12. Immediately after receiving the e-mail dated November 26, 2022
at page 47 to the petition, from the defendant, the plaintiff requested for
a joint inspection of the coal, which according to the plaintiff, was
rejected by the defendant.
13. In the said set of facts, learned senior Advocate Mr. Shyamal
Sarkar, appearing for the plaintiff submits that the law presumes that
the defendant has consumed the goods and therefore, it is an obligation
on the part of the defendant to pay the full purchase consideration to
the plaintiff. He also submits that when part consideration paid and the
goods have not been returned, it is the presumption of law that the
goods in its entirety have been consumed by the defendant without any
demur or objection. To support his contention, Mr. Sarkar has relied
upon the provisions laid down under Section 42 of the Sale of Goods
Act, 1930. In support, he has placed reliance upon the following
decisions:
(i) In the Matter of : Hardy & Company vs. Hillerns &
Fowler, reported at (1923) 2 KB 490;
(ii) In re : Andrew Yule & Co., reported at 1932 (59) Cal 928;
and
(iii) In the Matter of : Rosenthal & Sons Ltd. And Esmail,
reported at (1965) 1 WLR 1117.
14. Mr. Sarkar, learned senior Advocate then submits when there is a
single consignment and the consignee has accepted the part of it, it
amounts to a deemed acceptance of whole of it. He submits that the
alleged test report cannot be relied upon, since at the time of testing of
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the sample, none was present on behalf of the plaintiff, though the
report wrongly records their presence.
15. In view of the above Mr. Sarkar submits that, since there is no
defence on the part of the defendant to the case made out by the
plaintiff, prima facie, the balance sale consideration appears to be
payable by the defendant and hence, the defendant should be directed
to secure the claim of the plaintiff. In support, he has placed reliance
upon a decision of the Hon'ble Supreme Court In the matter of: Rahul
S. Shah vs. Jinendra Kumar Gandhi & Others, reported at 2021 (6)
SCC 418.
16. Mr. Sarkar further submits that coal being a natural product, the
gross calorific value of coal being the determining factor benchmark has
been mentioned as 5000 in the Purchase Order and depending upon the
said gross calorific factor, the value will vary proportionately.
17. Mr. Sarkar further submits referring to the SGS report at page 48
to the petition that, the SGS collected the stock pile sample which does
not give the correct assessment, hence the report itself is not reliable
and is contrary to the contract.
18. Mr. Jishnu Chowdhury, learned senior Advocate being ably
assisted by Mr. Sankarsan Sarkar, learned Advocate appearing for the
defendant, at the threshold, referring to the said e-mail dated November
26, 2022 at page 47 to the petition submits that immediately after
receiving the goods supplied by the plaintiff, it found that the goods
were not according to the agreed specification. The SGS report has also
confirmed the same. The defendant then forthwith through the said e-
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mail recorded its objection with regard to the specification and quality of
the goods supplied by the plaintiff and asked the plaintiff to take return
of the goods supplied by it.
19. All the subsequent e-mails and correspondence exchanged by and
between the parties disclosed in the petition, according to Mr.
Chowdhury, learned senior Advocate, would clearly demonstrate the
throughout the defendant contemporaneously has raised objections with
regard to the goods supplied by the plaintiff and all along it was a
consistent stand of the defendant requesting the plaintiff to take the
goods back. Referring to the relevant provisions from the Sale of Goods
Act, Mr. Chowdhury submits that once the purchaser requests the seller
to take back the goods supplied by it, due to objections raised by the
purchaser with regard to the quality and specification of the goods and
even though the seller does not take back the goods, this would never
foist any liability on the purchaser for making payment of the price of
goods.
20. Referring to Annexure-A at page 18 to the affidavit-in-reply filed
by the plaintiff, learned senior Advocate Mr. Chowdhury submits that
the plaintiff itself has offered to adjust a sum of Rs.41,84,718/- by
admitting the contention of the defendant raised with regard to the
quality and specification of the goods.
21. Mr. Chowdhury further submits referring to the first e-mail at
page 47 and thereafter all the subsequent e-mails and correspondence
exchanged by and between the parties, that, at the threshold, the
defendant has rejected the goods and asked the plaintiff to take it back.
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Therefore, it cannot be said that the goods have been consumed by the
defendant to its satisfaction. As a result, since the goods were not taken
back, the defendant had to mix it with higher grade of coal and was
compelled to consume the portion of the goods supplied.
22. Mr. Chowdhury submits that this is not a case where any
admitted amount is due and payable by the defendant. Even if any
liability could ultimately be found on the part of the defendant, for the
sake of argument, the same shall have to be gone into after trial of the
suit is complete and not at this stage. Mr. Chowdhury further submits
that it is not a case where an order of attachment can be made before
judgment. In support, Mr. Chowdhury has relied upon the following
decisions:
(i) In the Matter of : Sanghi Industries Limited vs. Ravin
Cables Ltd. & Anr., reported at 2022 SCC OnLine Sc
1329;
(ii) In the Matter of : Sesa International Limited vs. Avani
Projects and Infrastructure Limited and Others, reported
at 2017 SCC OnLine Cal 17757 : (2017) 4 CLT 524.
Decision:
23. After considering the rival contentions of the parties and upon
perusal of the materials on record, it appears to this Court that, the
defendant has raised an objection contemporaneously with regard to the
quality and specification of the goods supplied by the plaintiff through
its e-mail dated November 26, 2022, at page 47 to the petition, which
was immediately after receiving the goods from the plaintiff. The said e-
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mail also shows that the defendant had asked the plaintiff to take back
the goods. The contention of the defendant raised contemporaneously
regarding veracity of the objection on account of quality and
specification of the goods cannot be decided at this stage without going
into the trial of the suit. It is equally a fact that the claim made by the
plaintiff in the plaint is not an admitted claim.
24. The Sale of Goods Act, specifically provides that if the purchaser
raises an immediate objection with regard to the quality of the goods
and requests the seller to take it back, prima facie, it is sufficient
compliance of the obligation of the purchaser, when it has raised
objection with regard to quality and specification of the goods supplied
by the seller.
25. The worthiness or correctness of the report of SGS is also a matter
of trial. At this interim stage, it appears to this Court that, SGS was the
named expert agreed upon by and between the parties who shall inspect
the goods. The report of SGS at page 48 to the petition, prima facie,
shows the presence of plaintiff's representative at the time of sample
testing. When the plaintiff has denied the same, it automatically gives
rise to a triable issue which cannot be conclusively decided without
holding a proper trial of the suit.
26. From the averments made in the petition, it appears to this Court,
that no cast iron case has been made out against the defendant that it
intends to defraud the plaintiff, considering the nature and character of
the contemporaneous documents and correspondence exchanged by
and between the parties, which are on record. Attachment before
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judgment is also a discretionary relief and the Court has to exercise its
discretion judiciously on the basis of the existing facts.
27. It is true that with the promulgation of the Commercial Courts
Act, it is also the obligation of the Court to see that the parties in a
commercial transaction must act fairly and not to defraud each other. It
is, however, equally true that the existing facts and contemporaneous
documents on record are of great importance in a commercial
transaction. The correspondence exchanged by and between the parties
to a commercial transaction reflect the mind and intention of the parties
to the transaction. It is not an unimpeachable case made by the
plaintiff that the defendant will immediately fly away so that an
attachment before judgment is warranted.
28. The judgment cited on behalf of the plaintiff, as referred to above,
were all rendered at the final stage of trial and not at interim stage. In
view of the discussions made above, this Court is of the considered view
that the judgments relied upon by the plaintiff are not required to be
dealt with at this interim stage. However, depending upon the fact
finding enquiry being arrived at at the time of trial, the law laid down in
those judgments may have relevance on the issue but not at this interim
stage.
29. In the matter of: Rahul S. Shah (supra) the subject matter of
the suit being an immovable property was required to be protected.
Paragraph 4 of the report shows during the pendency of the suit, portion
of the land was sought to be transferred and/or had been transferred, in
that backdrop, the order of injunction was passed in exercise of power
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by the jurisdictional Civil Court under Section 151 of the Code. Whereas
the subject matter of the instant suit is the goods already supplied by
the plaintiff to the defendant and the defendant has partly consumed it.
Part payment of the purchase consideration has already been made by
the defendant. The part consideration allegedly unpaid, as claimed by
the plaintiff in its plaint, involves triable questions. So, unless the suit is
tried, those cannot be decided. Hence, the ratio laid down In the matter
of: Rahul S. Shah (supra) would not apply in the facts of the instant
case.
30. After the narration as narrated above, this Court is also of the
view that the decisions cited by the defendant objecting to the
attachment before judgment or the prayer for injunction as sought for
by the plaintiff or the direction as sought for by the plaintiff directing
the defendant to secure the amount, are not required to be discussed at
this stage.
31. In view of the aforegoing reasons and discussions, this Court is of
the firm and considered view that, no order can be passed on this
petition.
32. Accordingly, IA No:GA/1/2023 stands dismissed, without any
order as to costs.
33. After the judgment is pronounced in open Court, it is pointed out
that the interlocutory application has not yet been converted and re-
numbered as an interlocutory application filed in the commercial
division. This conversion is a technical issue, which shall not affect the
adjudication on the merit of the case in any way. Accordingly, by
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consent of the parties only to cure the procedural part, the application is
directed to be converted by the concerned department forthwith and to
mark it as an interlocutory application filed in a commercial suit by
registering as such following the rule.
34. It is once again made clear that this consent of the parties will be
restricted only for this procedural conversion of the application.
35. After the judgment is pronounced in open Court, the parties
through their respective learned Senior counsel submit jointly that the
parties are agreeable to avail the mediation process as the claim and the
counter claim of the defendant in the suit are pending for adjudication.
36. Considering the claim and the rival claim of the parties, Mr.
Abhijit Chatterjee, learned Senior Advocate, a member of the Bar, is
appointed and requested to mediate between the parties as Mediator.
His consolidated remuneration shall be paid by the parties in equal
halves for a total sum of Rs.5 lakhs. Learned Mediator shall be at
liberty to fix the costs and expenses for the secretarial purpose for
holding the mediation and the same shall also be paid equally by the
parties. The mediation shall be concluded within four months from the
first sitting. The Mediator shall file his report after the mediation will be
over.
(ANIRUDDHA ROY, J.)
sm
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