Calcutta High Court

Mamta Jaiswal vs Apl Metals Ltd on 31 January, 2025

                 IN THE HIGH COURT AT CALCUTTA
                           (ORIGINAL SIDE)
                       COMMERCIAL DIVISION



Present:

The Hon'ble Justice Krishna Rao



                      CS (COM) No. 391 of 2024

                       (Old No. CS 142 of 2022)



                            Mamta Jaiswal

                                  Versus

                           APL Metals Ltd.




           Mr. Kanishk Kejriwal
           Mr. Pranav Sharma
                                             ... For the plaintiff.


           Mr. Satyaki Mukherjee
           Mr. Aditya Mondal
                                             ... For the defendant.



Hearing Concluded On : 27.01.2025

Judgment On           : 31.01.2025
                                        2


Krishna Rao, J.:

1. The plaintiff has filed the present suit praying for Decree for a sum of

Rs.18,50,257.58 along with interest and interest upon judgment at the

rate of 18% per annum.

2. The plaintiff is engaged in the business of retail and wholesale of lead

and lead ingots. The defendant is engaged in production and supply of

refined lead, lead alloys and lead oxides.

3. The defendant was in need for Lead for its manufacturing process,

therefore, the defendant, being aware that the plaintiff is a whole-seller

of Lead, approached the plaintiff. After negotiations between the parties,

it was agreed that the defendant would place purchase orders upon the

plaintiff for supply of lead at specific rates and the plaintiff would

supply Lead and raise invoices upon the defendant and thereafter the

defendant will make payment in terms of the invoices raised by the

plaintiff. It was also agreed between the parties that in the event of

delay in making payment, the defendant would make payment of

interest at the rate of 18% per annum.

4. On 25th November, 2021, the defendant placed a purchase order upon

the plaintiff, for supply of 20,000 MT of Lead which the plaintiff has

supplied the same on 28th November, 2021. On the same day, the

plaintiff has raised invoice for a sum of Rs. 42,24,400/- on 28th

November, 2021.

5. The defendant received the goods sold and delivered by the plaintiff

without raising any objection and/or demur in any manner whatsoever.

6. The defendant has made part payment of a sum of Rs. 25,00,000/- on

24th December, 2021 and thereafter the defendant failed to make

further balance payment to the plaintiff. The plaintiff through her

Learned Advocate sent a legal notice to the defendant no 1st March,

2022 calling upon the defendant for making further balance payment of

Rs.17,67,248/- along with interest total amounting to Rs.

18,21,282.21. The defendant has received the notice but neither the

defendant has sent any reply nor has paid the due amount to the

plaintiff.

7. The plaintiff submits that the defendant has also deducted and

deposited TDS (Tax Deducted at Source) in respect of the said invoice

raised by the plaintiff in acknowledgement of its dues.

8. The plaintiff has filed the suit by obtaining leave under Section 12A of

the Commercial Courts Act, 2015 by an order dated 14th June, 2022.

9. The writ of summons was served upon the defendant on 16th

September, 2022 but the defendant has not filed written statement. The

application filed by the defendant being G.A. No. 3 of 2023 for extension

of time to file written statement was dismissed and the suit was placed

in the list of "undefended suit".

10. The plaintiff in order to prove its case has examined one witness,

namely, Mr. Anand Kumar Gupta and exhibited 10 (Ten) Documents

and are marked as "Exhibit A to Exhibit J".

Exhibit A - Original Copy of the Power of Attorney, authorising the P.W.1 to give evidence on behalf of the plaintiff company.

Exhibit B - Copy of purchase order dated 25th November, 2021 sent by the defendant to the plaintiff through electronic mail.

Exhibit C - copy of the purchase order dated 25th November, 2021.

Exhibit D and D/1 - Original copy of the tax invoice and containing the seal and signature of the APL Metals Ltd.

Exhibit E - Copy of e-Way bill showing transportation of materials from the factory of the plaintiff to the defendant's address.

Exhibit F - Copies of bank statements of Kotak Mahindra Bank of the plaintiff.

Exhibit G - Copy of ledger account sent by the defendant to the plaintiff sharing the closing balance amount of Rs. 17,67,248/-.

Exhibit H - Copy of ledger confirmation for the year 2021-22 signed by both the parties.

Exhibit I - TDS Certificated under section 26AS.

Exhibit J - Goods and Services Tax Certificate for financial year 2021-22.

11. Though the defendant has not filed written statement but the defendant

has cross-examined the plaintiff's witness. The plaintiff has proved

purchase order dated 25th November, 2021 issued by the defendant to

the plaintiff for supply of 20,000 MT of lead which is marked as

Exhibits- B and C. The plaintiff has raised Tax Invoice dated 28th

November, 2021 against the supply of 20,220 Kg of Lead Ingot to the

defendant for a sum of Rs. 42,70,868/- and the same is marked as

Exhibit- D. To prove that the materials were supplied by the plnaitff to

the defendant, the plaintiff has Exhibited e-Way Bill dated 28th

November, 2021 wherein is reveals that the materials were transported

from the factory of the plaintiff to the address of the defendant through

the vehicle No. WB11C9219. The e-Way Bill is marked as Exhibit-E.

12. The plaintiff has exhibited bank statement of the plaintiff maintained

with the Kotak Mahindra Bank wherein is reveals that the defendant

has transferred an amount of Rs. 25,00,000/- in the account of the

plaintiff on 24th December, 2021. The Bank statement is marked as

Exhibit-F. The defendant by an email dated 14th February, 2022

forwarded ledger confirmation to the plaintiff confirming that as on 24th

December, 2021 closing balance was Rs. 17,67,248/-. The ledger

confirmation is marked as Exhibit-G. The defendant has also signed

confirmation of account dated 23rd February, 2022 confirming that

closing balance was Rs. 17,67,248/-. The confirmation of account is

marked as Exhibit-H. The plaintiff has also produced TDS certificate

showing that an amount of Rs. 7,977/- was deducted. The TDS

certificate is marked as Exhibit-I. The plaintiff has also produced Goods

and Service Tax Return-1 showing that the plaintiff has regularly paid

the tax with respect to the goods sold and delivered. The GSTR-1 is

marked as Exhibit- J collectively.

13. Learned Counsel for the defendant during his argument referred

question nos. 46, 47, 48 and 53 and submitted that during the cross-

examination of the plaintiff's witness, he has admitted that when the

materials were loaded and delivered, he was not present and he also

admitted that at the time of endorsement in the receipt of the invoice,

he was not present. He submits that the plaintiff failed to prove the

delivery of materials to the defendant. In support of his submission, he

has relied upon the judgment in the case of Anil Rice Mill Vs. Sate of

U.P. and Others reported in 2024 SCC OnLine All 4510 wherein the

Hon'be Allahabad High Court held that:

"15. Similarly, this Court in the case of the Commissioner, Commercial Tax v. Ramway Foods Ltd. has held that the primary responsibility of claiming the benefit is upon the dealer to prove and establish the actual physical movement of goods, genuineness of transactions, etc., and if the dealer fails to prove the actual physical movement of goods, the benefit cannot be granted."

14. All documents were exhibited in presence of the Learned Advocate

appearing on behalf of the defendant and at the time of exhibiting the

documents, the defendant has not raised any objection. The defendant

during cross-examination also has not put any question to the effect

that the documents relied or exhibited are forged or fabricated. In

question no. 69, during the cross-examination, the witness of the

plaintiff stated as follows:

"69. I suggest to you that the plaintiff has not come forward to give evidence herself as she is aware that the contents of her plaint are false and untrue?/ I do not agree. They have made part payment through the bank. It is confirmed on the ledger and moreover, there is E-Way bill which is generated from the government portal and that E- Way bill cannot be false and the transporter who carries the goods takes receipt in the tax invoice or in the challan otherwise he will not receive the payment. This is the rule and there is another thing the stamp of my factory is totally different and my office stamp is different. Sometimes, the office stamp and the factory stamp are the same where the factory and the office are located in the same building. They have made part payment. They have given receipts. It can also be depicted in the bank statement."

15. Considering the pleading, evidence of the plaintiff's witness and the

documents exhibited during the evidence, this Court finds that the

plaintiff has proved the case that the defendant has placed purchase

order to purchase 20,000 MT of Lead for a total sum of Rs. 42,24,400/-

and the plaintiff has delivered Lead Ingot of 20,220 Kg for a total sum of

Rs. 42,70,868/- and raised invoice. On receipt of materials, the

defendant paid part payment of Rs. 25,00,000/-. The defendant by

forwarding ledger account and confirmation of account admitted that as

on 24th December, 2021 closing balance was Rs. 17,67,248/- but the

defendant failed to pay the said amount.

16. This Court finds that the plaintiff has proved the case and is entitled to

get an amount of Rs. 17,24,400/- along with interest at the rate of 18%