Calcutta High Court
M/S Saraogi Udyog Pvt. Ltd vs Elangovan Sanjay Sampath on 6 September, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Sugato Majumdar
CS-COM/726/2024
[OLD NO. CS/64/2019]
M/S SARAOGI UDYOG PVT. LTD.
VS
ELANGOVAN SANJAY SAMPATH
For the Plaintiff : Mr. Satadeep Bhattacharya, Adv.
Mr. Uttam Sharma, Adv.
Ms. Vrinda Kedia, Adv.
Hearing concluded on : 03/09/2024
Judgment on : 06/09/2024
Sugato Majumdar, J.:
This is an undefended suit praying, inter alia, for recovery of price of goods
sold.
The plaint case may be summarized as follows:
i) The Plaintiff is a company registered under the Companies' Act 1956
having registered office at 2nd Floor, 21, Hemanta Basu Sarani,
Kolkata - 700001, engaged in the business of trading of coke and
coal.
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ii) The Defendant is carrying on business under the name and style of
Karun Group of Companies as sole proprietor thereof. The
Defendant represents its group of companies one of which is M/s
Trivikrama Industries Ltd.
iii) On 12/07/2017, a contract was executed between the Plaintiff and
the Defendant whereunder the Plaintiff was required to deliver
around 3800 M.T. plus minus ten percent, Indonesian steam non-
cocking coal in bulk to the Defendant from Tuticorin Port on "as is
where is" basis. The written contract contains detailed terms and
conditions. The Defendant signed the contract and forwarded same
to the Plaintiff by way of a covering e-mail dated 12/07/2017. The
e-mail was received by the Plaintiff at its registered office within
jurisdiction of this Court.
iv) Subsequently, the quantity of the coal, to be supplied, was reduced
to 2586 M.T. It was agreed upon that the price of the goods would
be Rs.2900/- per M.T. excluding taxes. It was also agreed upon that
the Defendant would open a letter of credit in favour of the Plaintiff.
v) Finally, the parties agreed upon supply of 835.58 M.T. coal. The
contract dated 12/07/2017 stood modified to that extent.
vi) The Defendant opened a letter of credit on 21/07/2017 in favour of
the Plaintiff through its' banker Tamilnad Mercantile Bank Ltd.
vii) The Defendant could make arrangements of around 33 trucks for
transportation of the required coal in the month of August, 2017 for
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the aforesaid quantity of 835.58 M.T. coal. The aforesaid quantity
of coal was supplied by the Plaintiff to the Defendant between
07/08/2017 and 20/08/2017. The Defendant accepted the said
quantity of coal without any demur or protest. The cargo handling
agent being M/S Seaways Shipping Pvt. Ltd. issued truck loading
and vehicle chit for admission and delivery of cargo which evidence
delivery of the goods to the Defendant.
viii) On delivery of goods, the Plaintiff raised invoices for a total amount
of Rs.29,82,633/- against supply of the aforesaid quantity of the
coal, namely, 835.58 M.T.
ix) On 21/10/2017, the Defendant sent an e-mail to the Plaintiff stating
therein that G.S.T filing with respect to the sales made to the
Defendant was not done. In response, the Plaintiff asked from the
Defendant their G.S.T. details for filing the same. The Defendant
replied the same.
x) The Plaintiff, through its' banker Central Bank of India, Main
Branch, Kolkata - 700001 had issued bill of exchange as against
the Defendant's letter of credit for negotiation thereof for a sum of
Rs.29,82,633/- being the price of the goods sold.
xi) The letter of credit was amended from time to time, prior to
issuance of the bill of exchanges.
xii) The Defendant's banker, in terms of the letter dated 07/09/2017,
informed the Plaintiff that the Defendant had refused to make
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payment of the Plaintiff's dues in terms of the letter of credit. It was
further stated that there occurred certain discrepancies in the
documents/bills submitted by the Plaintiff. It was also alleged that
the documents were submitted by the Plaintiff after expiry of the
letter of credit. The Defendant, confirmed by e-mail dated
25/09/2017 to open a fresh letter of credit to resolve the issue.
xiii) In spite of assurances and in spite of repeated demands, the
Defendant neglected and failed to pay the price of the goods.
xiv) On being constrained, the Plaintiff instituted the instant suit
praying, inter alia, price of goods sold and delivered being a sum of
Rs.29,82,633/- along with interest at a rate of 18% per annum w.e.f
28/02/2019.
Writs of summons were served upon the Defendant in spite of which the later
did not appear to contest the suit. Hence the suit was marked as undefended suit by
the co-ordinate Bench in terms of the Order dated 28/03/2023. The Plaintiff
adduced oral and documentary evidences. Documentary evidences were marked
variously on being exhibited.
Ext. B is the written contract which is the genesis of the instant suit. This
contract dated 12/07/2017, containing various terms and conditions, were executed
between the Plaintiff and one Karun Group of Companies. It is mentioned in the
contract that Karun Group of Companies, styled as buyer therein is a company
having registered office at 514/2B, Arcot Road, River View Colony, Manapakkam,
Chennai - 600125. Prima facie, this is a company and not a proprietorship concern
represented by sole proprietor. Although it is averred in the plaint that the
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Defendant is the sole proprietor of Karun Group of Companies, Ext.B being the
aforesaid contract does not prove that. Name of the Defendant is nowhere
mentioned as sole proprietor of the aforesaid Karun Group of Companies. Name of
the Defendant does not appear in any of the correspondences which are adduced in
evidence. All the challans being Ext.F (collectively) are in the name of Karun Group
of Companies. Ext.E is a letter dated 17/09/2017 issued by the authorized signatory
of the Karun Group of Companies, acknowledging receiving of goods. The name of
the Defendant is not here also. No scrap of paper is filed by the Plaintiff or adduced
in evidence to show that the Defendant is the sole proprietor of the Karun Group of
Companies so as to fasten him with contractual liabilities.
On the other hand, Ext.B shows that Karun Group of Companies is a registered
body being company with whom the contract was entered into and goods were
supplied. Therefore, all the contractual liabilities fall on that Karun Group of
Companies being a necessary party to the suit, absence of whom in the present suit is
fatal. That company is a necessary party without whom no decree can be passed. On
the other hand, no evidence is adduced by the Plaintiff to establish that the present
Defendant is liable for the price of goods, as claimed in the instant suit. Therefore, it
is inevitable conclusion that the suit must fail.
Hence it is ordered that the instant suit is dismissed on merit.
The instant suit is disposed of along with all the pending applications, if any.
(SUGATO MAJUMDAR, J.)
