Madras High Court
M/S.P.K.Vaduvammal vs M/S.M.J.D.Construction & ... on 28 June, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S.No.170 of 2020
and A.Nos. 1576 of 2020 and 1765 of 2021
M/s.P.K.Vaduvammal
A registered Partnership Firm,
Rep. by its Partner Mr.P.C.Shyamsunder,
New No.97, Old No.143A,
Rasappa Chetty Street,
Park Town, Chennai 600 003. .. Plaintiff
vs
M/s.M.J.D.Construction & Engineering Contractors
Private Limited,
M.J.Bhavankannummamoodu,
Palukal Post 629 170,
Kanyakumari District,
Tamil Nadu 629 170. ...Defendant
Prayer:Civil Suit filed under Order IV Rule I of the O.S.Rules Read with
Order VII Rule I of C.P.C., 1908, praying for the following:
a) to direct the defendant to pay to the plaintiff a sum of
Rs.2,43,00,000/- (Rupees Two Crores Forty Three Lakhs Only) together
with interest at 18% per annum on Rs.Rs.2,43,00,000/- (Rupees Two
Crores Forty Three Lakhs Only) from the date of plaint till date of
realization of the entire suit claim;
b) for the cost of this suit.
For Plaintiff : Mr. S.R.Raghunathan
For Defendants : Mr.E.Om Prakash
Senior Counsel
for Mrs.P.Meghane Nair
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2
JUDGMENT
Heard the learned counsels for the plaintiff and the defendant.
2. The suit is filed for recovery of a sum of Rs.2,43,00,000/-
together with interest at the rate of 18% per annum. The cause of action
for the present suit has arisen from a compromise entered between the
parties before the NCLT. From the pleadings, it appears that the plaintiff
dealing in aluminium, bitumen, steel, etc., had supplied to the defendant
for credit goods worth Rs.2,17,67,058/- against invoices but the
defendant had failed to pay. Hence, the plaintiff has approached the
NCLT under Section 8(1) of the Insolvency and Bankruptcy Code, 2016,
calling upon the defendant to pay the money due towards the goods sold
and delivered. In the said proceedings, the parties on 06.01.2020 had
entered into compromise wherein the defendant has agreed to pay a sum
of Rs.2,43,00,000/- to the plaintiff as full and final settlement towards
the principal and interest for the delayed payment. To discharge the said
liability, the defendant has issued six post dated cheques. Unfortunately,
all those cheques were returned which has forced the plaintiff to explore
the common law remedy available to him for filing suit for recovery of
money along with a garnishee application.
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3. The defendant after receiving the suit summon, has filed
written statement wherein raised a preliminary objection regarding the
maintainability of the suit referring the order of the NCLT dated
06.01.2020, wherein there is a specific observation by the NCLT that in
case of difficulty in implementing the compromise order, the parties shall
approach NCLT.
4.From the representation made by the counsels, this Court
understand that this objection was overruled by the learned Single Judge
and O.S.A is preferred before the Division Bench is pending. Be as it
may, as far as the other defense taken by the defendant in the suit is that
though a compromise decree was entered between the parties before the
NCLT, due to covid situation, the defendant was not able to honor the
cheques issued and had made all bonafide efforts to pay the plaintiff as
per the terms of the compromise entered. However, a suit that too under
the Commercial Courts Act is not maintainable.
5. In the garnishee application, the garnishee had deposited a
sum of Rs.93,00,000/- as per the order passed by this Court in
Application No.1577 of 2020. Pursuant to that, the plaintiff has taken out
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an application for payment out in Application No.1765 of 2021. Pending
suit, the defendant has already paid a sum of Rs.1,50,00,000/- to the
plaintiff. Therefore, the learned counsel appearing for the defendant
submitted that at the time of entering into compromise before the NCLT,
the defendant had no opportunity to look into the accounts and in the
distress situation, the defendant agreed to pay a sum of Rs.2,43,00,000/-
to the plaintiff. However, now after verifying the accounts, the defendant
come to know only a sum of Rs.1,53,00,000/- towards principal is
payable to the plaintiff and therefore, the compromise entered between
the parties before the NCLT requires a revisit.
6. To counter the above submission, the learned counsel for the
plaintiff submitted that it is a new argument placed by the defendant for
the first time in the payment out application. Ever since the proceedings
before the NCLT, the quantum of money payable to the plaintiff against
the goods sold and delivered was never in dispute and on 06.01.2020, the
defendant consciously agreed to pay a sum of Rs.2,17,00,000/- towards
principal and Rs.25,00,000/- towards interest for a full quit and
settlement. To honor the said compromise, six cheques were issued but
not honored. Therefore, the present defense taken by the defendant
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regarding the quantum payable is only an after thought to delay the
process.
7. After considering the rival submissions and perusing the
records, this Court holds that the suit is very much maintainable under
the Commercial Courts Act jurisdiction and the suit filed pursuant to the
compromise entered between the parties before the NCLT as a common
law remedy available to the plaintiff to enforce his right for recovery of
money.
8. As far as the quantum which is now disputed by the
defendant, this Court finds that claim of Rs.2,17,00,000/- before the
NCLT is supported by invoice. The said amount for the goods sold and
delivered neither at the time of claim before the NCLT nor at the time of
claim under this suit, the defendant has raised any dispute over the
invoice or the value of the invoice. Hence, it is too late for the defendant
to say that they are not liable to pay Rs.2,17,00,000/- towards goods sold
and delivered which is the principal amount as per the invoices and as
claimed before the NCLT by the defendant. To be noted, even thereafter,
the conduct of the defendant issuing the following six cheques indicates
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that there is no dispute over the money dues and they have accepted to
pay Rs.2,43,00,000/- to the plaintiff in six installments.
S.No. Cheque No. Date of Issue Amount (Rs.) Drawn on
1 189951 31.01.2020 55,00,000/- Union Bank of
India
2 189952 29.02.2020 35,00,000/- Union Bank of
India
3 189953 31.03.2020 35,00,000/- Union Bank of
India
4 189954 30.04.2020 35,00,000/- Union Bank of
India
5 189955 31.05.2020 35,00,000/- Union Bank of
India
6 189956 30.06.2020 48,00,000/- Union Bank of
India
Only after those six cheques got bounced and the realisation of
money became impossible, suit has been filed. Being a commercial
transaction, jurisdiction of this court to entertain the suit is well found.
Pending suit, the defendant had already paid Rs.1.5 crores and as far as
the balance Rs.93 lakhs towards the principal, claimed under the suit the
garnishee had deposited the money in the Court on 08.01.2021, pursuant
to the order passed by this Court in the garnishee application.
9. In the said circumstances, the plaintiff has filed Application
No.1765 of 2021 for payment out of the said money and also Application
No.1576 of 2020 for summary judgment. The pleadings as well as the
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documents in this case does not require any oral evidence to decide, since
the liability is admitted before the competent forum viz., NCLT and also
in the written statement, there is no triable issues. In the said
circumstances, there is no real prospect of succeeding by the defendant
regarding the admitted liability of Rs.2,43,00,000/- by way of
compromise memo and by way of six cheques issued for the payment of
the said amount. At the most, the dispute in the suit claim shall be only
regarding liability to pay interest pending suit and if yes, the rate of
interest.
10.Learned counsel appearing for the plaintiff herein submits
that the plaintiff is ready to forgo the interest part in the suit in the event,
the Court permits the plaintiff to withdraw Rs.93,00,000/- deposited by
the garnishee and pass summary judgment to that effect.
11. This court finds that the application for summary judgment
was filed on 13th March 2020 and notice was issued to the defendants
long back. Matter has been kept pending for consideration all along and
due to the subsequent events like deposit of payment of Rs.1.5 crores
towards the suit claim and deposit of Rs.93,00,000/- by the garnishee,
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which satisfies the principal amount of the said claim, this Court is of the
view quietus should be given to the dispute by passing summary
judgment in the following terms:
a) As against the suit claim of Rs.2,43,00,000/- the plaintiff
herein has already been paid Rs.1.5 crores. Rs.93,00,000/- is deposited
by the garnishee and the same is in the suit account. Therefore, towards
full quit and satisfaction, the plaintiff is permitted to withdraw
Rs.93,00,000/-, which is in the suit account.
b) There shall be no order as to interest and suit costs or
c) Any criminal proceedings initiated by the plaintiff as against
the defendant regarding the six cheques mentioned above, the same shall
be withdrawn by the plaintiff and shall not prosecute the defendant for
dishonoring of those six cheques.
11. Accordingly, the suit is partly allowed. No order as to
costs. Application Nos.1576 of 2020 and 1765 of 2021 are allowed.
28.06.2021
Speaking/Non Speaking
Index :Yes/No
vri
Note: Registry is directed to pay Rs.93,00,000/- to the
Plaintiff in compliance of the procedure.
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DR.G.JAYACHANDRAN,J.
Vri
C.S.Nos.170 of 2020
28.06.2021
https://www.mhc.tn.gov.in/judis/
