UIC Industries Ltd. vs Annavaram Concrete Pvt. Ltd.

Sanjib Banerjee, J.—The Court: The claim in the suit is on account of balance price of goods sold and delivered, interest for previous delayed payments and interest on the unpaid amount. The particulars as made out at paragraph 21 of the later application reveal that a sum of Rs. 19,98,644/- is due on account of principal and the balance of the total claim of Rs. 32,40,257.76 is on account of interest.

G.A. No. 3046 of 2008 is the plaintiff''s principal application of a kind of ad-interim decree that has become fashionable in this Court. A money claim is made accompanied by an application for all properties of the hapless defendant to be bound by orders of Court. In this case, the order dated September 15, 2008, passed at the initial stage noticed that the defendant had not appeared despite service.

G.A. No. 53 of 2009 is an application for judgment on admission on several documents which have been appended to the petition.

On G.A. No. 3046 of 2008, an order was made in terms of prayer (b) of that application that restrained the defendant from disposing of, encumbering or dealing with any of its assets or properties in any manner whatsoever. The assets or properties have not been attempted to be described in the body of the petition. It was an omnibus order that was sought and the plaintiff has enjoyed it for a considerable period. Upon the defendant appearing on the returnable date, a prayer was made for vacating the blanket order of injunction in terms of prayer (b). The subsequent order of September 26, 2008 recorded that the continuing injunction in terms of prayer (b) would not prevent the defendant from carrying on business in the usual course.

The defendant is not represented even at the second call. Copies of affidavits appear to have been forwarded to the plaintiff but no affidavit-in-opposition has been filed in Court in either case.

In the second application, G.A. No. 53 of 2009, the plaintiff says that there is an unequivocal admission as to the rate of interest that would be paid by the defendant to the plaintiff that is evident from a writing of February 14, 2007. If the writing is authentic, as it must be considered to be in the absence of the defendant, it records that the defendant would pay interest at the rate of 12% for delay in payment.

The second document that the plaintiff refers to is a sales-tax declaration form that appears at page 35 of G.A. No. 53 of 2009. On the reverse of the form, bill Nos. 195, 199 and 234 are referred to and reveal the same amounts as have been indicated at paragraph 21 of the petition. The plaintiff next refers to a letter at page 37 of G.A. No. 53 of 2009 by which the defendant admitted a credit balance in favour of the plaintiff to the tune of Rs. 4,48,836/- but claimed that due to non-supply of material in time, the defendant was adjusting such amount against the alleged losses suffered by the defendant.

In addition, the plaintiff relies on the ledger accounts for the period April 1, 2007 to March 31, 2008. The plaintiff refers to the entries at pages 47 and 48 of G.A. No. 53 of 2009 that reflect the three bills and the exact amounts as stated at paragraph 21 of the petition. The plaintiff says that since the rate of interest is admitted, the quantum reflected by the three bills is admitted and there is no plausible reason that has been proffered for the defendant not making payment to the plaintiff, the plaintiff is entitled to judgment on the basis of the admission reflected in the documents.

In support of such contention, the plaintiff cites a judgment reported at (2000) 7 SCC 120 and relies on paragraphs 12, 13 and 14 thereof that captures the essence of the rule embodied in Order 12 Rule 6 of the Code of Civil Procedure.

This plaintiff is not entitled to any order for the following reasons:

To begin with, an order in the nature of attachment before judgment is not one which is made for the asking. The two considerations that weigh with Court before passing such high order on a simple money claim are the quality of the claim and the conduct of the defendant. If the plaintiff demonstrates the unimpeachable quality of its claim and, further, is able to show that the conduct of the defendant is such that the defendant would leave the plaintiff without effective relief upon the decree being passed, an order in the nature of attachment before judgment may be made. The plaintiff here has not been able to demonstrate that it has an unimpeachable claim to the extent that has been made. No submission has been made as to the conduct of the defendant in either secreting its assets or removing its goods beyond jurisdiction or otherwise taking steps which would be consistent with the plaintiff''s apprehension that even if the decree were to be made, the plaintiff would not be able to implement the same.

As to the quality of the plaintiff''s claim, there is only one head which has to be taken seriously at this stage. The claim on account of interest for the previous delayed payment and the claim on account of interest in respect of the principal component of the claim have to await trial. Even if it is assumed that the letter dated February 14, 2007 admitted that the defendant was liable to pay interest at the rate of 12% per annum, the letter does not indicate the figure on which interest at such rate would operate. Further, notwithstanding the plaintiff relying on the purported admission contained in the ledger for the period April 1, 2007 to March 31, 2008, there is a subsequent letter on record (at page 37 of G.A. No. 53 of 2009) that reveals that the defendant has a counter claim or has attempted to set off the plaintiff''s dues against its claim in damages. The letter of April 10, 2008 has been issued after the period covered by the ledger.

It cannot be said on the basis of the material that the plaintiff has brought that an unimpeachable claim, even in support of the three bills bearing Nos. 195, 199 and 234, has been made out.

Since it is the quality of the plaintiff''s claim that is doubted, a high order in the nature of attachment before judgment can not be made in favour of the plaintiff. G.A. No. 3046 of 2008 is dismissed, without any order as to costs. The interim order subsisting is vacated with immediate effect.

Notwithstanding the plaintiff having cited several documents from which it appears that the principal amount may have remained unpaid, the document of April 10, 2008, which is a pre-suit document, demonstrates that the defendant had a counter claim against the plaintiff. Even though the admission in the sales-tax declaration form and the ledger accounts appears to be clear and unequivocal, an admission of such nature can subsequently be explained away. It is evident from a pre-suit document that notwithstanding the initial admission of the amount by the defendant in respect of the three bills, the defendant had set off the entirety of the amount then lying to the credit of the plaintiff on account of losses allegedly suffered by the defendant.

In view of the subsequent detraction by the defendant from the apparent admission made by it on the plaintiff''s principal claim earlier, the plaintiff is not entitled to judgment on admission at this stage.

G.A. No. 53 of 2009 is dismissed without any order as to costs.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.