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2017 DIGILAW 928 (CAL)

Orient Exports (Pvt. ) Ltd. v. Vijay Kr. Singh

2017-11-29

SOUMEN SEN

body2017
JUDGMENT : 1. The Court: The Special Officer has filed a report wherefrom it appears that 32 railway rakes containing fly ash were loaded during the period of August 2017 to 20th November, 2017 along with three indents of the petitioner’s company which however were withdrawn on 1st November, 2017 and 6th November, 2017 respectively by the defendant company and another five indents of various other companies were cancelled between 1st October, 2017 and 13th November, 2017. The defendant company appears to have procured fly ash to the extent of 72349.35 MT. between August 2017 to 20 November, 2017 from the Santaldih Thermal Power Plant. It transpires that the order placed on the defendant is valid up to 31st December, 2018 and the Fly ash were supplied as per the requisition of the plaintiff and as per availability and placement of rakes by rail. It further appears that the defendant company loaded thirty one railway rakes from August 2017 to 20th November, 2017 along with two railway indents of the plaintiff which however were withdrawn on 19th October, 2017 along with one indent of another company on 18th November, 2017. 2. Mr. Jishnu Chowdhury, learned Counsel representing the defendant, submits that the invoices raised by the plaintiff were doctored. The learned Counsel has referred to two invoices which were of February 2017 to argue that the plaintiff has unilaterally changed the quantity and price of the fly ash and the entire agreed amount has not been paid. 3. Mr. Surojit Nath Mitra learned Senior Counsel appearing along with Mr. Sumon Dutt learned Senior Clunsel submits that the quantity and price mentioned in the said invoices were altered since the defendant could not effect supply of the required quantities and in fact had supply lesser quantity. The alterations only reflect the actual quantity supply by the defendant and has since been accepted by the defendant. 4. However, even today the defendant is unable to produce any document to show that contemporaneously they have challenged raising of such invoices or that they have communicated withdrawal of the indent due to reasons beyond their control as it is now sought to be argued that the railway authorities did not provide the adequate number of rakes for which the defendant was unable to supply the materials. 5. The next objection is with regard to the accounts relied upon by the plaintiff. 5. The next objection is with regard to the accounts relied upon by the plaintiff. It is submitted that the defendant at present is holding a sum of Rs.22 lacks approximately towards advance for which admittedly supplies have not been effected and since the defendant is not willing to have any business relationship with the plaintiff anymore inasmuch as the defendant has no rakes available the quantities for which advance payment has been made the defendant is unable to supply and is willing to refund the said sum. Mr. Chowdhury has referred to Section 14 of the Specific Relief Act and submits that even if it is assumed that the present suit is a suit for specific performance the plaintiff at the highest is entitled to damages and not for specific performance. An agreement for sale cannot be specifically enforced. 6. The report filed by the Special Officer shows that the defendant has withdrawn the three indents on 1st November, 2017 and 6th November, 2017 and two railway indents on 19th October, 2017. On the basis of the materials on record and having regard to the submissions made by Mr. Chowdhury admittedly when these indents were withdrawn the defendant was holding a sum of Rs.22 lacks which the defendant claims to be an advance and not yet adjusted or to be adjusted towards future supplies. The defendant was aware that the plaintiff is having a back to back contract and any failure to effect supply would seriously prejudice the plaintiff and would result in cancellation of contract and damages. The said materials are not easily available in the market. Although the defendant sought to raise the point that fly ash cannot be treated as ordinary articles of commerce and no special significance to be attached to the said article this Court is unable to accept the said submission. To the extent the defendant admits Rs.22 lacks as an advance and for which quantities have not been supplied and in absence of any explanation offered today which could pursue the Court to hold that the plaintiff is in breach the defendant is obliged to effect supply as the said articles are not ordinary articles of commerce. The Defendant is directed to effect supplies of the five indents which they have withdrawn by December, 2017. The Defendant is directed to effect supplies of the five indents which they have withdrawn by December, 2017. Since the defendant has categorically stated that the defendant does not continue to have a business relationship with the plaintiff no order is passed with regard to any future supplies. The order is only restricted to the five indents which have been withdrawn by the plaintiff in-spite of having received the advance payment. 7. Affidavit in opposition shall be filed within three weeks from date; reply thereto, if any, by 10th January, 2018. The matter shall appear under the heading ‘Motion Adjourned’ on 15th January, 2018. The report filed by the Special Officer is kept with the record. The Special Officer shall be entitled to a final remuneration of 2000 GMs. to be paid by the plaintiff.