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M/S. Veervani Sales Pvt. Ltd. Vs. M/S. Ritu Beri Designs Pvt. Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantM/S. Veervani Sales Pvt. Ltd.
RespondentM/S. Ritu Beri Designs Pvt. Ltd.
Excerpt:
.....notice dated september 3, 2008 under section 434 of the companies act, 1956. on november 15, 2010 delhi high court directed the defendant to pay rs.5,91,399/- to the plaintiff without prejudice to the rights and contentions of the defendant company in the said proceeding. by order dated november 15, 2010 the plaintiff was given the liberty to file civil suit against the defendant for realisation of the balance amount of rs.2,30,470/- and for realisation of interest on rs.5,91,399/-. thereafter, the plaintiff has instituted the present suit praying for decree for realisation of interest on rs.5,91,399/- at the rate of 18% per annum from february 2, 2006 to december 13, 2010 and for realisation of amount of debit note to the tune of rs.2,30,470/- and interest accrued thereon at the rate.....
Judgment:

Form No-J(2) CS317of 2010 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE M/S. VEERVANI SALES PVT. LTD. Versus M/S. RITU BERI DESIGNS PVT. LTD. BEFORE: The Hon'ble JUSTICE RANJIT KUMAR BAG Appearance: Mr. Rakhi Shroff, Adv. …for the plaintiff. Mr. Ajoy Debnath, Adv. Mr. Asif Kr. De, Adv. Mr. Deb Ranjan Das, Adv. …for the defendant. Hearing concluded on: November 2, 2016. Judgment delivered on: November 2, 2016. R.K. Bag, J.

: This is a suit for realisation of Rs.12,33,986/-. The fact of the case made out by the plaintiff in brief is as follows: The plaintiff is carrying on business of readymade garments, sarees and stitched salwar suits within the territorial jurisdiction of this Court. The defendant is also dealing in sarees, stitched salwar suits and readymade garments at shop nos.3 and 4, building no.1091/1, Ambavata Complex, Mehrauli, New Delhi. In the month of January, 2006, the plaintiff selected 57 pieces of sarees and 53 pieces of stitched salwar suits for purchase for the shop of the plaintiff in Kolkata. The value of the said selected materials was Rs.16,74,574/- as per retail invoice/bill of the defendant. The plaintiff paid Rs.10,00,000/- to the defendant by cheque no.099064 dated January 10, 2006 drawn on Karnataka Bank. The plaintiff also paid balance amount of Rs.6,74,574/- to the defendant by cheque no.547187 dated February 1, 2006 drawn on IDBI bank. The defendant encashed both the cheques and received the entire amount of Rs.16,74,564, but despatched only 32 pieces of sarees and 47 pieces of salwar suits to the plaintiff by way of different consignments between February 9, 2006 and March 31, 2006.

2. On scrutiny of the consignments the plaintiff found three pieces of defective sarees and four pieces of salwar suits which were not selected for purchase by the plaintiff out of total 32 pieces of sarees and 47 pieces of salwar suits despatched by the defendant to the plaintiff. The plaintiff returned three pieces of unselected sarees and four pieces of defective salwar suits with three debit notes of Rs.2,30,470/- on April 20, 2006 and the defendant duly received the same.

3. The plaintiff issued one notice to the defendant on August 9, 2006 calling upon the defendant to pay the balance amount of Rs.5,91,399/- for which sarees and salwar suits were not despatched to the plaintiff and Rs.2,30,470/- for which debit notes were sent by the plaintiff to the defendant for defective and unselected dress materials. Ultimately, the plaintiff moved the High Court at Delhi for winding up of the defendant company for realisation of the claim made by the plaintiff in the notice dated September 3, 2008 under Section 434 of the Companies Act, 1956. On November 15, 2010 Delhi High Court directed the defendant to pay Rs.5,91,399/- to the plaintiff without prejudice to the rights and contentions of the defendant company in the said proceeding. By order dated November 15, 2010 the plaintiff was given the liberty to file civil suit against the defendant for realisation of the balance amount of Rs.2,30,470/- and for realisation of interest on Rs.5,91,399/-. Thereafter, the plaintiff has instituted the present suit praying for decree for realisation of interest on Rs.5,91,399/- at the rate of 18% per annum from February 2, 2006 to December 13, 2010 and for realisation of amount of debit note to the tune of Rs.2,30,470/- and interest accrued thereon at the rate of 18% per annum from April 20, 2006 to December 22, 2010 from the defendant.

4. The defendant has contested the suit by filing written statement wherein the defendant has denied and disputed the material allegations made in the plaint. The specific case of the defendant is that the suit is barred by limitation as the suit was instituted on the basis of the notice given to the defendant by the plaintiff in the month of August, 2006. The further case made out by the defendant is that the defendant delivered 57 pieces of sarees and 53 pieces of stitched salwar suits to the plaintiff, though the Accounts Officer of the defendant made erroneous statement about delivery of the dress materials to the plaintiff before Delhi High Court. It is alleged by the defendant that the plaintiff returned some of the dress materials without assigning any reason after long lapse of time and the said dress materials could have been sold out by the defendant at a much higher price than the price which was demanded from the plaintiff. The defendant has already paid the balance amount of advance money to the plaintiff as per direction of the Delhi High Court and as such the plaintiff is not entitled to get any amount of money from the defendant. According to the defendant, the present suit is liable to be dismissed with costs.

5. On the above pleadings, the issues framed by the Court are recast as follows :(i) Is the present suit barred by limitation ?. (ii) Is the plaintiff entitled to a decree for a sum of Rs.12,33,986/- as stated in paragraph 19 of the plaint ?. (iii) Is the plaintiff entitled to get other reliefs ?. Issue No.(i) 6. Mr. Ajoy Debnath, learned Counsel for the defendant contends that the present suit is instituted by the plaintiff on the basis of the notice dated August 9, 2006 (Ext.G) and the present suit is instituted on December 22, 2010 and as such the suit is barred by limitation. On the other hand, Ms. Rakhi Shroff, learned Counsel for the plaintiff, submits that there is exchange of correspondence between the plaintiff and the defendant from the year 2006 till filing of application by the plaintiff before Delhi High Court for winding up of the defendant company in the year 2009. By referring to the order dated November 15, 2010 (Ext.K), Ms. Shroff submits that Delhi High Court gave liberty to the plaintiff to file the civil suit for realisation of the balance amount of advance money to the tune of Rs.2,30,470/- from the defendant and also for realisation of the interest from the defendant on the said balance amount of advance money and also interest on Rs.5,91,399/- which was paid by the defendant to the plaintiff as per direction of the Delhi High Court. According to Ms. Shroff, the cause of action for filing the instant suit arose after November 15, 2010 and the present suit is instituted on December 22, 2010 and as such the question of limitation does not arise at all.

7. On consideration of the pleadings of both parties and on scrutiny of the evidence on record, I find that there was exchange of correspondence between the plaintiff and the defendant from the year 2006 till the date of filing of the application by the plaintiff before Delhi High Court for winding up of the defendant company in the year 2009.

8. It appears from the order dated November 15, 2010 (Ext.K) passed by Delhi High Court in connection with Company Petition No.4 of 2008 that Delhi High Court accepted the submission made on behalf of the plaintiff that the plaintiff is willing to file a Civil Suit for realisation of the balance amount of advance money to the tune of Rs.2,30,470/- from the defendant along with interest accrued thereon and also for realization of interest from the defendant on Rs.5,91,399/which was paid by the defendant to the plaintiff as per order of Delhi High Court. Since the instant suit is instituted on December 22, 2010 and since the cause of action for the present suit arose after November 15, 2010, I am unable to accept the contention made on behalf of the defendant that the suit is barred by limitation and the issue is decided in favour of the plaintiff. Issue Nos.(ii) and (iii):

9. Both these issues are inter-related and as such these are taken up together for convenience of discussion. There is no dispute that the plaintiff placed the order with the defendant for supply of 57 pieces of sarees and 53 pieces of stitched salwar suits for the shop room of the plaintiff in Kolkata. It is also not disputed that the plaintiff paid Rs.16,74,564/- to the defendant for purchase of the said sarees and salwar suits by way of issuing two cheques – one cheque for Rs.10 lakh on January 10, 2006 and another cheque for Rs.6,74,564/- on February 1, 2006. Admittedly, the defendant encashed both the cheques and received Rs.16,74,564/- from the plaintiff. It appears from the copy of the challans (Ext.B series) that the plaintiff received 32 pieces of sarees and 48 pieces of salwar suits from the defendant on February 3, 2006 and February 10, 2006. It is true that the defendant raised bill (Exhibit-‘C’) showing supply of 57 pieces of sarees and 53 pieces of stitched salwar suits. One Vijay Bharadwaj, the Accounts Officer of the defendant company has deposed on behalf of the defendant before this Court. It appears from answer to question nos.61 and 62 that this witness could not show any document from Judge’s Brief of Document to establish that the defendant delivered 57 pieces of sarees and 53 pieces of stitched salwar suits to the plaintiff, though the bill was raised by the defendant for 57 pieces of sarees and 53 pieces of stitched salwar suits. In the absence of any document to establish that the defendant supplied 57 pieces of sarees and 53 pieces of stitched salwar suits, I am unable to accept that the defendant supplied the said dress materials to the plaintiff.

10. I have already observed that the defendant supplied only 32 pieces of sarees and 48 pieces of salwar suits to the plaintiff though the plaintiff has claimed both in oral evidence and in the pleading that the plaintiff received only 47 pieces of salwar suits from the defendant. Since the documentary evidence indicates that the plaintiff has received 32 pieces of sarees and 48 pieces of salwar suits, I am of the view that the documentary evidence (Ext.B series) will prevail over oral evidence and thereby the plaintiff must have received 32 pieces of sarees and 48 pieces of salwar suits from the defendant. The debit notes (Ext.D series) go to establish that the plaintiff had returned three pieces of defective sarees, four pieces of salwar suits which were not selected by the plaintiff for purchase and six pieces of salwar which were found to be defective.

11. The plaintiff has claimed Rs.2,30,470/- from the defendant for the defective sarees and salwar suits which were returned by the plaintiff and duly received by the defendant. The balance of the advance amount to the tune of Rs.5,91,399/- for which dress materials were not supplied by the defendant to the plaintiff was received by the plaintiff from the defendant by the order of Delhi High Court in connection with Company Petition No.4 of 2008. There is nothing on record to indicate that the defendant has supplied the defective dress materials to the plaintiff at any material point of time and as such, the amount of Rs.2,30,470/- which is claimed by the plaintiff from the defendant on the basis of debit note must be realized by the plaintiff from the defendant.

12. In the instant suit, the plaintiff has claimed interest at the rate of 18% per annum on the balance amount of advance money already paid by the plaintiff to the defendant by the order of Delhi High Court and the interest accrued on Rs.2,30.470/- for a specific period of time at the rate of 18% per annum. On my query learned counsel for the plaintiff submits that the plaintiff has claimed interest at the rate of 18% per annum as the defendant could have claimed the same rate of interest from the plaintiff, had the bill amount not been paid by the plaintiff to the defendant within a period of 15 days from the date of issuance of the bill as reflected in the bill (Ext.C). Since the defendant would have claimed interest at the rate of 18% per annum from the plaintiff, the plaintiff is also entitled to claim the same rate of interest from the defendant on Rs.2,30,470/from April 20, 2006 to December 22, 2010 and also the same rate of interest on Rs.5,91,399/- from February 2, 2006 to December 13, 2010. However, I am inclined to give simple interest at the rate of 18% instead of compound interest which is calculated by the plaintiff in the plaint.

13. The plaintiff, thus, do get a decree against the defendant for Rs.2,30,470/- along with interest accrued thereon at the rate of 18% per annum from April 20, 2006 to December 22, 2010 and also interest at the rate of 18% per annum on Rs.5,91,399/- from February 2, 2006 to December 13, 2010. Both the issues are, thus, decided in favour of the plaintiff in part. Accordingly, the suit is decreed in part with proportional costs. The department is directed to draw up the decree expeditiously. (R. K. BAG, J.) sp2/sn/cs


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