7. The plaintiff believing upon such representations
and believing the same to be true and correct
dealt with the defendant No.2 in the course of
selling and delivering the said goods as stated
hereinafter. It is important to note here that such
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
12. Thus, in the usual course of business on and from
February-March, 2021, the defendants have
offered to buy the said goods from the plaintiff
and the plaintiff accepted such offer to sell the
said goods lying at the plaintiff's place of
business at 12, Adi Banstolla Lane, 1st Floor,
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
Police Station - Posta, Kolkata 700007. The said
offer was received by the plaintiff at its registered
office within the jurisdiction as mentioned above.
13. Pursuant to and in terms of the representations,
and assurances, made by the defendants, the
plaintiff had duly supplied the said goods to the
defendant from its office.
14. After accepting the delivery of the said goods, the
defendants jointly and severally, utilized the
same for the purposes for which the said goods
were procured from the plaintiff.
15. The plaintiff duly in pursuance of the delivery of
the said goods in favour of the defendants, raised
Eleven (11 Nos.) Delivery Challans in favour of
the defendants in lieu of the price of the said
goods sold, delivered and appropriated by the
defendants. The said Delivery Challans were all
duly issued from the registered office of the
plaintiff and thus the defendants are under a
contractual obligation to make payment of the
amounts as indicated in the Delivery Challans as
per the agreed terms. Copy of the said Eleven (11
Nos.) Delivery Challans are annexed hereto and
collectively marked with the Letter -"A".
16. That at present, a sum of Rs.6,51,28,139.99p
(Rupees Six Crore Fifty one lacs Twenty Eight
thousand one hundred thirty nine and paise
ninety nine) only, is due and payable by the
defendants, according to the usual books of
account maintained by the plaintiff. Copies of the
Ledger for the period April 01, 2020 to February
26, 2024 (3 Pages) are annexed hereto and
collectively marked with the Letter-"B".
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
17. That even though the plaintiff had supplied the
said goods to the defendants, the defendants
have failed to make payments against the said
Delivery Challans as raised by the plaintiff as
was agreed for which the plaintiff continuously
followed up with the defendants. Unfortunately,
the defendants failed to make payments as per
the commercial agreement entered into by and
between the parties herein thereby causing
breaches of the said agreement.
***
21. That the plaintiff is, therefore, entitled to receive
from the defendants and the defendants are
bound, liable and obliged to remit/pay to the
plaintiff, a sum of Rs.6,51,28,139.99p. (Rupees
Six Crore Fifty one lacs Twenty Eight thousand
one hundred thirty nine and paise ninety nine)
only, together with all further interests that will
accrue thereon. The defendants' negligence and
failure to make such payment has inflicted severe
financial loans upon the plaintiff.
***
27. The defendants despite duly and unequivocally
acknowledging and admitting the claim of the
plaintiff, has intentionally failed and/or neglected
to make payment of the amount. Money is due
and outstanding from the defendants to the
plaintiff on account of goods sold and delivered
by the plaintiff to the defendants.
28. After the aforesaid facts and circumstances, a
sum of Rs.6,51,28,139.99p. (Rupees Six Crore
Fifty one lacs Twenty Eight thousand one
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
hundred thirty nine and paise ninety nine) only is
due and outstanding, from the defendants to the
plaintiff on account of goods sold and delivered
by the plaintiff to the defendants."
5. The reliefs from the plaint are also quoted below:-
"a) A decree for Rs.6,51,28,139.99p. (Rupees Six Crore
Fifty one lacs Twenty Eight thousand one hundred
thirty nine and paise ninety nine) only, as pleaded
in paragraph 29 hereof against the defendants;
b) Interest, interest pendent lite and interest upon
judgment at the rate of 24% per annum until
realization;
c) Injunction;
d) Attachment/Attachment before judgment;
e) Judgment upon admission;
f) Costs;
g) Such further and/or other reliefs."
SUBMISSIONS:
6. Referring to the provisions laid down under sub-Rule 3 to
Order XIII-A of CPC as amended, Mr. Pourush
Bandopadhyay, learned Advocate appearing for the
defendants submits that the plaintiff has no real prospect of
succeeding on the claim, hence the application has been
filed.
7. Learned Advocate for the defendants further submits that the
goods were never supplied by the plaintiff to the defendants.
Inasmuch as, eleven numbers of tax invoices raised by the
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
plaintiff, at pages 23 to 33 of the plaint, would clearly show
that the articles which were sought to be sold by the plaintiff
are leviable with GST and allied taxes.
8. Referring to Section 24 of the Sale of Goods Act, 1930,
learned Advocate for the defendants submits that there has
been no approval or acceptance given by the defendants/
buyers to the plaintiff/seller neither the defendants/buyers
have admitted the transaction towards the plaintiff/seller.
Thus, goods alleged to have been sold by the plaintiff to the
defendants have not taken place, prima facie, though alleged
in the plaint otherwise.
9. Mr. Pourush Bandopadhyay, learned Advocate appearing for
the defendants then refers to the provisions laid down under
Section 142 (12) and the third proviso thereunder from the
Central Goods and Services Tax Act, 2017 (CGST Act) and
submits that several time-bound procedures were required to
be carried out by the seller/plaintiff when the articles alleged
to have been on transit to supply the same to the
buyers/defendants. Neither the plaint discloses nor it is the
case of the plaintiff that all such statutory requirements have
been fulfilled and only thereupon the articles have been sold
to the defendants. He submits that this gives presumption in
law that the goods were never supplied by the seller/plaintiff
to the buyers/defendants.
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
10. Mr. Bandopadhyay then refers to Rule 120 of the relevant
Rules under the 2017 Act and submits had the
seller/plaintiff sent articles on approval under the existing law
within the meaning of Section 142(12) of 2017 Act read with
Rule 117 which is time-bound compliance or even if it is
extended, the necessary details should have been furnished
by the plaintiff. The plaint does not disclose such details
neither the plaintiff has made out any such case in the plaint.
In absence of such statutory requirement being fulfilled, the
presumption should be that the plaintiff has not sold the
articles, as claimed in the plaint, to the defendants.
11. Mr. Bandopahdyay then refers to page 118 from his
application and submits that through an email dated July 27,
2021, the plaintiff has issued a balance confirmation of
accounts for the period April 1, 2020 to March 31, 2021 for a
sum of Rs.1,27,434/- and the last invoice was dated March
20, 2021. Therefore, this balance confirmation shows that
there is nothing due and payable by the defendants to the
plaintiff, even if the articles have been sold.
12. He further submits that none of these tax invoices at pages
23 to 33 of the plaint have been countersigned by or on
behalf of the defendants.
13. In addition to the above, referring to the affidavit in opposition
filed by the plaintiff, Mr. Bandopadhyay submits that there is
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
no specific denial by the plaintiff to the case made out in this
application.
14. In the light of the above submissions, Mr. Bandopadhyay
submits that cumulative assessment of all these facts would
clearly establish, without any dispute or defence on the part
of the plaintiff, that the plaintiff has no real prospect of
succeeding on the claim in the plaint.
15. Mr. Indranil Nandi, learned Advocate appears for the plaintiff.
He has denied and disputed the submissions made on behalf
of the defendants. He submits that there is evidence galore to
show that the articles, as mentioned in the plaint, have been
sold and supplied by the plaintiff to the defendants and the
defendants have consumed the same without paying the price
of it. Hence, this suit.
16. Inasmuch as, Mr. Indranil Nandi, learned Advocate further
submits that all the facts stated by the defendants, which
according to the defendants, would give rise to statutory
presumption for not supplying of articles by the plaintiff are
required to be specifically proved at the end of the defendants
and they are all triable in nature. Therefore, this application
for summary judgment is not maintainable.
17. He has referred to the written statement filed by the
defendants and submitted that the defendants have disclosed
documents galore which would show that none of these
documents would bear any signature on behalf of the
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
defendants showing receiving the articles supplied by the
plaintiff. However, on an overall assessment of the case and
counter case made out by the plaintiff and defendants in their
respective pleadings filed, in course of the trial, would show
that the plaintiff has supplied the articles to the defendants
and the defendants have consumed it. Some time the
defendants have accepted the articles on credit and credit was
granted by the plaintiff. These are all questions to be gone into
during the trial.
DECISION:
18. After considering rival contentions of the parties and on
perusal of the materials on record, it appears that the
defendants have already filed their written statement.
However, under Order XIII-A of CPC, as amended, it is not a
bar to pray for a summary judgment, even if the defendant
has filed its written statement.
19. To adjudicate upon the instant application filed under Order
XIII-A of CPC, as amended, on the ground that the plaintiff
has no real prospect of succeeding on the claim, primarily,
the plaint filed by the plaintiff has to be read, taking the
statements made therein to be true, correct and sacrosanct.
What can be the defence or probable defence of the
defendants cannot and should not be of relevant
consideration. The statements made in the plaint, as quoted
above, would show that plaint case is plaintiff has sold and
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
supplied articles to the defendants mentioned in the plaint
and the defendants have received and accepted the materials,
without any contemporaneous complaint or demur but failed
and neglected to pay the price of it.
20. The defendants, since have also filed written statement, the
general rule of law is that, at this stage, if the defendants are
sent for trial, the trial will depend upon the witness action of
the respective parties on the triable issues.
21. In the event, Court finds that there is no triable issue, there
will be no impediment on the Court to pass a summary
judgment.
22. The submissions made on behalf of the defendants that the
statutory time-bound compliance has not been made by the
plaintiff or that the plaintiff has failed to comply with the
provisions under the GST Act or the relevant Rules framed
thereunder, are required to be examined on the basis of the
existing facts in the light of the statements made in the plaint.
Once factual enquiry is required to be made on the basis of
the case and counter case made by the parties to a suit, it
inevitably gives rise to triable issues for which a properly
constituted trial is required.
23. The statements made in the instant application filed by the
defendants have to be examined in the light of the statements
made in the plaint primarily. On such examination of the
averments made in the instant application and the plaint filed
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
by the plaintiff, this Court is of the firm and considered view
that without causing an effective fact finding enquiry through
a trial, the suit filed in its present form cannot be adjudicated,
even to ascertain whether the plaintiff has no real prospect of
succeeding on the claim made in the plaint.
24. The procedure for summary judgment has been introduced for
a speedy trial so that if the grounds for summary judgment
mentioned under Rule 3 to Order XIII-A are satisfied, the
defendants shall not wait for the trial which is otherwise may
be a time consuming process.
25. When a plaint is instituted, the plaintiff has a vested right to
have his claim adjudicated in the established procedure of law
by granting the plaintiff fullest opportunity, in accordance
with law. Once the plaint case, as pleaded in the plaint, is
found to be triable, the trial is inevitable, unless the Court is
satisfied that the plaint case is such which is otherwise
barred by law. Therefore, right to go for trial in an appropriate
case is a vested right of the plaintiff which cannot be taken
away under the procedure of summary judgment without
holding the trial of the suit. If the grounds taken by the
defendant, as in the instant case, claiming a summary
judgment against the plaintiff does not satisfy the tests laid
down under Rule 3 to Order XIII-A of CPC, as amended, it
shall not be a fit case for summary judgment and the
application for summary judgment should be dismissed.
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
26. In the light of the above finding, this Court is of the
considered view that the tests laid down under Rule 3 to
Order XIII-A have not been satisfied and therefore, there shall
not be any summary judgment.
27. In view of the foregoing reasons and discussions, the instant
application fails.
28. Accordingly, IA No. GA-COM/5/2025 stands dismissed,
without any order as to costs.
(ANIRUDDHA ROY, J.)
Sbghosh
IA No. GA-COM/5/2025
In CS-COM/669/2024
A.R., J.
