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Consultants Combine Pvt.Ltd. Vs. Pushpraj Bajaj - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantConsultants Combine Pvt.Ltd.
RespondentPushpraj Bajaj
Excerpt:
.....by four different cheques during the period from august 3, 2010 till september 21, 2010. the terms of purchase orders indicate that the plaintiff will pay an advance of 25% and inspect the materials by engaging an inspection agency – m/s. tuv rheinland at the premises mentioned by the defendant and thereafter balance payment will be made by the plaintiff and the materials will be dispatched by the defendant.3. the defendant encashed four cheques issued by the plaintiff for total amount of rs.47,43, 186/-. it is alleged that the defendant failed to offer inspection of the materials to the plaintiff and thereby failed to dispatch materials as per terms of contract. ultimately on november 4, 2011 the plaintiff cancelled the aforesaid two purchase orders issued in favour of the.....
Judgment:

Form No.(J2) IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE Present : The Hon’ble Justice Ranjit Kumar Bag CS No.88 of 2014 CONSULTANTS COMBINE PVT.LTD. Versus PUSHPRAJ BAJAJ For Plaintiff : Mr. Chayan Gupta, Advocate with Mr. Arik Banerjee, Advocate For Respondent : Mr. Rishav Banerjee, Advocate with Mr. Javed Majid, Advocate Hearing concluded on : November 16, 2016. Judgement delivered on : November R.K. BAG, J.

16 , 2016. The plaintiff, a company incorporated under the Companies Act, 1956 is engaged in the business of architecture and turn key contracts. The defendant is the sole proprietor of the firm “JLB Associates”. and is engaged in the business of general order supply and deals in ceramic, wall, floor tiles, sanitary items, paints, vinyl and wooden flooring and rubber wood furniture. In the month of December 2008 the plaintiff entered into a joint venture agreement with M/s. Bharat Bhari Udyog Nigam Limited. (hereinafter referred to as BBUNL) for construction of housing project at Gabon in Central Africa under the credit policy between the Government of India and the Government of Gabon. The said association of the plaintiff with the said BBUNL is known as BCD-INGAB Consortium. Under the said joint venture the plaintiff was responsible for procurement of materials and carrying out construction of housing project, whereas BBUNL was responsible for providing necessary administrative support.

2. In the month of July 2010 the defendant expressed his desire to supply ceramic wall, floor tiles of diverse shapes, sizes and colour to the plaintiff at a reasonable price for the housing project in Gabon, Central Africa. The plaintiff issued two purchase orders in favour of the defendant on August 2, 2010 and on August 3, 2010 for supply of toilet and kitchen fittings and ceramic tiles of floor and wall for an estimated cost of Rs.74,69,190/-. The plaintiff paid an advance of Rs.47,43,186/- to the defendant by four different cheques during the period from August 3, 2010 till September 21, 2010. The terms of purchase orders indicate that the plaintiff will pay an advance of 25% and inspect the materials by engaging an inspection agency – M/s. TUV Rheinland at the premises mentioned by the defendant and thereafter balance payment will be made by the plaintiff and the materials will be dispatched by the defendant.

3. The defendant encashed four cheques issued by the plaintiff for total amount of Rs.47,43, 186/-. It is alleged that the defendant failed to offer inspection of the materials to the plaintiff and thereby failed to dispatch materials as per terms of contract. Ultimately on November 4, 2011 the plaintiff cancelled the aforesaid two purchase orders issued in favour of the defendant and demanded refund of the advance money to the tune of Rs.47,43,186/- along with interest @18% per annum. It is further alleged that the defendant raised frivolous pleas for not offering inspection of the goods to the plaintiff or the agent of the plaintiff and thereby materials could not be delivered or dispatched by the defendant as per the terms of purchase order. The plaintiff has, thus, instituted the present suit praying for decree for Rs.1,08,36,016/- along with interest @18% per annum from February 1, 2014 till realisation of the said amount of money with the following break up;i) Rs.47,43,186/-as advance money paid to the defendant by the plaintiff; ii) Rs.28,45,911/- as interest @18% per annum from October 1, 2010 to January 31, 2014; iii) Rs.7,46,919/- as loss of business suffered by the plaintiff @10% of the value of purchase order and; iv) 4. Rs.25 lakh as loss of goodwill and reputation of the plaintiff. The defendant has contested the suit by filing the written statement wherein the defendant has denied and disputed the allegations made by the plaintiff. According to the defendant, the suit is barred by limitation. It is clarified by the defendant that Ms. Sunita Bajaj, wife of Mr. Pushpraj Bajaj is the proprietor of “JLB Associates”.. The specific case made out by the defendant is that the plaintiff issued two purchase orders in favour of the defendant on August 2,2010 and August 3, 2010 for supply of toilet and kitchen fittings and for supply of ceramic wall, floor tiles of diverse shapes, sizes and colour for joint venture project of the plaintiff in Gabon, Central Africa. The total value of both the purchase orders is Rs.74,69,190/-. The terms of purchase order indicate that the plaintiff will pay an advance of 25% of the value of the goods to be supplied by the defendant and the defendant will offer inspection of the goods to the agent of the plaintiff at the venue to be selected by the defendant. The defendant received a sum of Rs.47,43,186/- as an advance from the plaintiff by four different cheques during the period from August 2, 2010 to September 21, 2010. It is alleged that the plaintiff failed to inspect the goods in the factory site in Gujrat in spite of repeated request from the end of the defendant.

5. The further specific case made out by the defendant is that on August 27, 2010 there was a meeting between the plaintiff and the defendant, wherein it was decided that the defendant will transport the goods to Kolkata for inspection of the plaintiff on full payment of balance amount of Rs.27,26,004/-. The fact of shifting of venue of inspection from Gujarat to Kolkata on payment of balance amount of money by the plaintiff was communicated by the defendant to the plaintiff by an e-mail along with an attachment of letter dated September 1, 2010. The defendant also sent several e-mails to the plaintiff reminding the plaintiff to inspect the goods in Kolkata after making payment of the balance amount of Rs.27,26,004/-, but the plaintiff did not respod to those e-mails. Without taking any step to pay balance amount of Rs.27,26,004/- and without making inspection of the goods, the plaintiff cancelled the purchase orders by issuing one letter on November 4, 2011. The defendant suffered huge financial loss as the defendant paid the entire amount of advance money received from the plaintiff to the vendor for supply of goods. According to the defendant, the suit is liable to be dismissed with costs.

6. On the above pleadings the following issues are framed for proper and effective adjudication of the disputes involved in the suit: ISSUES i) Is the suit maintainable in its present form and in law ?. ii) Has the plaintiff violated the terms and conditions of the purchase order for supply of materials as mentioned in the said orders dated August 2, 2010 and August 3, 2010?. iii) Has the defendant violated the terms and conditions of purchase order dated August 2, 2010 and August 3, 2010?.

7. iv) Is the plaintiff entitled to get the decree as prayed for?. v) Is the plaintiff entitled to get any other reliefs ?. Issue No.( i ): Mr. Rishav Banerjee, learned Counsel appearing on behalf of the defendant, contends that the present suit is barred by limitation. He refers to Article 113 of the Limitation Act, 1963 to urge that the suit was not instituted by the plaintiff within a period of three years from the date when the right to sue accrued. On the other hand, Mr. Arik Banerjee, learned Counsel assisted by Mr. Chayan Gupta, learned Counsel representing the plaintiff, contends that the contract between the plaintiff and the defendant was cancelled by issuing a letter on November 4, 2011 and thereafter the plaintiff issued several reminders to the defendant for refund of advance money. It appears from paragraph 21 of the plaint that the plaintiff issued such reminders to the defendant on March 12, 2012, April 3, 2012, February 2, 2012 and July 3, 2012 and thereafter the plaintiff instituted the present suit on March 13, 2014. Since the cause of action for instituting the present suit arose on July 3, 2012 when the last reminder was given to the plaintiff to the defendant for realisation of advance money after cancellation of contract, I cannot persuade myself to hold that the present suit is barred under Article 113 of the Limitation Act as contended on behalf of the defendant. No argument is advanced on behalf of the defendant to the effect that the suit is bad for non-joinder of parties or that the plaintiff has no cause of action in filing the instant suit or that this Court has no jurisdiction to entertain and try the instant suit, though such pleas are taken by the defendant in the written statement. Accordingly, the issue no.(i) is decided in favour of the plaintiff.

8. Issue Nos.( ii ) and ( iii): Both these issues are inter-connected and as such these are taken up together for convenience of discussion. There is no dispute that the plaintiff issued two purchase orders in favour of the defendant on August 2, 2010 and on August 3, 2010 for supply of toilet and kitchen fittings and fixtures for Gabon housing project and for supply of ceramic tiles of floor and wall for Gabon housing project at the total cost of Rs.74,69,190/-. These two purchase orders are marked Exhibit-B and Exhibit-F respectively. It is also not disputed that the plaintiff issued four different cheques in favour of the defendant for total sum of Rs.47,43,186/- during 2010 to September 20, 2010. Money the period from August 3, receipts showing payment of Rs.47,43,186/- to the defendant by the plaintiff are marked Exhibit-C, Exhibit-D, Exhibit-G and Exhibit-H respectively. It is established from the documents marked Exhibit-I series that the defendant has received Rs.47,43,186/- by encashment of four cheques issued in favour of the defendant by the plaintiff for supply of materials for the housing project in Gabon. It appears from the terms and conditions of two purchase orders (Exhibit-B and Exhibit-F) that the plaintiff will pay 25% of advance money in favour of the defendant along with the purchase order and the goods will be inspected by an inspection agency – M/s. Tuv Rheinland prior to despatch at the venue mentioned by the defendant. It further appears from the terms and conditions of the said purchase orders (Exhibit-B and Exhibit-F) that the defendant will dispatch materials after packing to make the same ready for shipment on payment of balance amount of money after inspection by the agent of the plaintiff. Let us now scan the evidence on record to find out whether the said terms and conditions were followed by the plaintiff and the defendant.

9. One Parashar Basu, Managing Director of the plaintiff company is examined as witness on behalf of the plaintiff. The consistent evidence by the witness, Parashar Basu is that the defendant did not offer inspection of the goods at any material point of time as per terms and conditions of purchase order. The reply to question no.168, question no.177, question no.180 and question no.181 given by the witness, Parashar Basu during cross-examination indicates that the defendant insisted on full payment before making arrangement for inspection of the goods. The reply to question No.178 and question No.214 given by the witness, Parasar Basu, during cross-examination indicates that the defendant did not supply the materials and insisted on inspection of the goods in Gujarat after making full payment of the balance amount of money. The witness, Parasar Basu, has tried to establish before the Court by giving evidence that the defendant did not offer inspection of the goods as per the terms and conditions of the purchase order, that the defendant insisted on full payment of balance amount of money and that the defendant insisted on inspection of the goods in Gujarat. 10 One Pushpraj Bajaj, the husband of the proprietor of ‘JLB Associates’ is examined as witness on behalf of the defendant. One Priya Ghangas, is also examined as witness on behalf of the defendant. It transpires from the evidence of the witness, Pushpraj Bajaj that the defendant offered inspection of the goods in the factory site at Gujarat, but the plaintiff insisted on shifting of the goods from Gujarat to Kolkata for inspection. The consistent evidence of the witness, Pushpraj Bajaj, is that there was a meeting between the plaintiff and the defendant on August 27, 2010 in the office of the plaintiff whereby the terms and conditions of the purchase order were modified to the extent that the goods would be inspected in Kolkata and the defendant would shift the goods from Gujarat to Kolkata on full payment of balance amount of money. The witness, Pushpraj Bajaj, had categorically replied to Q.128 that the minutes of the meeting held on August 27, 2010 were not recorded. The witness, Priya Ghangas, claims that she was present in the meeting held on August 27, 2010 wherein the terms and conditions of the original purchase order were modified for inspection of the goods in Kolkata on payment of balance amount of money. The witness, Priya Ghangas, claimed that she was appointed as Marketing Consultant by the plaintiff company in the month of June 2010, but she has failed to produce any document like appointment letter or print-out of email communicated to her by the plaintiff company to establish that she was appointed as Marketing Consultant by the plaintiff company. On reply to the question no.34 this witness has specifically stated that the modified terms and conditions of purchase order were not documented anywhere as the same was done on good faith. In the absence of production of reliable documentary evidence to establish that the witness, Priya Ghangas, was appointed as Marketing Consultant by the plaintiff company in the month of June 2010, I am unable to give much credence to the testimony of the said witness, so far as her evidence with regard to the meeting of August 27, 2010 is concerned.

11. It appears from the document marked Ext. 2, that one email along with one attachment was sent to the plaintiff by the defendant on September 1, 2010. It appears from the print-out of the said email and attachment [Ext. 2]. that on September 1, 2010 the defendant communicated to the plaintiff about the meeting held on August 27, 2010 in the office of the plaintiff, where it was decided that the goods would be dispatched from the respective factories to Kolkata for inspection after full payment of balance amount of money. No evidence is forthcoming before the Court to show that the plaintiff responded to the said email dated September 1, 2010. The document marked Ext. 3 further indicates that the defendant again sent one letter dated November 16, 2010 to the plaintiff through email, by which the defendant called upon the plaintiff to make full payment of balance amount of money by November 19, 2010 to avail the discount offered by the defendant for supply of the said goods. In the absence of any minutes of the meeting held on August 27, 2010 between the defendant and the plaintiff, I cannot persuade myself to hold on the basis of email dated September 1, 2010 [Ext. 2]. that there was consensus between the plaintiff and the defendant for modification of the original terms and conditions of the purchase orders dated August 2, 2010 and August 3, 2010 [Exts. B and F]. to the effect that the goods would be shifted by the defendant from the respective factory sites to Kolkata for inspection of the plaintiff on full payment of balance amount of money. The fact of payment of 35% of the total valuation of the goods as advance by the plaintiff to the defendant in violation of the terms and conditions of the purchase orders cannot lend support to the case of the defendant that the terms and conditions of the purchase orders dated August 2, 2010 and August 3, 2010 were modified on August 27, 2010 with consent of both parties. Had there been any consensus between the plaintiff and the defendant with regard to modification of terms and conditions of the purchase orders, the minutes of the meeting would have been recorded with signature of the representatives of the plaintiff and the defendant.

12. It appears from the document marked Ext. M that the plaintiff cancelled two purchase orders issued on August 2, 2010 and August 3, 2010 as the goods were not supplied by the defendant. By the said letter dated November 4, 2011 [Ext. M]., the plaintiff called upon the defendant to refund advance money along with interest at the rate of 18% per annum. There were some correspondences between the plaintiff and the defendant on January 9, 2010 [Ext. K]. and on September 18, 2010 [Ext. L].. By the letter dated January 9, 2010 [Ext. K]. the plaintiff called upon the defendant to supply proper tax invoice with VAT details for making further payment. The subsequent letter dated September 18, 2010 [Ext. L]. goes to establish that the plaintiff insisted on supply of VAT registration number of the defendant for the purpose of making further payment. No correspondence from the end of the defendant in this regard is forthcoming before the Court. The evidence on record indicates that there was vague attempt on the part of the defendant to establish that the defendant offered inspection of the goods at the factory site in Gujarat and the plaintiff did not avail of the said opportunity. I have already observed that the modification of terms and conditions of the original purchase orders dated August 2, 2010 and August 3, 2010, as sought to be established by the defendant, has not been proved as there was no consensus between the plaintiff and the defendant on the alleged modified terms and conditions of the purchase orders on the basis of the alleged meeting held on August 27, 2010. The logical inference of my above observation is that the plaintiff has violated the terms and conditions of the original purchase orders dated August 2, 2010 and August 3, 2010 [Exts. B and F]. by making payment in excess of 25% of the advance money and by not adhering inspection of the goods by engaging the agent in the factory site in Gujarat. Similarly, the defendant has violated the terms and conditions of the purchase orders dated August 2, 2010 and August 3, 2010 [Exts. B and F]. by offering inspection of the goods in Kolkata on full payment of balance amount of advance money. Accordingly both the issues No.(ii) & (iii) are decided in the affirmative.

13. Both the issue nos. (iv) and (v) are inter-related and as such these are taken up together for bravity of discussion. The plaintiff has prayed for realisation of advance money paid to the defendant during the period from August 2, 2010 to September 20, 2010 along with interest at the rate of 18% per annum and damage for loss of business and loss of goodwill and reputation. On the other hand, the defendant has tried to make out a case that the defendant has also suffered damage for loss of business and the entire amount of advance money received by the defendant was paid to the vendors for supply of goods to the plaintiff. Let us now scan the evidence to find out the extent of damage suffered by the plaintiff and the extent of damage suffered by the defendant.

14. It appears from the documents marked Ext. ‘O’, Ext. ‘P ‘ , Ext. ‘Q ‘ that the plaintiff has produced some invoices and bills to esltablish that the plaintiffs suffered damage by purchasing materials and booking shipment for carrying goods from India to Gabon. These documents do not establish that the plaintiff has actually made any payment and thereby incurred an expenditure by purchase of any material or by booking of shipment for shifting of the goods from India to Gabon. I am unable to persuade myself to hold on the basis of the said documents that the plaintiff suffered any damage or loss of business or loss of reputation for non supply of materials by the defendant to the plaintiff on the basis of the purchase orders dated August 2, 2010 and August 3, 2010 (Ext. B and Ext. F). On the other hand, the document marked Ext. 4 indicates that the housing project undertaken by the plaintiff came to a stand-still since April 2010 and as such the question of suffering damage or loss of business or loss of reputation for non supply of the goods by the defendant to the plaintiff as per purchase order dated August 2, 2010 and August 3, 2010 does not arise at all.

15. The documents marked Ext. 1 is printout of e-mail dated August 9, 2010 and printout of e-mail dated August 18, 2010. It appears from the print out of the said e-mails and the printout of the attachment of the said e-mails (Ext.

1) that the defendant placed order with M/s. GCL (India) Private Limited for supply of toilet and kitchen fittings and fixtures and for supply of tiles for which the defendant paid Rs.5 lakh to the vendor M/s. GCL (India) Private Limited by issuing one cheque bearing No.213304 dated August 18, 2010 drawn on South India Bank Limited. In view of such evidence adduced by the defendant, I am of the opinion that the defendant incurred loss of Rs.5 lakh which was paid by the defendant to the vendor M/s. GCL (India) Private Limited by issuing cheque in favour of the vendor on August 18, 2010. In my view, the defendant is not entitled to return the said amount of Rs.5 lakh to the plaintiff, but the defendant is bound to pay the balance amount of advance money to the plaintiff along with interest @8% per annum from the date of cancellation of the purchase orders till the date of the realisation of the amount. In view of my above findings, the plaintiff is entitled to realise from the defendant a sum of Rs.42,43,186/- along with interest @8% per annum from November 4, 2011 till the date of realisation of the said amount from the defendant. Both the issues No.(iv) and (v) are, thus, decided in part in favour of the plaintiff.

16. The plaintiff, thus do get a decree against the defendant for Rs.42,43,186/- along with interest @8% per annum for the period from November 4, 2011 till the date of realisation of the decretal dues by the plaintiff. The department is directed to draw up the decree expeditiously. (R.K.BAG,J.) GH/SP2/kb/snn


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