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2023 DIGILAW 691 (CAL)

Mascot Petrochem Pvt. Ltd. v. SCIDPL & VE (JV)

2023-05-03

KRISHNA RAO

body2023
JUDGMENT : (Krishna Rao, J.) : 1. The plaintiff has filed the present notice of motion under Order XIII-A of the Code of Civil Procedure, 1908 for summary judgment. 2. The plaintiff is engaged in the business of trading of “bitumen” and allied products. 3. The defendant nos. 3 to 5 are the Directors of defendant no. 1 and defendant no. 2 is a Joint-Venture Establishment floated at the instance of the respondent no. 3 and is a sister concern of the respondent no.1. 4. The plaintiff was approached by the defendant no. 1 for supply of Blown Bitumen Grade 10/20 (Mastic), Bitumen Grade VG 30 (Bulk) and CRMB 55 (Bulk) at their site. The defendant no. 1 regularly availed supply of bitumen from the plaintiff without any complaint. 5. The defendant no. 1 also got introduced the defendant no. 2 to the plaintiff as the defendant no. 2 was also in requirement of “bitumen” from time to time and accordingly the plaintiff had supplied required bitumen to the defendants. 6. No formal agreement was entered into by and between the parties and based on the assurances and promises made by the defendants, plaintiff had duly supplied the required bitumen at the site of the defendants and the same was duly utilized by the defendants without any protest or demur. 7. The plaintiff had supplied “bitumen” to the defendant no. 1 from 5th September, 2014 to 31st March, 2015 and to the defendant no. 2 from 4th September, 2014 to 6th April, 2015. On supply of bitumen, the plaintiff has raised proforma invoices against the defendants. 8. The defendants have made intermittent payments against the supplies effected by the plaintiff. After acknowledgement of part payment an amount of Rs. 1,46,23,246/-was found due in the account of defendant no. 1 and an amount of Rs. 96,74,815/-was found due in the account of defendant no. 2. 9. The plaintiff had several times requested the defendants for payments but the defendants have not made the same. On negotiation between the parties on 19th September, 2016, a joint declaration was entered between the plaintiff and the defendant no. 2 wherein defendant no. 2 had agreed that he will pay Rs. 7,38,144/-to the plaintiff by October, 2016. It was further mutually agreed that the amount of Rs. 72,47,567/-which is due to be paid by the defendant no. On negotiation between the parties on 19th September, 2016, a joint declaration was entered between the plaintiff and the defendant no. 2 wherein defendant no. 2 had agreed that he will pay Rs. 7,38,144/-to the plaintiff by October, 2016. It was further mutually agreed that the amount of Rs. 72,47,567/-which is due to be paid by the defendant no. 1 to the plaintiff will be mutually settled at reasonable amount post completion of the defect liability period of the said job. 10. Mr. Vikas Baisya Learned Advocate representing the plaintiff submits that the plaintiff had invoked the provisions of Insolvency and Bankruptcy Code, 2016 in respect of claim and filed an application before the Nation Company Law Tribunal, Kolkata Bench but the said application was dismissed on technical reasons. 11. Mr. Basiya submits that the defendant no. 1 is bound and obliged to pay the principal amount of Rs. 96,74,815/-and interest of Rs. 98,63,112.86/-total amounting to Rs. 1,95,37,927.86/-and defendant no. 2 is liable to pay an amount of Rs. 1,46,23,246/-and interest of Rs. 1,17,80,191.31/-total amounting to Rs. 2,64,03,437.31/-. 12. Mr. Basiya submits that the defendants have admitted the Joint Declaration dated 19th September, 2016 in the written statement and there is no valid defence to contest the suit filed by the plaintiff. 13. Mr. Basiya submits that as the defendants failed to disclose any valid defence for non-payment of admitted dues and thus the plaintiff is entitled to summary judgment. 14. Ms. Hashnuhana Chakraborty, Learned Counsel representing the defendants submits that the defendant no. 2 has paid an amount of Rs. 15,00,000/-to the plaintiff on 3rd October, 2016 vide cheque No. 002251 to the plaintiff. 15. Ms. Chakraborty submits that as per the settlement dated 19th September, 2016, it is categorically mentioned that payment of Rs. 72,47,567/-will be paid by the defendant no. 1 to the plaintiff, subject to mutual settlement at a reasonable amount of post completion of the defects liability period of the job. She submits that unless and until, there is mutual settlement of post completion of defect liability period, no question would arise regarding payment of Rs. 72,47,567/-by the defendant no. 1 to the plaintiff. 16. Ms. Chakraborty submits that the settlement was recorded in the letterhead of the defendant no. 2, which was duly signed by Mr. She submits that unless and until, there is mutual settlement of post completion of defect liability period, no question would arise regarding payment of Rs. 72,47,567/-by the defendant no. 1 to the plaintiff. 16. Ms. Chakraborty submits that the settlement was recorded in the letterhead of the defendant no. 2, which was duly signed by Mr. S. Poddar on behalf of the plaintiff and by putting his signature, the plaintiff endorsed his comment that the figures mentioned therein are subject to verification. 17. Ms. Chakraborty submits that during scrutiny of the bills, submitted by the plaintiff, from time to time it was seen that there was about four discrepancies, namely -(i) short supply, (ii) rate higher than the rates agreed, (iii) rejection/return of goods and (iv) transportation charges. She submits that the defendants repeatedly pointed out these discrepancies to the plaintiff but the plaintiff neither withdrew nor rectified the defective bills. 18. Ms. Chakraborty submits that there is no such admission of obligation in the document relied by the plaintiff and thus discharging such obligation does not and cannot arise. 19. Ms. Chakraborty submits that the plaintiff has filed a single suit against two separate and different legal entities to avoid payment of applicable court fee. 20. Ms. Chakraborty submits that the amount of Rs. 15,00,000/-paid by the defendant no. 2 and not the defendant no. 1 which is established from the bank’s statement of Andhra Bank. 21. Ms. Chakraborty submits that the defendant no. 2 has made payment of Rs. 15,00,000/-but in fact, the defendant no. 2 is entitled to get refund of sum of Rs. 7,61,856/-from the plaintiff. 22. As regard the supply of bitumen by the plaintiff to the defendants have not denied. The settlement between the parties on 19th September, 2016, is also admitted. Only the dispute between the parties in the instant application is with regard to payment of Rs. 72,47,567/-by the defendant no.1 to the plaintiff with regard to the settlement dated 19th September, 2016. 23. The settlement entered between the parties on 19th September, 2016 reads as follows: “Dues from Stone Concern Infrastructure Development (P) Ltd. to Mascot Petrochem Private Ltd. Rs. 7,38,144/-(Rupees Seven Lacs Thirty Eight Thousand One Hundred and Forty Four) will be paid by October, 2016. Dues from SCIDPL & VE (JV) of Soutsol Sita NH60 to Mascot Petrochem(P) Ltd. of Rs. The settlement entered between the parties on 19th September, 2016 reads as follows: “Dues from Stone Concern Infrastructure Development (P) Ltd. to Mascot Petrochem Private Ltd. Rs. 7,38,144/-(Rupees Seven Lacs Thirty Eight Thousand One Hundred and Forty Four) will be paid by October, 2016. Dues from SCIDPL & VE (JV) of Soutsol Sita NH60 to Mascot Petrochem(P) Ltd. of Rs. 72,47,567/-(Rupees Seventy Two Lacs Forty Seven Thousand Five Hundred and Sixty Seven) will be mutually settled at a reasonable amount was completion of the defect liability period of the said job. Dated: 19/9/2019 S.Poddar. Figures subject to verification of A/C statement received today of SCI DPL and VE (JV) and Stone Concern Infrastructure Private Limited.” 24. After entering into the settlement between the parties on 19th September, 2016, the defendant no. 2 had paid Rs. 15,00,000/-on 3rd October, 2016 to the plaintiff though as per settlement, the defendant no. 2 was required to pay Rs. 7,38,144/-. The defence taken by the defendant no. 1 that the defendant no. 2 has mistakenly paid an amount of Rs. 15 lakhs and thus the plaintiff is required to return the extra amount paid by the defendant no. 2. The another defence taken by the defendant no.1 is that as per the settlement the defendant no. 1 is required to pay Rs. 72,47,567/-subject to post completion of defect liability and the plaintiff has not carried out the defect thus the defendant no. 1 is not liable to pay the said amount unless the defect is cured by the plaintiff. 25. In the settlement dated 19th September, 2016, it is categorically mentioned that “will be mutually settled at a reasonable amount post completion of defect liability period of the said job”. In the settlement, it is not mentioned that the defendant no. 1 shall pay the above-mentioned amount after completion of the defects. 26. The defendant no. 2 has paid an amount of Rs. 15 lakh to the plaintiff on 3rd October, 2016 but since then till the filing of written statement, the defendant no. 1 has not raised the claim that the defendant no. 2 has paid excess amount and the said amount is liable to be returned by the plaintiff to the defendant no. 2. Only when the plaintiff has filed the present application, the defendant no. 1 has taken the defence that the said amount was paid only by the defendant no. 1 has not raised the claim that the defendant no. 2 has paid excess amount and the said amount is liable to be returned by the plaintiff to the defendant no. 2. Only when the plaintiff has filed the present application, the defendant no. 1 has taken the defence that the said amount was paid only by the defendant no. 2 and not by the defendant no. 1 and the plaintiff is required to cure the defects only thereafter, the plaintiff is entitled to get the said amount. 27. In paragraph 21 of the present application, the plaintiff has stated as follows: “21. There is no dispute as to the claim of the petitioner. The petitioner and/or their officials were regularly chasing the respondents for effecting balance payment for the supplies effected by the petitioner. It is, at this juncture, all of a sudden, the Respondent No. 2 had written a letter dated 26th August, 2016 to the petitioner, inter alia, raising the issue of faulty materials being supplied by the petitioner resulting in continuous repair and mending of the roads by the Respondent No. 2.” 28. In reply to the said paragraph, the defendants have only taken and evasive denial and have not filed any document to establish that the defendants have informed about the defects to the plaintiff prior to the said notice, the plaintiff and the defendants have entered into a settlement by mentioning about the defect liabilities. Now, the defendants have taken plea that Rs. 15 lakh was paid by the defendant no. 2 and not the defendant no. 1 and the defendant no. 1 is a separate entity but the said defence is not sustainable as since begining both the defendants are corresponding with the plaintiff as single entity and have also entered into the settlement in the letterhead of the defendant no. 2 and the written statement as well as the affidavit-in-opposition in the present application was filed by both the defendants jointly. 29. This Court finds that neither in the written statement nor in the present application, no valid defence has been disclosed by the defendants and on the other hand, the defendants have acted upon the settlement entered between the parties on 19th September, 2016, by paying an amount of Rs. 15 lakhs. 30. 29. This Court finds that neither in the written statement nor in the present application, no valid defence has been disclosed by the defendants and on the other hand, the defendants have acted upon the settlement entered between the parties on 19th September, 2016, by paying an amount of Rs. 15 lakhs. 30. In view of the above, this Court finds that the plaintiff is entitled to get an amount of Rs. 64,85,711/-from the defendant no. 1. Accordingly, the defendant no. 1 is directed to pay Rs. 64,85,711/-to the plaintiff. 31. G.A No. 3 of 2022 and C.S No. 204 of 2019 are thus disposed of. Decree be drawn accordingly.