Calcutta High Court
Cooperation Strategies S.R.L vs Apocalypse Steel And Power Ltd. And Ors on 16 September, 2025
OCD- 2
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
G.A. (COM) No. 1 of 2024
In
C.S. (COM) No. 684 of 2024
DUVARTHIM VISADAHYUM INTERNATIONAL
COOPERATION STRATEGIES S.R.L.
-VS-
APOCALYPSE STEEL AND POWER LTD. AND ORS.
BEFORE:
The Hon'ble Justice Krishna Rao
Hearing Concluded On : 25.08.2025
Order On : 16.09.2025
Appearance:
Mr. Krishna Raj Thaker, Sr. Adv.
Mr. Chayan Gupta, Adv.
Mr. Rittick Chowdhury, Adv.
Mr. Rajesh Upadhyay, Adv.
...for the plaintiff
Mr. Mainak Bose, Sr. Adv.
Mr. Shounak Mukhopadhyay, Adv.
Mr. Somdutta Bhattacharyya, Adv.
Ms. Debomita Sadhu, Adv.
Ms. Arti Bhattacharyya, Adv.
2
Ms. Pooja Chakraborty, Adv.
...for the defendant nos.6 & 7
ORDER
1. The plaintiff has filed an application being G.A (Com) No. 1 of 2024
praying for interim order. Initially, this Court by an order dated 10th
May, 2024, granted ad-interim order of injunction. Being aggrieved with
the said order, the defendant no.6 has preferred an appeal being APOT
No. 365 of 2024. The Appellate Court by an order dated 20th November,
2024, disposed of the said appeal by passing the following order:
"Prima facie, it seems that the plaintiff has not
disclosed any document to show in writing that the
defendant no.6 has assured to supply the required
materials to the plaintiff through the defendant
no.1. However, there is a pleading of such
assurance held out by the defendant nos.1 and 6
jointly and severally. In absence of any documents
covering the contract period, it needs to be
assessed whether the defendant no.6 could be
restrained to operate the bank account to the extent
of Rs.18 crores. Mere verbal assurance without
anything else may not be sufficient to pass a
drastic order in the nature of injunction and
attachment unless it is supported by nature of
dealings, transactions and conduct. By reason of
the order of injunction, the defendant no.6 is
unable to operate the bank account. The plaintiff is
unable to show exchange of correspondence
between the plaintiff and the defendant no.6 by
which the defendant no.6 can be held to be
responsible for non-supply by the defendant no.1.
If the defendant no.1 has received the money, it
does not automatically follow that the defendant
no.6 would be obliged to supply the materials to
the plaintiff through the defendant no.1. However,
it is alleged that joint inspection had taken place at
the warehouse of the defendant No.6 in
performance of the contract. Unless a strong prima
facie case is made out by which it can be said with
some amount of certainty at the interlocutory stage
that the defendant no.6 is also bound by a contract
as the defendant No.1 it may be unfair to restrict
the defendant no.6 from operating the bank
account.
Curiously, the defendant no.6 has not filed
any affidavit nor any application stating on oath
that such arrangement was not existing. The
learned Single Judge has proceeded on the basis of
the averments in the plaint and the injunction
application and continued with the interim order
passed on 10th May, 2024. We do not find any
reason to interfere with the order at this stage.
However, having regard to the nature of the ad
interim order, we would request the learned Single
Judge to decide as to whether the ad interim order
should be continued on the date fixed as against
the defendant No.6 upon consideration of the
pleadings to be filed by the parties in the
meantime.
The appellant shall file the affidavit-in-
opposition on or before 22nd November, 2024.
Reply thereto, if any, shall be filed on or about 27th
November, 2024.
The said direction as to pleadings is
peremptory. In the event affidavits are not filed, the
learned Single Judge shall proceed with the matter
and decide the interlocutory application as per the
convenience of the learned Single Judge without
allowing any further pleadings. The continuation of
the interim order shall be entirely at the discretion
of the learned single judge.
We however make it clear that in deciding the
interlocutory application on merits, the learned
Single Judge shall not be influenced by any
observation made in this order.
The appeal and the application and disposed
of."
2. The defendant nos. 6 and 7 have filed their affidavit-in-opposition to the
instant application and the plaintiff has also filed affidavit-in-reply as
well as supplementary affidavit-in-reply. Though there are altogether 14
defendants, some of the defendants have filed their affidavits, some of
the defendants have filed vacating application and the defendant no.1
has filed an application for referring the parties to arbitration. One or
the other reasons, the other defendants have not concluded their
arguments but the defendant nos. 6 and 7 have concluded their
arguments and have also filed their written notes of arguments. As per
the direction of the Appellate Court, this Court proceeded to dispose of
the prayer for interim application only with respect to the defendant
nos. 6 and 7.
3. The plaintiff is engaged in trade of Ferro Alloy products. To meet its
requirement of High Carbon and Medium Carbon Ferro Manganese and
Ferro Silicon Manganese, the plaintiff entered into 1st Contract with the
defendant no.1 on 28th February, 2020 for sale of 216 MTs High Carbon
Ferro Manganese of the specific grade. As per the case of the plaintiff,
altogether 8 (eight) contracts were entered between the plaintiff and the
defendant no.1 out of which there is no dispute with regard to Contract
nos. 1 and 2.
4. As per the case of the plaintiff with respect to the 3rd Contract, full
payments have been made but the defendants have made short supply.
With regard to the 4th and 5th Contracts, it is the case of the plaintiff
that the plaintiff made part payment but received short delivery. In
respect of 6th, 7th and 8th Contracts are concern, the plaintiff made part
payments but the defendants have failed to supply materials.
5. As regard to the case against the defendant no.6 is concern, it is the
case of the plaintiff that part payment has been made on behalf of the
plaintiff by the defendant no.1 to the defendant no.6 for supply of goods
to the defendant no.1 and discussion also took place between the
plaintiff and the defendant no.6 through a common acquaintance Mr.
Pratik Batra but after receipt of amount by the defendant no. 6 through
the defendant no. 1, the defendant no. 6 has not supplied entire goods
for which the defendant no. 6 received payment.
6. Mr. Krishna Raj Thaker, Learned Senior Advocate representing the
plaintiff submits that e-mails have been exchanged between Mr. Pratik
Batra and the defendant no.6 and the said e-mails have been marked to
Mr. Ali Mahabadi, the Director of the plaintiff. He submits that a virtual
meeting was held between the plaintiff and the Senior Manager of the
defendant no.6 along with the defendant no.10 who is connected with
the defendant no.6 as part of the group companies of Shyam Group.
7. Mr. Thaker submits that when the plaintiff's Director came to India had
met with the defendant no.7 in person along with Mr. Joydeb Majumder
who was the Head of Marketing of the defendants and the defendant
no.7 agreed that the defendant no.1 had placed an order for supply of
goods to the plaintiff and for which the defendant no.1 has paid
consideration.
8. Mr. Thaker submits that in the year 2020, the defendant no.6
represented the plaintiff that there was longstanding business
relationship between the defendant no.1 and defendant no. 6 and the
defendant no.1 is associated with the defendant no.6. He submits
under the 3rd Contract, the plaintiff has made aggregate payment of Rs.
585,000.00 Euro being the price of 1000 MTs but the plaintiff has
received delivery of only 757 MTs valued at 442,845.00 Euro.
9. Mr. Thaker submits that the defendant nos. 1 and 6 informed the
plaintiff that 270 MTs. of the contracted goods were ready for delivery at
the factory premises of the defendant no.6 and accordingly, the plaintiff
instructed SGS to carry out inspection of the goods and packing
materials and accordingly on 10th December, 2020 and 12th December,
2020, SGS conducted inspection of the materials.
10. Mr. Thaker relied upon the photographs taken in course of packing of
the plaintiff's bags at factory of the defendant no.6 and submits that the
photographs proved that the materials of the plaintiff was inspected in
the factory of the defendant no.6 and packed at the factory of the
defendant no.6.
11. Mr. Thaker referred the H.S. Code in the purchase orders and tax
invoices in respect of supplies made by the defendant no.6 to the
defendant no.1 directly and compared the same with the Contracts
between the plaintiff and the defendant no.1 and submits that the
materials which were meant for the plaintiff, supplied by the defendant
no.6 to the defendant no.1.
12. Mr. Thaker submits that the plaintiff paid the amount for supply of
materials to the defendant no.1 and the defendant no.1 has paid the
amount to the defendant no.6 for supply of the materials to the
defendant no.1 so that the defendant no.1 can supply materials to the
plaintiff.
13. Mr. Thaker submits that the purchase orders relied by the defendant
nos. 6 and 7 in their affidavit-in-opposition cannot be relied upon as
the said documents are fraudulent documents as the defendant nos.6
and 7 inspite of request made by the plaintiff not given inspection to the
original documents. Mr. Thaker relied upon the judgment in the case of
S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others
reported in (2004) 7 SCC 166 and submits that the defendants have
suppresses the original documents by not allowing the plaintiff to
inspect the original documents, thus the contention of the defendant
nos. 6 and 7 cannot be considered.
14. Mr. Thaker relied upon the judgment in the case of Tata Chemicals
Limited Vs. M/s. Kshitish Bardhan Chunilal Nath and Others
reported in 2022 SCC OnLine Cal 3343 and submits that Section 151
of the Code of Civil Procedure, 1908, empowers the Court to invoke its
inherent jurisdiction to prevent miscarriage of justice or to prevent
abuse of process of law. The purpose of Section 151 of the Code of Civil
Procedure, 1908, is to ensure that substantive justice is not defeated by
hyper technicalities.
15. Mr. Thaker relied upon the judgment in the case of Shanklin Pier Ld.
Vs. Detel Products Ld. reported in (1951) 2 KB 854 and submits that
it is the burden upon the defendant no.6 to supply materials on behalf
of the defendant no.1 as the plaintiff paid the amount to the defendant
no.1 and defendant no. 1 paid the amount to the defendant no.6 inspite
of receipt of amount from the defendant no.1, the defendant no.6 has
not supplied materials to the defendant no.1.
16. Mr. Thaker relied upon the judgment in the case of Wells (Merstham)
Ltd. Vs. Buckland Sand and Silica Ltd. reported in (1965) QB 170
and submits that thought the plaintiff has ordered for supply of
materials to the defendant no.1 but the defendant no.1 assured that the
defendant no. 6 supply the materials and the defendant no.6 also
assured for supply of materials and the defendant no.1 paid the
amount to the defendant no. 6 from the amount received by the
plaintiff, thus the defendant no.6 is also liable for supply of materials.
17. Mr. Mainak Bose, Learned Senior Advocate representing the defendant
nos. 6 and 7 submits that there is no commercial contractual
relationship between the plaintiff and the defendant no.6. He submits
that there is no obligation of any nature of the defendant no.6 to supply
any material to the plaintiff based on the contracts of the defendant
no.1. He submits that mere inspection of goods by the SGS cannot be
said to any privity of contract with the plaintiff. He submits that the
defendant no.1's purchase orders placed to the defendant no.6 for
inspection by the SGS but no order of the plaintiff was placed to the
defendant no.6.
18. Mr. Bose submits that bare perusal of photographs, it cannot be
established that they were taken at the factory of the defendant no.6.
He submits that the defendant no.6 being a manufacturer, supplies
goods to multiple customers and buyers and the materials packed in
boxes bearing the logo of the plaintiff does not establish existence of
commercial contract.
19. Mr. Bose submits that the written contracts made by the plaintiff to the
defendant no.1 only and no reference is made to the defendant no.6. He
submits that HS Code (Harmonious System Codes) used by the
Government of India to classify the trading products internationally. It
is a standardized system developed by World Customs Organization
(WCO) to facilitate global trading. He submits that since some of the
materials supplied by the defendant no.6 to the defendant no.1,
pursuant to independent and separate contracts entered between them,
were the same category of materials that the defendant no.1 had to
supply to the plaintiff under contracts which is a subject matter of trial,
but the HS Code would be identical.
20. Mr. Bose submits that the entirety of the case of the plaintiff against
the defendant nos.6 and 7 are confined to claim of damages. He
submits that in a simpliciter case of claim of damages no order of
injunction for attachment can be passed. In support of his
submissions, he has relied upon the judgment in the case of Union of
India Vs. Raman Iron Foundry reported in (1974) 2 SCC 231 and
submits that it is settled law that a claim for unliquidated damages
does not give rise to a debt until the liability is adjudicates and
damages assessed by a decree or of a Court or other adjudicating
authority.
21. Mr. Bose submits that the plaintiff has made out a new case alleging
that the transaction between the defendant no.1 and the defendant
no.6 is fraudulent and in inflated price by referring to alleged "index
price" of high carbon ferro manganese but such contention of the
plaintiff is misconceived as there is no statuary and regulatory fixed
price fixed on carbon ferro manganese.
22. Mr. Bose submits that the plaintiff has not make out any prima facie
case and balance of convenience or inconvenience against the
defendant nos. 6 and 7 to obtain interim order and thus he prays for
the vacating interim order against the defendant nos. 6 and 7.
23. As per the case made out by the plaintiff against the defendant nos.6
and 7 that there is a privity of contract between the plaintiff, the
defendant no.1 and the defendant no. 6 with regard to supply of High
Carbon Ferro Manganese under several contracts out of which there is
no dispute with regard to the Contract nos. 1 and 2 but with regard to
the Contract nos. 3 to 6, the defendant no.1 has received the entire
amount and the defendant no.1 has paid to the defendant no.6 but the
entire goods were not supplied either by the defendant no.1 or the
defendant no.6.
24. With respect to the 3rd Contract on 22nd August, 2020, the plaintiff and
the defendant no.1 entered into a contract for supply of 3000 MTs of
Ferro Silicon Manganese to the plaintiff at a price of 585.00 Euro per
MT. As per request of the defendant no.1, the plaintiff issued
instructions to its bank for the payment of entire consideration to the
defendant no.1 and accordingly the same was paid to the defendant
no.1.
25. On 13th July, 2020, the plaintiff and the defendant no.1 entered into 4th
Contract for supply of Medium Carbon Ferro Manganese of the specific
grade at the rate of 999.00 Euro per MT. on 14th October, 2020, the
plaintiff has made an advance payment of 50,000.00 Euro under the 4th
Contract to the defendant no.1. Again the plaintiff has paid 49,000.00
Euro to the defendant no.1 on 14th December, 2020 under the same
contract.
26. On 14th December, 2020, the plaintiff and defendant no.1 entered into
the 5th Contract for purchase of 2700 MTs of High Carbon Ferro
Manganese at the rate of 615.00 Euro per MT. The plaintiff and the
defendant no.1 executed 6th, 7th and 8th Contracts all dated 15th
February, 2021 for supply of 4461 MTs Medium Carbon Ferro
Manganese at the rate of 990.00 Euro per MT, 7300 MTs High Carbon
Ferro Manganese at the rate of Euro 615.00 Per MT, and 1750 MTs
Ferro Silicon Manganese at the rate of 585 Euro per MT.
27. The contention of the plaintiff that the contracts for supply between the
defendant no.1 and the defendant no.6 were collateral to the contracts
between the defendant no.1 and the plaintiffs. All contracts were
entered between the plaintiff and defendant no.1. In none of the
contracts, the defendant no.6 is the party or the said contracts were
forwarded to the defendant no.6. All payments were also made by the
plaintiff to the defendant no.1. The plaintiff has not disclosed any
documents to say that the plaintiff has made any payment to the
defendant no. 6 for supply of any of the contracts goods entered
between the plaintiff and defendant no.1.
28. In the case of Wells (Merstham) Ltd. (supra), the Queen's Bench
Judgment, the Hon'ble Court held that:
"In these three cases, accordingly, the
contracts of sale were, for the reasons stated, not
between the defendants and the plaintiffs, but
between Hall & Co. and the plaintiffs.
Those are the facts which give rise to the
present proceedings. As the legal consequences
which follow in relation to the direct sale between
the parties of the original 3 cubic yards may be
different from those flowing from the later sales
between Hall & & Co., and the plaintiffs, Counsel
have commendably agreed that, of the £2,500 total
loss suffered by the plaintiffs, £550 should be
apportioned as that attributable to the condition of
the first load, subject, of course, to the issue of
liability. That the plaintiffs were induced to buy
and use B.W. sand by reason of Clark's statements
and his production of the analysis is clear. But
there is no suggestion that Clark was other than
honest. He was wrong in assuring Russell that the
constituents of B.W. sand were as the analysis
indicated and in promising that such sand always
measured up to that analysis. At most, he should
have said the B.W. sand should conform to the
analysis. But his mis-statements were innocently
made. That being so, if they are to be regarded
merely as statements inducing contracts to buy the
defendants sand, they clearly cannot provide the
basis of an action for damages, for it is a
fundamental rule that none may be awarded for
innocent misrepresentation. But the plaintiffs
submit that the statements made by Clark went far
beyond this. By these proceedings the plaintiffs
seek to recover the whole £2,500 as damages for
breach of an express warranty by Clark that the
defendants' B.W. sand contained only the
ingredients (and in the proportions thereof) set out
in the analysis, a warranty which they say they
acted upon by shortly thereafter placing four orders
and, in consequence, suffered the damage claimed.
They rely, in other words, upon what has, in many
of the reported cases, been called a collateral
contract, and they base themselves on the well-
known words of Lord Moulton in Heilbut, Symons &
Co. v. Buckleton that, "It is evident, both on
principle and on "authority, that there may be a
contract the consideration for "which is the making
of some other contract, "If you will make "such and
such a contract I will give you £100,' is in every
sense of the word a complete legal contract. It is
collateral to "the main contract, but each has an
independent existence, and "they do not differ in
respect of their possessing to the full the character
and status of a contract." The law reports contain
several illustrations of the application of these
observations, notwithstanding Lord Moulton's
warning that ". . . such collateral "contracts must
from their very nature be rare . . . They must "be
proved strictly. Not only the terms of such contracts
but "the existence of an animus contrahendi on the
part of all the "parties must be clearly shown." The
topic is illuminatingly discussed in an article,
"Collateral Contracts." by K. W. Wedderburn in the
Cambridge Law Journal, 1959, pp. 58, 77.
Fundamental to the conception of a collateral
contract is "an "intention on the part of either or
both parties that there should "be a contractual
liability in respect of the statement." But in this
connection it is well to bear in mind the cautionary
words of Denning L.J. in Oscar Chess. Ltd. v.
Williams that. "It is "sometimes supposed that the
tribunal must look into the minds "of the parties to
see what they themselves intended. That is "a
mistake... The question whether a warranty was
intended "depends on the conduct of the parties, on
their words and "behaviour, rather than on their
thoughts. If an intelligent "bystander would
reasonably infer that a warranty was intended
"that will suffice. And this, when the facts are not
in dispute "is a question of law." Approaching in
this way the facts as I have found them, in my
judgment a warranty was here intended and
expressed that the constituents of B.W. sand were
(and would be found to be) as set out in the
analysis supplied, and on the basis of that
warranty the plaintiffs entered into contracts to buy
such sand.
Much has been sought to be made by the
defendants of the point that, when the various
loads were collected from their pits. they had no
reason to think that the sand was required for
horticultural purposes and did not even know that
it was destined for the plaintiffs' use. Assuming
this to be so, it is irrelevant, as the evidence of
Clark himself has demonstrated, that whoever
came for B.W. sand would have been supplied with
the same type of material.
Then does it make any difference that, the
warranty having been given to the plaintiffs, all the
purchases other than the first were made by the
plaintiffs from a third party? If that question
demands in law an affirmative answer, the result
would not be justice, for, as I have said, it was
purely fortuitous that all the loads were not sold by
the defendants direct to the plaintiffs. But in my
judgment such an affirmative answer is not
required, as several; reported decisions indicate."
29. In the present case all the contracts were entered between the plaintiff
and defendant no.1 there is no document to show that the contracts
entered between the plaintiff and defendant no.1 is binding upon the
defendant no.6. The payments were also not made by the plaintiff to the
defendant no. 6. Thus the judgments relied by the plaintiff are
distinguishable from the facts and circumstances of the present case.
30. The plaintiff has relied upon the photographs taken in course of the
packaging of the plaintiff's bags at the factory of the defendant no.6. It
is not denied that the defendant no.6 is a manufacturer and supplies to
several customers and buyers. Mere appearing of the logo of the
plaintiff's company in the said bags cannot prove that the defendant
no.6 is having any contract as claimed by the plaintiff.
31. The plaintiff also tried to correlate the Contracts between the plaintiff
and the defendant no.6 by referring HS Code in the purchase order and
tax invoices with respect to the materials supplied by the defendant
no.6 to defendant no.1. In the affidavit-in-opposition filed on behalf of
the defendant nos. 1, 2, 3 and 5 in paragraph 16, has categorically
made an averment that the defendant no.1 paid Rs. 10,00,000/-
towards reimbursement of the material purchased from the defendant
no.6 and the said materials were already supplied to the plaintiff. It is
also specifically stated by the defendant nos.1, 2, 3 and 5 that they
have no knowledge about the negotiation held by the plaintiff along with
the defendant no. 6. In the affidavit, the defendant no.1 specifically
denied that the defendant no.1 had paid an amount of Rs. 70,00,000/-
to the defendant no. 6 on 30th July, 2020 as advance for purchasing the
goods from the defendant no.6.
32. Taking into consideration of the above facts and circumstances, this
Court finds that the plaintiff has not disclosed any documents to
establish that the defendant no.6 assured the plaintiff to supply goods
through the defendant no.1. The plaintiff has also not disclosed any
document or any amount is pending with the defendant no.6 and the
defendant no.6 has not supplied goods to the plaintiff. In contrary, the
defendant nos. 1, 2, 3 and 5 in their affidavit categorically stated that
the amount which the defendant no.1 has paid to the defendant no.6,
the defendant no.6 has supplied goods to the defendant no.1 and
defendant no.1 has supplied to the plaintiff. The defendant no.1 has
also denied that the defendant no.1 has paid advance amount of Rs.
70,00,000/- to the defendant no.6 for purchasing goods.
33. This Court after going through the documents relied by the parties finds
that the plaintiff has not made out any prima facie case and balance of
convenience and in convenience in favour of the plaintiff. Other words
this Court finds that if the ad-interim order dated 10th May, 2024, is
made absolute against the defendant nos. 6 and 7, the defendant nos. 6
and 7 will suffer irreparable loss and injury.
34. In view of the above, ad-interim order dated 10th May, 2024, is hereby
vacated against the defendant nos. 6 and 7.
(Krishna Rao, J.)
p.d/-
