, the
plaintiff has filed the present suit.
10. In paragraphs 8 and 9 of the plaint, the plaintiff has categorically sated
that the plaintiff on various occasions reminded and requested the
defendant for payment of outstanding amount towards interest but the
defendant failed to pay the same. The plaintiff had also sent emails to
the defendant requesting for payment of interest but the defendant in
spite of receipt of the emails, has not paid interest and finally, the
plaintiff through its Advocate had sent a legal notice calling upon the
defendant for payment of interest of Rs. 1,99,93,259/- on 17th May,
2022, the said notice was also served upon the defendant but
defendant has not paid the amount claimed by the plaintiff.
11. In paragraph 10 of the plant, the plaintiff also stated that before filing
of the suit, the plaintiff has initiated pre-institution mediation but
inspite of receipt of notice, the defendant has not appear in the
mediation process and the plaintiff has filed the present suit.
12. Considering the above pleadings in the plaint, this Court finds that
sufficient cause of action has been disclosed and it cannot be said that
the suit filed by the plaintiff does not discloses cause of action.
13. The defendant has raised the point of jurisdiction of this Court. The
defendant is outside of the jurisdiction of this Court but had sent
purchase orders to the plaintiff at the registered address of the plaintiff
within the jurisdiction of this Court. The plaintiff has raised invoices
from its registered office within the jurisdiction of this Court and
payments were received by the plaintiff in its bank account maintained
with the HDFC Bank, Bura Bazar Branch, Kolkata, within the
jurisdiction of this Court. The plaintiff has sent emails to the defendant
from the registered office of the plaintiff and the Learned Advocate of
the plaintiff has sent legal notice to the defendant calling upon the
defendant within the jurisdiction of this Court.
14. Considering the above, this Court finds that sufficient cause of action
arose within the jurisdiction of this Court and thus it cannot be said
that, this Court has no jurisdiction to try and dispose of the suit filed
by the plaintiff.
15. As regard to the non- joinder of parties, the same cannot be a ground
for rejection of plaint under Order VII, Rule 11 of the CPC, 1908. The
specific case of the plaintiff, the defendant has issued purchase orders
to the plaintiff and as per requirement of the defendant, the plaintiff
has supplied materials to the defendant and the plaintiff has raised
invoices against the materials supplied.
16. The defendant has paid the amount of the invoices raised by the
plaintiff but there was delay in payment. The plaintiff raised claim of
interest at the rate of 24% per annum against the defendant and the
defendant has denied for the same. Thus considering the above, this
Court finds that the National Cooperative Dairy Federation of India is
not the necessary party in the present suit.
17. Now the question whether the invoices raised by the plaintiff contained
any clause for payment of interest of 24% per annum for nonpayment
of invoice amount within 50 days from the receipt of invoices.
18. The plaintiff while filing of the suit has disclosed purchased orders
issued by defendant and invoices raised by plaintiff. In some of the
purchase orders under the "Payment Terms" it is mentioned that "100%
within 50 days against quality report". In some of the purchase orders,
it is mentioned "100% payment within 50 days of acceptance".
19. In the Tax Invoices, in the middle portion, it is mentioned that
"INTEREST @ 24% WILL BE CHARGED IF PAYMENT IS NOT MADE
WITHIN DUE DATE".
20. The defendant by way of supplementary affidavit, disclosed Tax Invoices
issued by the plaintiff wherein no clause of any payment of interest is
mentioned.
21. The defendant has filed the present application for rejection of the
plaint and dismissal of suit one of the ground that the plaintiff has filed
the suit by disclosing forged and fabricated documents. The plaintiff
claims that as per invoices, the plaintiff is entitled to get interest at the
rate of 24% per annum as the defendant has not paid the amount
within 50 days from receipt of materials.
22. Both the parties have relied upon two separate documents. In an
application, under Order VII, Rule 11 of the CPC, 1908, the Court
cannot decide the genuineness of the document. The parties have to
prove their document by way of an evidence. Thus, this Court is of the
view that the stand taken by the parties are required to be decided
during trial.
23. In view of the above, G.A. No. 1 of 2023 is dismissed.
(Krishna Rao, J.)
