Hindustan Petroleum Corporation ... vs Tajikstan International ...
2005 Latest Caselaw 1253 Del

JUDGMENT

Anil Kumar, J.

1. This judgment will dispose of plaintiff's suit for recovery of Rs. 90,80,000/- filed against Tajikstan International Airlines a company incorporated at Dushanbe, Republic of Tajikstan on account of balance price of aviation turbine fuel supplied for refueling of aircrafts of defendant.

2. The plaintiff contended that it is a Government of India undertaking incorporated under the Companies Act and the suit is filed by Sh. Deepak Bali, Manager-Central Accounts and a principal officer who is also a General Attorney of the plaintiff and the plaint was signed, verified and instituted by him.

3. The defendant is a company incorporated in Republic of Tajikstan commencing its flights to and from India from second week of February, 1995 and availed the refueling services of their jets from the plaintiff company. The terms of offer for supply of aviation turbine fuel (ATF) were incorporated in the letter dated 1.2.1995 which terms were accepted by the defendant by their letter dated 2nd February, 1995 and a flight schedule was also sent with the said letter. Pursuant to agreement between the plaintiff and defendant, plaintiff started supplying and refueling the defendant's aircrafts at New Delhi. Though the aircraft turbine fuel was supplied according to the terms agreed, the payment was delayed by the defendant. On account of new currency introduced in Republic of Tajikstan on 12th May, 1995, the defendant contended that it was unable to transfer money and sought time and hoped that the problem about payment to the plaintiff shall be resolved by 6th July, 1995.

4. The plaintiff gave the details of the supplies of aviation fuel made to the defendant and the bills raised in paragraph 10 of the plaint. Aviation fuel supplied till November, 1995 was for a total sum of Rs. 1,35,45,340/- and the plaintiff was paid only a sum of Rs. 90,20,838/- leaving a balance of Rs. 45,24,502/-. The plaintiff also refueled cargo flights of defendant ex-Delhi and ex-Ahmedabad and supplied aviation fuel for Rs. 7,27,418/- ex-Delhi and cargo flights ex-Ahmedabad for Rs. 12,59,865/-. Towards the price of fuelling of cargo flights ex-Delhi for Rs. 7,27,418/- defendant paid a sum of Rs. 5,20,000/- leaving a balance of Rs. 2,07,418/- and towards the refueling charges of flights ex-Ahmedabad for a total sum of Rs. 12,59,865/- defendant paid a sum of Rs. 9,00,000/- leaving a balance of Rs. 3,59,865/-. The plaintiff thus have claimed a sum of Rs. 50,91,785/- from the defendant on account of price of aviation turbine fuel.

5. After November, 1995 though the balance price of aviation turbine fuel was due from the defendant, on their assurance that the arrears of aviation fuel charges shall be paid, the last scheduled flight in Delhi in the month of December, 1995 was refueled and further bills were raised. Even for the supplies made in December a sum of Rs. 6235/- remained due, the details of which were given in paragraph 13 of the plaint and thus a total sum of Rs. 50,98,020/- has been claimed by the plaintiff from the defndant on account of price of aviation turbine fuel.

6. It was also averred by the plaintiff that the defendant sent a letter dated 12.12.1995 assuring that a bank guarantee for an amount of Rs. 50 lakhs shall be furnished and also agreed to give two cheques for the amount of Rs. 2,20,000/- and 3,59,865/- towards outstanding of supplies of aviation turbine fuel of cargo chartered flights operating out of Ahmedabad and Delhi. Consequent, thereto, a cheque No. 100014 dated 15.11.1995 was given only for US$ 1,00,000 which cheque was also dishonoured.

7. The plaintiff also contended that it suffered a loss of Rs. 99,000/- towards exchange fluctuation and claimed 2% of the service charges as agreed amounting to Rs. 68,940/-. For the amounts which were due to the plaintiff from the defendant in December, 1995 three cheques were issued, the details of which were given by the plaintiff in paragraph 16, however, the said cheques also got dishonoured and again an assurance was given on behalf of the defendant to furnish a bank guarantee for a sum of Rs. 35 laks but it was not honored by the defendant.

8. Plaintiff thus, claimed that a sum of Rs. 52,65,960/- has remained due from the defendant. Plaintiff claimed another sum of Rs. 38,14,040/- on account of interest at 24% per annum and thus a total amount of Rs. 90,80,000/- has been claimed from the defendant which the defendant has failed to pay despite repeated requests and demands. The suit of the plaintiff was filed on 22.10.1998 and the plaintiff contended that since cheques were paid for various amounts which got dishonoured which is an acknowledgment of liability and therefore, the suit of the plaintiff is within time.

9. The summons of the suit were served by publication in the Overseas Edition of 'Statesman' and since no one appeared on behalf of the defendant, he was accordingly proceeded ex-parte by order dated 5.3.2003. Thereafter, plaintiff filed evidence on affidavit of Sh. Deepak Bali, its manager Central Accounts.

10. The witness on behalf of plaintiff proved the certificate of incorporation of the plaintiff company as exhibit P1 and the power of attorney in his favor as exhibit P2. The confirmatory letter dated 15.12.1994 from plaintiff to defendant regarding the terms of supplying the aviation turbine fuel was proved as exhibit P3. The deponent categorically stated that after raising the monthly bills the payment was to be settled immediately and plaintiff would have accepted the payment either in US$ or Indian rupees and conversion of billing value from US dollars to Indian rupees was to be based on the market T.T selling rate ruling on the date of supply. This was communicated to the defendant and letter dated 1.2.1995 was proved by the plaintiff as exhibit P4The letter dated 25.3.1995 was proved as exhibit P6 and letters dated 22.6.1995, 20.6.1995, 8.9.1995, 12.12.1995 and 29.12.1995 as exhibits P7 to P11 respectively. The invoices for the aviation turbine fuel supplied to the defendant were proved as exhibit P12 to P52 and the covering letter sent with the invoices were proved as exhibit P53 to P87. The letter dated 3.11.1995 from Bharat Petroleum Corporation Ltd was proved as exhibit P88 and another letter dated 17.11.1995 as exhibit P99.

11. The plaintiff proved the cheque for Rs. 6,50,629/- dated 17.12.1995 and cheque for Rs. 3,59,865/- as exhibit P92 and P93 and the memo regarding their dishonour as exhibit P94 and exhibit P95. The copy of cheque for Rs. 68,940/-, original of which was filed in the criminal proceeding was also proved by the plaintiff as exhibit P96. The plaintiff also proved carbon copies of receipts issued to the defendant in respect of various payments made from time to time as exhibit P98 to P108. The plaintiff also proved the statement of accounts of aviation turbine fuel supplied to the defendant as exhibit P109 and the witness deposed that the plaintiff is entitled for a decree of Rs. 90,80,000/- with future interest at 24% per annum.

12. I have perused the plaint and the statement of Sh. Deepak Bali, Manager. The pleas averred and the facts proved by the plaintiff have remained unrebutted. The plaintiff has been able to establish that it is a corporation duly incorporated under the companies Act and Sh. Deepak Bali, manager Central accounts is duly authorized to sign, verify and institute the suit on behalf of the plaintiff company. The plaintiff has also proved the terms of supply of aviation turbine fuel for refueling the planes of the defendant. It was categorically agreed that plaintiff will accept payment in US dollars or Indian rupees and conversion of billing value from US dollars to Indian rupees would be based on the market T.T selling rate ruling on the date of supply. The plaintiff has been able to establish the correspondence and the complaints raised by the plaintiff and the evidence produced have not been rebutted. The plaintiff has proved the invoices which are as exhibits P12 to P52 and the covering letter sent along with the invoices as exhibit P53 to P87. The defendant had given cheques for Rs. 6,50,629/-, 3,59,865/- and Rs. 68,940/- which were dishonoured. The plaintiff has proved the dishonoured cheques and various memos issued by the banks to the defendant regarding dishonour of the cheques.

13.It is no more res integra that the limitation for filing the suit shall be extended under Section 19 of the Limitation Act in case a cheque for payment is dishonoured. In , Rajesh Kumari v. Prem Chand Jain it was held that a payment of cheque satisfies the requirement of Section 19 inasmuch as the acknowledgment of payment appears in the handwriting of or in a writing signed by the person making the payment in the form of a cheque.

14. The last cheque which was given by the defendant was on 30.12.1995 for Rs. 6,50,629/-. Two other cheques dated 17.12.1995 and 28.12.1995 were also given which were dishonoured. The suit of the plaintiff was filed on 22.10.1998 and therefore, the suit for recovery is within time.

15. The plaintiff has been able to establish that he supplied to the defendant aviation turbine fuel for a total amount of Rs. 1,55,32,623/- against which a sum of Rs. 1,04,40,838/- was paid leaving a balance of Rs. 50,91,785/-. The balance payment for the supply of aviation turbine fuel to the defendant's flights also remained due for the flights ex-Delhi and ex-Ahmedabad. The plaintiff has also been able to establish the loss incurred on account of exchange fluctuation in dishonouring of the cheque of US$,00,000/- and Rs. 68,940/- on account of service charges at the rate of 2% per annum. The witness of the plaintiff categorically deposed that the plaintiff is entitled for interest of 24% per annum on the amounts due from the defendant to the plaintiff which the defendant has not paid despite various letters. The plaintiff has been able to make out a case for recovery of Rs. 38,14,040/- on account of interest and thus plaintiff has been able to prove that he is entitled for recovery of Rs. 90,80,000/- from he defendant with pendente lite and future interest.

16. For the foregoing reasons, I decree the suit of the plaintiff for the recovery of Rs. 90,80,000/- against defendant. Plaintiff is also awarded pendent lite and future simple interest from the date of institution of the suit till recovery of the decreetal amount at the rate of 9% per annum. Cost of the suit is also awarded to the plaintiff against the defendant. Decree sheet be drawn accordingly.