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2019 DIGILAW 267 (CAL)

SONEKO MARKETING PRIVATE LIMITED v. CORE MINERALS

2019-02-26

SHEKHAR B SARAF

body2019
JUDGMENT : SHEKHAR B SARAF, J. 1. The plaintiff is a company incorporated under the Companies Act, 1956, with its registered office at 107, Stephen House, 4E, B.B.D. Bag, 6th floor, Kolkata- 700 001. It is engaged in the business of supply and export of minerals, including iron ore fines. The defendant is a partnership firm and a member of the Archean Group of Chennai, engaged in the supply of various minerals, including iron ore fines, with its registered office in Odisha. The plaintiff had been purchasing iron ore fines since 2009 from various suppliers, including the defendant, for exporting the same. It is alleged by the plaintiff that it had an oral agreement with the defendant whereby the plaintiff would make advance payments to the defendant in exchange for the supply of the materials at the prevailing market rates. The said agreement was finalized on 16th December2010 at the plaintiff's office. 2. The plaintiff claims to have made a payment of 1,36,39,520/- on various dates by RTGS, which was received by the defendant. After receiving such payment, the defendant supplied material worth 82,82,604/- between December 2010 and February 2012. Thereafter, the defendant did not supply the due material worth 53,56,916/-. Pursuant to this, it was agreed between the plaintiff and the defendant that the balance amount would be repaid to the plaintiff by the defendant. However, the plaintiff has alleged that such payment was never made and this sum is still due. The plaintiff claims to have requested for the release of the amount due on various occasions, including a letter sent on 7th May 2013, which requests for the sum payable along with 18% interest p.a. The defendant sent an acknowledgement on 9th July 2013 that 53,56,916/- was outstanding in their books as on 31st March 2013. On 14th January 2016, the plaintiff again requested the defendant to pay the outstanding amount along with interest and received a reply from the defendant on 19th March 2016 wherein the defendant acknowledged the amount due and expressed willingness to pay. The plaintiff's advocate replied to this letter on 16th May 2016, claiming the sum along with interest at 18% p.a. The plaintiff claims that this letter was received by the defendant on 21st May 2016, but the defendant did not pay the remaining amount. The plaintiff's advocate replied to this letter on 16th May 2016, claiming the sum along with interest at 18% p.a. The plaintiff claims that this letter was received by the defendant on 21st May 2016, but the defendant did not pay the remaining amount. The plaintiff has, thus, instituted this suit against the defendant praying for a decree for a sum of 96,96,017.96/-, which includes the principal sum due and interest at the rate of 18% p.a. calculated from 3rd February 2012 to 31st August 2016. The plaintiff has also prayed for further interest pendente lite and from the date of decree to the date of payment. 3. The report of the Deputy Registrar (Court and Judicial), dated 18th December 2017, revealed that the defendant had entered appearance through Advocate Sarada Hariharan. However, the Deputy Registrar certified on 10th January 2018 that no written statement had been filed by the defendant until that date. Thus, by an order of this court, dated 6th February 2018, the matter was fixed for hearing as 'Undefended Suit'. 4. The sole point for consideration before this Court is whether the plaintiff is entitled to get the decree prayed for. 5. Mr. Naresh Kumar Kothari, one of the directors of the plaintiff company, has been examined as a witness on behalf of the plaintiff. It appears from the board resolution of a meeting held on the 11th June 2018 that Mr. Kothari has been duly authorized by the Board of Directors of the plaintiff company to give evidence before this Court for and on the behalf of the plaintiff company. The board resolution has been tendered and marked as Exhibit A. It transpires from Exhibit B-1 that the plaintiff placed an order with the defendant for the supply of iron ore fines on 15th December, 2010 for the supply of 5000 MT of iron ore at the rate of 1400/ MT+ sales tax. The witness has deposed that the defendant delivered a part of this order and more than 50 lakhs is outstanding. He has claimed that the plaintiff deputed a transporter to deliver goods from the defendant and the same appears from the documents marked collectively as Exhibit C-1, which are the sales tax declarations required for the movement of goods from one state to another. 6. He has claimed that the plaintiff deputed a transporter to deliver goods from the defendant and the same appears from the documents marked collectively as Exhibit C-1, which are the sales tax declarations required for the movement of goods from one state to another. 6. It appears from the ledger account of Core Minerals, marked as Exhibit D-1, that the amount due to the plaintiff on 7th May 2013 was a sum of 53,56,916/-. The witness has stated that the plaintiff company demanded payment of the outstanding balance on several occasions and the defendant also acknowledged that the aforesaid sum was due to the plaintiff. This appears from a document dated 9th July 2013 sent by the defendant, confirming that, as on 31st March 2013, their books of accounts showed the aforesaid sum as outstanding to the plaintiff. The document has been marked as Exhibit E-1. The witness claimed that the plaintiff has not received the outstanding balance, in full or part. He stated that the amount was also claimed later through a letter dated 14th January 2016, which was duly delivered to the defendant. This letter has been marked as Exhibit F-1. 7. The witness stated that the defendant company sent a reply through a letter dated 19th March 2016, wherein it was acknowledged that the sum of 53,56,916/- was still due to the plaintiff and the defendant company also expressed willingness to pay. This acknowledgement letter has been marked as Exhibit G-1. Lastly, the witness has stated that a letter was written by the plaintiff company's lawyer to the defendant company on 16th May 2016, demanding 94,98,639.27 on the plaintiff's behalf and the break-up is as follows: 53,56,916/- as principal amount and 41,31,723.27/- as interest. The letter and the speed post receipt of its delivery have been marked collectively as Exhibit H-1. 8. It has been established from the evidence on record that the defendant company was to supply 5000 MT of iron ore fines to the plaintiff after advance payment for the same was made. The plaintiff company paid 1,36,39,520/- to the defendant, but received iron ore fines only worth 82,82,604/-, thus, 53,56,916/- is still outstanding. The plaintiff sent letters to the defendant, demanding this sum of money along with interest, but the defendant never repaid the sum. The plaintiff company paid 1,36,39,520/- to the defendant, but received iron ore fines only worth 82,82,604/-, thus, 53,56,916/- is still outstanding. The plaintiff sent letters to the defendant, demanding this sum of money along with interest, but the defendant never repaid the sum. The defendant company first acknowledged the outstanding balance of 53,56,916 owed to the plaintiff in a letter dated 9th July 2013. 9. A second acknowledgement of the outstanding amount was made on 19th March 2016 by the defendant company in writing and signed by an authorized signatory. Therefore, a fresh period of limitation started running from 19th March 2016 as per Section 18 of the Limitation Act, 1963 and the plaintiff's case is well within the limitation period. The plaintiff's letters to the defendant demand the principal sum along with interest, however, no date from when the interest shall be calculated has been mentioned. Therefore, I do not find any basis for the calculation of interest from 3rd February 2012 at the rate of 18% p.a and, as such, the interest will be calculated from 9th July, 2013 at the rate of 12%. 10. The plaintiff has prayed for 94,98,639.27 - 53,56,916/- being the principal amount and 41,31,723.27/- being the interest (calculated from 3rd February 2012 to 31st August 2016 at the rate of 18% p.a.). In my view, the plaintiff is entitled to get an ex parte decree against the defendant for the principal sum of 53,56,916/- along with interest at the rate of 12% from 9th July, 2013 till the date of payment. The department is directed to draw up the decree expeditiously.