Delhi High Court
Oxbridge Associates Limited vs Mr Atul Kumra on 21 December, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 21.12.2016
+ CS(OS) 3148/2015
OXBRIDGE ASSOCIATES LIMITED ..... Plaintiff
Through: Mr. Jayant Mehta, Advocate along
with Mr. Sumeet Lall and Ms. Ashmi
Mohan, Advocates.
versus
MR ATUL KUMRA ..... Defendant
Through: Mr. S.K. Singh, Advocate along with
Mr. Abhishekh Sharma, Advocate.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
I.A. No. 487/2016 (under Order XXXVIII Rule 5 read with Section 151
of the Code of Civil Procedure)
1. The present suit has been filed for recovery of a sum of
`1,55,46,586.62/- along with the pendete lite and future interest against the
defendant. It is not in dispute that the plaintiff had placed two purchase
orders Nos.205 and 213 with the defendant and as per these orders the
defendant raised performa invoices and one of the conditions was to make
pre-payment and accordingly, the plaintiff had made the payment against the
performa invoices for purchase order Nos.205 and 213.
2. The contentions of the plaintiff is that the defendant failed to provide
the products in terms and conditions of the purchase order and invoices
which caused huge losses to the plaintiff. The plaintiff cancelled the
CS(OS) 3148/2015 Page 1
purchase order no.205 on 24.04.2015 and purchase order no.213 on
22.05.2015 and sought refund of USD 281,753.92 and USD 84,275.60
which money was paid in advance by the plaintiff to the defendant against
the performa invoices. On demand, the defendant refused to refund the
entire amount and arbitrarily and unilaterally made a deduction of 25%
towards handling and cancellation charges and exchange rate difference
against both the purchase orders. It is submitted that they are not entitled to
make such deductions. It is further contended that the plaintiff had accepted
a sum of USD150,000 as part payment under protest with respect of first
purchase order. The total sum due in respect of first purchase order no. 205
is USD 131,735.92 and USD 84,725.60 in respect of second purchase order
213 and the total due amount is USD 216,461.52 which along with interest
as on 29.09.2015 in rupees comes to Rs.1,55,46,586.62. It is further
submitted that the defendant in his Statement of Account as on 13.05.2015
and 15.06.2015 sent through an e-mails dated 13.05.2015 and 26.06.2015
admitted having received USD 281,753.92 and USD 84,275.60 and their
liability to pay a sum of USD 180,037.30 against the purchase order no. 205
and USD 57,790.93 against purchase order no. 213. It is submitted that the
plaintiff has learnt that the drug license of the defendant is subject to final
CS(OS) 3148/2015 Page 2
outcome of the proceedings pending before the Supreme Court in SLP (C)
5844 and 5846 of 2005 and in case the order is passed against the defendant
they would be out of business and in that eventuality it would not be
possible for the plaintiff to recover the said amount. It is also submitted that
several other proceedings including summary suit (Federal Express
Corporation vs. Atul Kumra Prop. Medicine House) and criminal
proceedings relating to cheating (CBI vs. Atul Kumra and Another) are
pending against the defendant and if he is convicted, the defendant being is
the sole proprietorship concern, it would not be possible for the plaintiff to
recover decretal amount. On these submissions it is prayed that defendant
be directed to furnish security either by depositing this amount in the court
or in any other manner.
3. The application is contested by the defendant. It is submitted that the
present application is not maintainable since on ground for the grant of the
relief under the provisions of Order XXXVIII Rule 5 CPC has been made
out. The plaintiff has not shown any facts which would suggest that
defendant was about to dispose of his properties with intent to delay or
obstruct the execution of decree and hence the application is liable to be
dismissed. It is also submitted that it is the plaintiff who owes money to the
CS(OS) 3148/2015 Page 3
defendant as per the latest Statement of Accounts, copy of which was
furnished by the defendant during the course of arguments. It is prayed that
the application be dismissed.
4. I have heard arguments and given due consideration to the rival
contentions of the parties including the documents on record and furnished
during arguments.
5. The Supreme Court in the case of Rajendran and Others vs.
Shankar Sundaram and Others (2008) 2 SCC 724 has held that while
disposing of the application under Order XXXVIII CPC the court has to take
prima facie view and it is not required to go into the correctness or
otherwise of all the contentions raised by the parties. In the present case, the
documents on record prima facie establish the fact that there were two
purchase orders no.205 and 213 and two invoices were issued by the
defendant. Pursuant to those invoices the plaintiff made the payments. The
receipts of the said payments is also on record and also in their emails dated
13.05.2015 and 26.06.2015, the defendant had admitted that they had
received an amount of USD 281,753.92 and USD 84,275.60. The documents
showing the cancellation of purchase order is also on record.
CS(OS) 3148/2015 Page 4
6. There is an e-mail of the defendant sent to the plaintiff enclosing the
Statement of Account as on 13.05.2015 acknowledging the receipt of an
amount of USD 281,753.93 and after making certain adjustments payable
amount as USD 180,037.30 in respect of first purchase order. Defendant
sent another e-mail dated 26.06.2015 and the accompanying Statement of
Account of the defendant as on 26.06.2015, which shows an
acknowledgement of receipt of USD 84,275.60 and refund amount of USD
57,790.93 as on 26.06.2015. Out of this total amount received by the
defendant a sum i.e USD 150,000 admitted to have been received by the
plaintiff. The defendant although during the course of arguments has filed
his current Statement of Account as on 30.06.2015 showing its liability to
pay plaintiff USD 36,947.60 and liability of the plaintiff to pay to the
defendant a sum of USD 37,544.75 showing balance payable by plaintiff to
him as USD 597.15. However, it is not shown that this Statement of
Account was ever sent to the plaintiff by him. On the other hand, the earlier
e-mails dated 13.05.2015 and 15.06.2015 of the defendant shows a different
liability of the defendants as regards the repayment of the received amount
is concerned in respect of two orders.
CS(OS) 3148/2015 Page 5
7. It is settled proposition that the courts at this stage is concerned with
the prima facie case and is not required to go in the merit of the case. Prima
facie it is apparent that the defendant owes money to the plaintiff. It is not
disputed that their drug license is subject matter of a dispute before the
Supreme Court in SLP (C) 5844 and 5846 of 2005 and if it is cancelled, it is
obvious that the defendant would be out of business, he is doing the business
of supplying pharmaceutical and medical products which he cannot run
without a license. Also there are criminal cases pending before CBI against
the defendant. In view of this, I hereby direct the defendant to deposit
`1,55,46,586.62/- with the Registrar General of this Court within four weeks
from the date of this order and the Registry is directed to keep the said sum
in the form of Fixed Deposit initially for one year and thereafter renewable
from year to year.
8. With these directions, the application stands disposed of.
CS(OS) 3148/2015
List on 17.01.2017.
DEEPA SHARMA
(JUDGE)
DECEMBER 21, 2016
rb
CS(OS) 3148/2015 Page 6
