Madras High Court
Mr.Gapparov Abdivakhab vs M/S.Golden Trees Biotech Pvt. Ltd on 20 October, 2022
C.S.No.370 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20.10.2022
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
C.S.No.370 of 2014
Mr.Gapparov Abdivakhab .. Plaintiff
Vs.
1. M/s.Golden Trees Biotech Pvt. Ltd.,
Rep. By its Managing Director
Mr.Nasser Ali
Having Office at No.119, Bricklin Road
Grama Street, 1st Floor, Purasaiwalkam
Chennai – 600 007
2. Mr.Nasser Ali
Managing Director
M/s.Golden Trees Biotech Pvt. Ltd.,
No.119, Bricklin Road
Grama Street, 1st Floor, Purasaiwalkam
Chennai – 600 007 .. Defendants
This Civil Suit is preferred, under Order IV Rule 1 of the Original
Side Rules read with Order VII Rule 1 CPC directing the 1st defendant to
pay a sum of Rs.92,51,860/- along with future interest at 24% p.a on
1/23
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Rs.75,30,000/- from the date of plaint to till the date of realization,
directing the 1st defendant to pay a sum of Rs.90,00,000/- towards
damages and for the costs of the suit.
For Plaintiff : Mr.K.V.Sundararajan
along with Mr.Vishal.R
& Mr.Sivamanikandan
For Defendants : Set ex parte
JUDGMENT
Captioned suit is listed under the cause list caption 'FOR ORAL
ARGUMENTS'.
2. The proceedings made by Hon'ble predecessor Judge on
25.08.2022 and thereafter, by me in the listings on 27.09.2022,
29.09.2022, 11.10.2022, 18.10.2022 are of relevance and a scanned
reproduction of these proceedings are as follows:
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3. The above proceedings are telltale qua the trajectory the
captioned matter has taken.
4. Mr.K.V.Sundararajan, learned counsel on record for sole
plaintiff along with Mr.Vishal.R and Mr. Sivamanikandan is before this
Commercial Division. Learned counsel has placed before this
Commercial Division a convenience set. One Kishori Lal, Power of
Attorney Agent of plaintiff, was examined as PW1 and he was cross-
examined by the counsel for plaintiff on 03.12.2019. Thereafter, the
trajectory the matter took has been captured in the proceedings made in
the previous listings which have been set out supra.
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5. Learned counsel submits that the captioned suit is one for
recovery of money and usual prayer for costs and residuary limb of
prayer also form part of the prayer paragraph. Learned counsel submits
that money was paid towards supply of cashew nuts by the defendants
but the supply ultimately did not happen. In this regard, learned counsel
draws the attention of this Commercial Division to Ex.P2, which is a
contract dated 29.03.2013 vide which 18 metric tonnes of cashew nuts
had to be supplied by the defendants to the plaintiff. Ex.P3 dated
29.03.2013 is the proforma and Ex.P4 dated 02.04.2013 is the receipt
evidencing receipt of cash. Thereafter, the defendants sold the
consignment to another third party and did not supply to the plaintiff.
This resulted in plaintiff issuing a notice dated 26.11.2013 (Ex.P9). This
notice from the plaintiff met with a reply dated 20.12.2013 (Ex.P10)
from the defendants. In this reply, the defendants do not dispute the non-
supply. They go a step further and submit that payment will be made as
soon as they receive monies from the third party purchaser to whom
they had sold the consignment. Considering the clinching nature of
these documents, this Court deems it appropriate to scan and reproduce
Ex.P7, Ex.P8 and Ex.P10 which are as follows:
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6. The last three paragraphs of Ex.P10 i.e., wherein the defendants
do not dispute non-supply and say that payment will be made on receipt
of monies from the third party to whom they have sold the consignment
is articulated. However, notwithstanding such plea, defendants have
made a counter claim claiming that first defendant has paid a sum of
Rs.1,19,49,000/- towards procurement. Such amounts have been incurred
only pursuant to the second contract entered into with the plaintiff and
therefore, plaintiff is liable to pay this amount. Defendants have claimed
a sum of little over Rs.1.50 Crores, i.e., Rs.1,50,55,740/- together with
further interest. Plaintiff has filed a written statement (reply to the
counter claim) inter-alia contending that the plea that the first defendant
has paid Rs.1,19,49,000/- towards procurement and also incurred
expenses towards handling charges are false and such documents have
been created only for the purpose of this case. It was also contended that
the second contract has nothing to do with the first contract.
7. This Court carefully considered all the exhibits, namely Exs.P1
to P12 and the deposition of PW1. There is nothing adverse in the
deposition and suffice to say that PW1 has withstood the cross-
examination. The deposition of PW1 is in tune and tandem with the
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pleadings in the plaint and it buttresses the plaintiff's claim insofar as the
money claim for refund but there is no document as regards damages.
Learned counsel drew the attention of this Court to Ex.P8 and made a
faint attempt to say that this may buttress the damages claim. In the
considered view of this Commercial Division, there is nothing to
demonstrate that the plaintiff has suffered actual loss owing to non-
supply.
8. No elucidation is required to say that a counter claim becomes a
plaint by itself. This means that burden of proof is on the defendant who
makes the counter claim insofar as the counter claim is concerned. This
burden never shifts, only the onus may swing like a pendulum. In the
case on hand, defendants have not let in evidence and discharged the
burden of proof cast on them to show that the alleged expenditure
towards procurement and the expenses qua second contract were actually
incurred and that the second and first contracts are dovetailed. If only
defendants had discharged this initial burden of proof, onus would have
shifted to plaintiff but that did not happen. Therefore, it is clear that
defendants have not discharged the burden of proof qua counter claim
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and therefore the counter claim inevitably fails and cannot but be
dismissed.
9. To be noted, prayer paragraph in the plaint is paragraph 16 and
the same reads as follows:
16. The Plaintiff therefore prays that this Hon'ble Court
may be pleased to pass a judgment and decree against the
Defendants:
a. directing the 1st defendant to pay a sum of
Rs.92,51,860/- along with future interest at 24% p.a on
Rs.75,30,000/- from the date of plaint to till the date of
realization;
b) directing the 1st defendant to pay a sum of
Rs.90,00,000/- towards damages;
c) for the costs of this suit and
d) for such other reliefs as this Hon'ble Court may deem fit
to pass.
10. The sequitur of the narrative, discussion and dispositive
reasoning thus far is, limb (a) is acceded to the extent that there will be a
decree for Rs.92,51,860/- together with interest @ 6% p.a on
Rs.75,30,000/- from the date of plaint till the date of realization. To be
noted, this future interest at 6% is in tune and tandem with Section 34 of
'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity). As
regards limb (b) is concerned, the same is negatived as there is no
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document to support damages. As regards limb (c) is concerned, costs
are awarded as the plaintiff has been tossed around. This Court has taken
the view that compensatory costs for vexatious defences can be awarded
under Section 35A in cases where defendants play ducks and drakes with
the plaintiff and the legal proceedings. The case on hand appears to be
one such typical case as the defendants have entered appearance, filed
written statement, cross-examined PW1 and thereafter, allowed the
matter to go ex parte. Therefore, this would also qualify as a vexatious
way of defending a suit. To be noted, sub-section (2) of Section 35-A of
CPC has been amended vide 'The Commercial Courts Act, 2015 (4 of
2016)' [hereinafter 'CCA' for the sake of brevity]. Therefore, there is no
cap qua compensatory costs under Section 35-A of amended CPC.
Considering the nature of the matter, this Court deems it appropriate to
award compensatory costs of Rs.1,00,000/- [Rupees One Lakh only] in
addition to the usual costs for which bill of costs should be filed by the
plaintiff. To be noted, this compensatory costs is awarded under limb (d)
i.e., usual residuary prayer limb in a prayer. As regards counter claim, the
same is dismissed.
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Captioned suit decreed with costs, compensatory costs in the
manner and to the extent indicated above and counter claim of
defendants is dismissed with costs.
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gpa
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M.SUNDAR, J.
gpa
Judgment
in C.S.No.370 of 2014
20.10.2022
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