Tribal Co-Operative Marketing ... vs M/S Kishan Industries
2012 Latest Caselaw 6573 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) 435/2000
%                                                         16th November, 2012

TRIBAL CO-OPERATIVE MARKETING DEVELOMENT
FEDERATION OF INDIA LTD.                         ......Plaintiff
                  Through: Mr. Alakh Kumar, Advocate.


                            VERSUS

M/S KISHAN INDUSTRIES                                           ...... Defendant
                  Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

This is a suit filed by the plaintiff/Tribal Cooperative Marketing

Development Federation of India Ltd. for recovery of `92,08,489.80 on account of

breach of contract committed by the defendant in failing to lift the Mahua seeds,

and because of which, the plaintiff had to process the seeds into oil at a loss. The

amount claimed is the difference between the amount at which oil was sold for a

loss sustained by the plaintiff and the amount which was contracted to be paid by

the defendant to the plaintiff for the Mahua Seeds.

2. Before proceeding further I must note that the defendant has been

proceeded ex parte in this case. The defendant did not cross-examine the witnesses

of the plaintiff. The defendant also did not lead his evidence. In fact, the case

record shows innumerable number of frivolous applications which were repeatedly

filed by the defendant and which were dismissed. The defendant was also habitual

of filing of complaints for no reason to Hon'ble the Chief Justice and other

authorities. The defendant has been trading in various other names besides the

defendant trade name in the present case. The defendant as the record of the case

shows that he repeatedly has abused the process of law. In fact, even the written

statement which has been filed is not as per the parameters applicable as per Code

of Civil Procedure (CPC). A counter-claim was also filed in which court fees

were not filed. Though, there are various orders, in order to appreciate the

frivolousness of the case of the defendant, and the repeated filing of frivolous

applications by the defendant, one of such order dated 25.1.2005 is reproduced

below:-

"IA No. 7844/2000 Application under order 1 Rule 10 CPC has been filed by Shri Gajanand Aggarwal, sole proprietor of the defendant. He seeks impleadment of 16 persons named in the application to be impleaded as proforma defendants. Persons proposed to be impleded as proforma defendants. Persons proposed to be impleaded are Managing Directors of the plaintiff from time to time, employees and Government officials who have, as per the

allegations made in the application, exchanged correspondence pertaining to the subject matter of dispute.

Parties who are witnesses or could throw light on the respective version of the parties are neither necessary nor proper parties. Application is accordingly dismissed.

IA No. 7845/2000 Shri Gajanand Aggarwal prays in the application to direct investigation to CBI. CBI inquiry is sought pertaining to the accounts of the plaintiff.

Application is wholly frivolous. The same is dismissed. IA No. 454/2002 By this application, defendant seeks impleadment of TDCC Orissa Limited as a party. In what manner TDCC Orissa Limited is a necessary party has not been stated.

Application is accordingly dismissed. IA No. 6283/2002 Defendant prays for a direction that officers of the plaintiff be directed to hold a meeting with him. Relief prayed cannot be granted.

Application is dismissed.

IA No. 6284/2002 Defendant prays for rejection of the plaint alleging that this court has no territorial jurisdiction.

Issue of jurisdiction has been held against the defendant vide order dated 1st August, 2003.

Application is accordingly dismissed. IA No. 10567/2002 Defendant claims that since he has a counter claim in sum of Rs.14,15,974/-, said amount may be released to him.

Application is dismissed.

IA No. 11483/2002 Application is by defendant praying for disposal of IA No. 8483/2002 as also for directions for personal appearance of the Managing Director of the plaintiff.

In view of order dated 17th July, 2003, application is dismissed. IA No. 10835/2003 In view of order passed today disposing of IA No. 11483/2002, application is dismissed as having become infructuous for the reason defendant prays that IA No. 11483/2002 be disposed of. IA No. 11091/2003 Application is infructuous as it prays for disposal of IA No. 11483/2002.

IA No. 11092/2003 Prayer made is to stay order dated 1.8.2003 and decide IA No. 11483/2002.

Since IA No. 11483/2002 has been disposed of today, there is no requirement to vary order dated 1.8.2003.

The application is dismissed.

IA No. 11093/2003 Defendant prays for direction against the plaintiff requiring personal meetings to be held with the defendant.

Relief as prayed cannot be granted. Dismissed. IA No. 1030/2004 Reply be filed with advance copy to counsel for the defendant who may file rejoinder within four weeks.

Application be listed for arguments on 4th May, 2005. IA No. 11356/2003 Hearing of IA No. 11483/2002 is prayed for.

Said application has been disposed of today. Accordingly, IA No. 11356/2003 is dismissed.

IA No. 6572/2004 Application prays that meeting be directed to be held between officers of the plaintiff and the defendant.

Relief prayed cannot be granted.

Dismissed.

IA No. 6573/2004 Relief prayed is for release of money as per counter claim. IA is dismissed.

IA No.8506/2004 Application is frivolous. It prays that suit be held to be barred by law of res judicata. In what manner suit be held to be barred by law of res judicata is not forthcoming.

Application is dismissed.

CS(OS) No. 435/2000 Registry is directed not to entertain any application filed by defendant. If the defendant wishes to file an application, he would be at liberty to move the court by making a mention. As would be noted from the order passed today, one after another frivolous applications have been filed. Proceedings in the suit have been delayed by the defendant. List the matter on 4th May, 2004 for consideration of IA No. 1030/2004.

Learned counsel for the plaintiff states that the defendant is not cooperating before the Local Commissioner for recording of evidence. It is made clear to the defendant that if he takes an obstructive attitude, recording of evidence would proceed. Local Commissioner is directed to record evidence on day to day basis. If defendant is not present, plaintiff's evidence could continue.

Local Commissioner to complete recording of evidence before 4th May, 2005 and file a report."

3. The defendant though claims to be a small person, in reality he is a

contractor dealing in contracts worth crores and crores of rupees of Mahua seeds

with either the Orissa Government or the present plaintiff. In fact, records of this

Court show that the defendant for possible questionable reasons has been carrying

out business in different names.

4. The facts of the case are that the defendant offered to the plaintiff on

17.3.1997 to purchase about 1600 MTs of Mahua Seeds. On 29.4.1997, a sale of

approximately 1600 MTs of Mahua Seed was confirmed by the plaintiff to the

defendant at ` 7700/- per MT on ex.godown, Orissa plus taxes on "as is where is

basis". In the state of Orissa, there cannot be transportation of the Mahua seeds

unless a forest permit (TT permit) is taken from the forest authorities and it is the

defendant who in the present case had to obtain the TT permit. Stocks were to be

lifted after obtaining of the TT permits within 60 days i.e latest by 30.6.1997 and

as undertaken by the defendant vide letter dated 17.3.1997.

5. The defendant deposited a security deposit of ` 1,23,200/- being 1%

of the total sale value. The defendant however failed to deposit the balance

payment of the stocks. The defendant vide letter dated 14.6.1997 asked for

extension of time for lifting of Mahua Seed. The plaintiff vide its letter dated

01.7.1997 informed and clarified that the responsibility of arrangement of TT

permit and lifting of entire stock lies with the defendant, and the defendant was

requested to lift the entire stocks at the earliest. Time was extended up to

30.6.1997 for lifting of the stocks by the defendant. The defendant failed to appear

on the hearing before the Conservator of Forest for taking the TT permit, and

therefore, could not transport the stocks. The plaintiff therefore had to process the

stock of Mahua Seeds and sell the finished products i.e Oil/DOC at the risk and

cost of the defendant. The amount claimed by the plaintiff is calculated and stated

in para 11 of the plaint which reads as under:-

"That the plaintiff suffered a loss as per the details given below:

S. NO.       PARTICULARS                                               AMOUNT (RS.)

1.           Total cost of Seed (1600.00 MT)@Rs.7700/-PMT              Rs.1,23,20,000.00

2.           Interest incurred                                         Rs. 30,16,070.84

3.           Processing charges                                        Rs. 27,89,992.00

4.           Godown Rent                                               Rs. 4,21,032.00

5.           Insurance                                                 Rs.    65,049.00

             TOTAL (A)                                                 Rs.1,86,12,143.84

SALES PROCEEDS REALISED:

1.           Mahua Oil                                                 Rs.85,46,778.00

2.           Mahua DOC                                                 Rs. 7,33,676.00

             TOTAL (B)                                                 RS.92,80,454.00

LOSS(A-B)                                                             Rs.93,31,689.84

Less:    Amount received from S.D.                                     Rs. 1,23,200.00



 Therefore, Net Loss                                        Rs.92,08,489.84"

6. After serving the legal notice dated 13.7.1999 to the defendant, the

subject suit came to be filed. As already stated above, the defendant has filed

certain stands. I am using the expression "stands" in asmuch as, the pleadings

filed by the defendant, are more than one in number, but are not two written

statements as known to law. There is no reply on merits of different paragraphs of

the plaint in the replies/pleadings of the defendant. General allegations and

averments have been made and which in any case have not been substantiated

inasmuch as the defendant neither cross-examined the witnesses of the plaintiff and

also did not lead his evidence. The cross-examination of the witnesses of the

plaintiff was ultimately closed vide order dated 7.12.2005, and the defendant was

set ex parte vide order dated 8.9.2008.

7. The plaintiff has filed the affidavits by way of evidence of two of its

witnesses namely Sandeep Pehalwan and Sh. Ashok Kumar. Both these witnesses

are the Deputy Managers with the plaintiff. Affidavits by way of evidence

reaffirm the contents of the plaint and prove the facts of the case as also the loss to

the plaintiff. The affidavits by way of evidence show that it was the defendant

who had to obtain the TT permit, but he failed to do so, and possibly because he

may have wanted to illegally transport the seeds outside the state of Orissa. As

already stated above, the defendant has been carrying business under different

names with the plaintiff and the Orissa Government, some of which are on record

of this Court.

8. In view of the above, the claim of the plaintiff is proved and the suit is

decreed for a sum of `92,08,489.84 with pendente lite and future interest till

payment at 12% per annum simple. Plaintiff is also entitled to costs of the suit.

Decree sheet be prepared.

NOVEMBER 16, 2012                                    VALMIKI J. MEHTA, J.
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