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2011 DIGILAW 1436 (CAL)

STP LTD. v. GROUTECH ENGINEERS PVT. LTD.

2011-11-23

I.P.MUKERJI

body2011
JUDGMENT I.P. MUKERJI, J. 1. This is an application seeking judgment on admission. The sum claimed is Rs.15,14,296/-. This sum represents the principal amount of Rs. 9,80,057/- claimed in the plaint together with interest at the rate of 24% per annum from 21st January, 2009 till 30th April, 2011, amounting to Rs. 5,34,869/-. The sum claimed as interest, in the plaint is Rs. 1,36,617/-, being interest claimed at the same rate for the period 21st January, 2009 till 31st July, 2009. Therefore, the total amount claimed in the plaint as principal sum and the amount on which judgment is sought now, on the basis of admission, are the same. 2. The claim arises out of an agreement dated 8th December, 2008 between the parties. The plaintiff was required to supply water proofing materials of different description and quantity to the defendant. These materials were Tarfelt Fibre Glazed, Shalikote Type-32, Bitumen 30/40 gr, Bitumen 90/15 gr. They were to be supplied in four phases and completed by 2009. There is no dispute that goods were supplied by the plaintiff and were received by the defendant. The invoice raised by the plaintiff was for Rs. 9,80,363/-. 3. The defendant made over a cheque for Rs. 9,80,057/- dated 1st January, 2009 in favour of the plaintiff. The plaintiff on or about 12th January, 2009 presented the cheque for encashment but it was dishonoured on the ground that payment had been stopped by the defendant. 4. Now, it appears that the defendant was procuring these goods to in turn supply them to the Eastern Railway Administration. The plaintiff approached the Public Information Officer of the Eastern Railways under the Right to Information Act. The Public Information Officer sought information from the Divisional Town Engineer, Eastern Railway, Kanchrapara. The latter by his communication dated 18th June, 2009 to the Public Information Officer, inter alia, said that 359 rolls of Tarfelt Fibre were passed by the railways subject to “testing result of recognised institute”. Item No. 6 of the letter stated that substantial amounts had been paid to the defendant. At the time of hearing of this application, it was not disputed by the learned Counsel for the defendant that they had received the above invoice amount from the railways. 5. The defendant has tried to dispute the above claim in paragraph 9 of their Affidavit-in-Opposition. They say that three rolls were short supplied. At the time of hearing of this application, it was not disputed by the learned Counsel for the defendant that they had received the above invoice amount from the railways. 5. The defendant has tried to dispute the above claim in paragraph 9 of their Affidavit-in-Opposition. They say that three rolls were short supplied. They refer to an endorsement at the base of the consignment note issued by the carrier which is annexure ‘A’ to the Affidavit-in-Opposition that only 356 rolls had been received by the railways. They also refer to a letter dated 2nd January, 2009 of the defendant which is Annexure B to the said affidavit that 20% of the fibre glazed, bitumen supplied by the plaintiff had been rejected by the railways. It may be recalled that the cheque was issued by the defendant in favour of the plaintiff on st January, 2009 which was presented by the plaintiff on 12th January, 2009. It was submitted by Mr. Bhattacharya, learned counsel for the defendant that because of this defect they had asked the plaintiff not to encash the cheque. 6. This so called defence of the defendant is very difficult to understand. They have not been able to controvert the assertion that the railways had paid for the goods. Secondly, they have not been able to show any rejection note even for a part of the goods by the railways. The defendant had handed over the entire consideration by issuing a cheque to the plaintiff. 7. Even if the contention of the defendant is taken to be true for the sake of argument, the defect is with regard to a small, almost negligible percentage of the goods. It is with regard to three rolls out of 359 which is less than 1/100th of the quantity supplied. The value of the entire quantity of Tarfelt Fibre Glazed according to the invoice of the plaintiff at page 44 of the application, is, Rs.4,84,650/-. Even if the defective quantity is taken as 1/100th, the total amount deductible would be not more than Rs. 4,846.50. In fact, the exact amount deductible is 3/359 of Rs.4,84,650/- which is Rs.4050/-. 8. Now, according to the paragraph 9 (ii) of the Affidavit-in-Opposition 20% of the 356 rolls were rejected by the railways. After deducting Rs. Even if the defective quantity is taken as 1/100th, the total amount deductible would be not more than Rs. 4,846.50. In fact, the exact amount deductible is 3/359 of Rs.4,84,650/- which is Rs.4050/-. 8. Now, according to the paragraph 9 (ii) of the Affidavit-in-Opposition 20% of the 356 rolls were rejected by the railways. After deducting Rs. 4050/- from Rs.4,84,650, and 20% of the remainder, the total amount deductible cannot be more than Rs.1,00,170/- according to the following calculation: Rs. 4, 84,650/- Less : Rs. 4,050/- Rs.4, 80,600/- AMOUNT DEDUCTIBLE 20% of Rs.4,80,600/- = Rs. 96,120/- Add: Rs. 4, 050/- Rs. 1,00,170/- Hence, only this dispute is relegated to trial in the suit. 9. The rest of the sum is admitted and payable. There is no defence to such claim. Therefore, I pass a judgment for the sum of Rs. 8,79,887/- (Rs. 9,80,057/ -Rs.1,00,170). I grant interest on such sum @ 8% per annum only simple interest from 21st January, 2009 till the date of the decree and @ 12% per annum from the date of decree till realisation. 10. This application is allowed to the above extent. The suit is decreed in part for the above sum. 11. Urgent certified photocopy of this judgment and decree, if applied for, to be provided upon the usual undertaking.