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Judgment
Manmohan Singh, J.—The plaintiff (counter claim defendant) in the main suit for recovery of amount of Rs. 25,36,654/- alongwith interest claimed the amount from all defendant Nos. 1 to 7 [Counter Claimant(s)], jointly and severally and alleged that defendant Nos. 2 to 7 are the sister concerns of defendant No. 1. While defendant Nos. 2 to 7 including defendant No. 1 are sister concerns only the following firms, the counter claimants herein ("Counter Claimant(s)") preferred counter claims against counter claim defendant ("CC Defendant"):
M/s. K.S. Foods Products, Morena (Counter Claimant No. 1)
M/s. K.S. Oil Private Ltd., Morena (Counter Claimant No. 2)
M/s. K.S. Trading Co., Gwalior (Counter Claimant No. 3)
Originally the suit was filed in the court of Assistant District Judge No. 1 at Guwahati, which was transferred to this Court in view of the order passed by the Apex Court dated 20.04.1992 and upon transfer the present suit number is assigned. At the stage of filing of affidavit in evidence, the plaintiff company had gone into liquidation. Vide order dated 16.10.2006, the court ordered the parties to take steps as required by law to ensure that the plaintiff is represented both for prosecuting and also defending the suit by the liquidator. As per order dated 11.12.2007, the liquidator was served on 18.08.2007 but no one appeared before the court, therefore, the suit was dismissed for non- prosecution.
As far as the counter claim of the defendant being CC No. 504/2007 is concerned, the plaintiff was proceeded against ex parte and the defendants were given time to file their affidavits of examination-in-chief within four weeks from the date of the order i.e. 11.12.2007.
It is submitted by the CC defendant that it placed order on counter claimant No. 2 vide letter No. N-60/1988 dated 10.12.88 exhibited as Ex. CCW1/3 for the supply of the following goods:
Goods Qty. (MT) Rate/Qtl Despatch
Gram Whole 500[5000]qtl] 825.00 Within Jan, 1989 (Best Quality)
Masoor Chanti 600[6000 qtl] 825.00 Within Jan, 1989 (Best Quality)
Moong Whole 600[6000 qtl] 765.00 Within Dec, 1988
(Best Quality)
Moong Chanti 600[6000 qtl] 825.00 Within Feb, 1989 (Best Quality)
The CC defendant also placed the following order on counter claimant No. 1 vide S.O. No. N-60/88 dated 15.2.1989 a copy of which is exhibited as Ex. CCW1/4:
Goods Qty. (MT) Rate/Qtl For months of
Masoor Whole 24,000 qtl 825.00 Feb, 1989 (Best Quality) 740.00 Mar, 1989 Rates thereafter were to be fixed later
CC defendant also placed the following order on counter claimant No. 3 vide S. No. N-60/88 dated 4.3.89, which is exhibited as Ex. CCW1/5:
Goods Qty. (MT) Rate/Qtl Despatch Schedule
Gram Whole 500[5000]qtl] 730.00 Within Mar, 1989 (Best Quality) -do- 500[5000 qtl] To be fixed Within April, 1989 740.00 Mar, 1989
It is submitted that on 21.1.1989, CC Defendant asked counter claimants to furnish security deposit in the form of Bank guarantee to the tune of 5% of total value of the supplies to be made for 1000 MT Gram Whole. In compliance of the said demand, counter claimants furnished security deposit of Rs. 10 lac in the form of Bank guarantee being bank guarantee No. 54/8 issued by the Central Bank of India, Morena, M.P. The said bank guarantee was issued by the Central Bank of India, Morena, for the benefit of M/s. K.S. Oil Pvt. Ltd., Tilak Road, Morena, which is counter claimant No. 2.
The Counter Claimants completed the said contract in all respects by supplying all the contracted stores to CC defendant. In this respect, the CC Defendant accepted all supplies made by Counter Claimants, as per the bills raised by Counter Claimants, without any objection particularly with regard to the time of supply or the rate. CC Defendant not only accepted the goods but also facilitated retirement of some of the hundis and their encashment, and made part payments as per the bills raised.
The Counter Claimants were required to effect delivery of the goods to the Central Warehousing Corporation, Morena (CWC) on behalf of CC Defendant which were then to be despatched as and when the wagons were made available by the Railways for carrying the goods to Gauhati. Counter Claimants duly tendered the goods to the CWC, Morena, which on many occasions refused to accept the goods on the plea of non-availability of space, because of which the delivery at times to Gauhati was delayed. CWC acted as agent of CC Defendant, and Counter Claimants were in no manner responsible for its acts which may have delayed delivery. Counter Claimants tendered the goods to CWC within the period stipulated.
Counter Claimants completed the said contract in all respects by supplying all the contracted stores to CC Defendant, but CC Defendant with mala fide intention invoked and encashed Bank Guarantee issued by Central Bank of India, Morena some time in October, 1989 by raising an illegal and untenable demand of Rs. 24,30,327/-. The said bank guarantee was given by the banker/Central Bank of India who has recovered the amount from Counter Claimant No. 2.
It is averred that the encashment of bank guarantee was illegal, arbitrary and unjustified as CC Defendant had no claim against Counter Claimants and moreover the alleged claim of Rs. 24,30,327/- is bad in law. Therefore, it is prayed that Counter Claimant No. 2 is entitled to refund of the said amount of Rs. 10,00,000/- along with interest at the rate of 18% per annum.
The CC Defendant had failed to release full payments in respect of the bills raised by the three Counter Claimant business concerns and wrongly withheld various amounts without any sufficient cause, justification or any cogent reasons. Moreover, against the various Supply Orders, goods/material supplied by the counter claimants were never accepted by the CC Defendant in full. In respect of despatches made, bills preferred, documents of Hundies etc. having been executed for retirement, the CC Defendants accepted part of the goods varying between 70% to 75% of the entire goods. The bills raised were accompanied by the documents for retirement but CC Defendant did not retire the hundies for the reasons that it did not have funds to take delivery. As a result of this action of CC Defendant, Counter Claimants were left with no other option but to dispose of the goods/stocks in the market, through M/s. Naveen Trading Co., on account and at sole risk and responsibility of the CC Defendant for which the CC Defendant is liable to pay to Counter Claimants.
The counter claimants has supported his case on copies of the Bills, Bank Memos and Hundies, Statements of Accounts, Bills of resale, etc. and letters written by Counter Claimants furnishing all information asked for by CC Defendant and asking for release of goods/making payments/incurring demurrage, etc.
It is alleged that the Counter Claimant No. 1-3 supplied goods to the CC Defendant from time to time, incurred expenses, raised bills, draw Hundies and received payments. CC Defendant failed to retire the documents from the Bank and as such the Hundies were returned by the bank. The amount of Hundies, Bank interest and commission etc. were debited to the account of the CC Defendant and the Counter Claimant Nos. 1-3 sold the said goods on account and at sole risk and responsibility of the CC Defendant, through M/s. Naveen Trading Co., by duly serving notice as required under the Sale of Goods Act. Counter Claimant Nos. 1-3 could realize an amount less than the amount due and as such suffered losses which CC Defendant is liable to pay to Counter Claimant Nos. 1-3. The amount of goods supplied expenses incurred and the Hundies returned including Bank interest, commission and charges were debited to the account of the CC Defendant and payments received and sale proceeds on resale were credited to the account of CC Defendant. The total amount of debits to the account of the CC Defendant in the A/c CC No. 1 for the year ended 31.3.90 comes to Rs. 48,35,685.88 and the total of credits comes to Rs. 47,53,685.70 and as such the CC Defendant No. 1 is entitled to and CC Defendant is liable to pay an amount of Rs. 82,000.18.
The total amount of debits to the account of CC Defendant in the A/c of CC No. 2 for the year ended 31.3.91 for the value of goods sold, expenses incurred and Hundies returned comes to Rs. 72,37,877.20 and the total of credits for payments received and amount realized on resale comes to Rs. 63,83,981/-. The Counter Claimant No. 2 is entitled to and claims a sum of Rs. 8,53,896.20 which CC Defendant is liable to pay.
The total amount of debits to the account of CC Defendant in the A/c of CC No. 3 for the year ended 31.3.89 comes to Rs. 58,14,351/- and total of credits comes to Rs. 57,21,166/-. Accordingly, Counter Claimant No. 3 is entitled to and claims a sum of Rs. 93,185/- which CC Defendant is liable to pay.
Apart from the above, Counter Claimant No. 2 had furnished a Bank Guarantee being Bank Guarantee No. 54/8 issued by Central Bank of India, Morena (MP) for a sum of Rs. 10,00,000/- in favour of CC Defendant. The said Bank Guarantee was illegally and wrongfully invoked and encashed by CC Defendant and CC Defendant received the said sum of Rs. 10,00,000/- from the Bank which Counter Claimant No. 2 had to pay the Bank. Accordingly, Counter Claimant No. 2 is entitled to receive a total sum of Rs. 18,53,896.20 from Counter Claim Defendant, i.e. Rs. 10,00,000/- and Rs. 8,53,896.20.
It is alleged that CC Defendant is liable to pay a total sum of Rs. 20,29,081.38 to Counter Claimants as claimed by Counter Claimants.
i M/s. K.S. Food Products, Counter Claimant No.1 Rs. 82,000.18
ii M/s. K.S. Oils Pvt. Ltd., Counter Claimant No.2 (Rs.10,00,000 + Rs.8,53,896.20) Rs. 18,53,896.00 iii M/s. K.S. Trading Co., Counter Claimant No. 3 Rs. 93,185.00
--------------------- Rs. 20,29,081.38 ----------------------
The Counter claimants also claimed interest @ 18% per annum which comes to Rs. 7,07,918.62 as follows:
i) Interest on 82,000.18 from 1.4.89 to date of filing of Counter Claim Rs. 32,980.00 ii) Interest on Rs.8,53,896.20 from 1.4.89 to the date of filing of Counter claim Rs. 3,37,496.47 iii) Interest on Rs.10,00,000.0 from 1.10.89 to the date of filing of Counter Claim Rs. 3,00,000.00 iv) Interest on Rs.93,185/- from 1.4.89 to the date of filing of Counter Claim Rs. 37,442.15 --------------------- Rs. 7,07,918.62 ---------------------
Thus, the total amount claimed by the C Claimants is a sum of Rs. 27,37,000/-, i.e. Rs. 20,29,081.38 + Rs. 7,07,918.62 from CC Defendant inclusive of interest till the date of filing of the Counter Claims, in the amounts as mentioned above.
In compliance with the court order, the affidavit of Shri Ashish Bhat on behalf of the counter-claimants/originally defendant Nos. 1 to 3 was filed on 11.04.2008 along with Ex.CCW-1/1 and CCW- 1/2. Another affidavit of Shri Deep Chand along with Ex.CCW-2/1 and CCW-2/2 was also filed on 05.12.2008.
In view of the evidence adduced by the counter-claimants, which has gone unrebutted by the plaintiff, it appears that the counter- claimants have made out a strong case against the counter-claimant defendant/original plaintiff. The counter-claimants/original defendant Nos. 1 to 3 have proved their case as per the averments made in the counter-claims and, therefore, a decree is passed in favour of the counter-claimants/original defendant Nos. 1 to 3 and against the counter- claimant defendant/original plaintiff in the sum of Rs. 27,37,000/- inclusive of interest till the date of filing of the counter-claims. The counter-claimants/original defendant Nos. 1 to 3 are also entitled for pendente lite and future interest @ 9% till the date of realization as well as costs.
The decree be drawn in favour of the counter- claimants/original defendant Nos. 1 to 3 and against the counter-claimant defendant/original plaintiff accordingly.