1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No. 56 of 2009 in Summary Suit No. 185 of 2008 TEXSA (INDIA) Ltd. ) a company incorporated ) under the Companies Act, ) 1956 having branch office ) at B-101, Vijay Coop. ) Housing Society Ltd.,Opp. ) Honda Showroom, Link Road ) Malad (West),Mumbai 400064) ..Plaintiff vs. OASIS PROJECTS & SERVICES ) (I) PVT.LTD., a company ) incorporated under the ) Companies Act, 1956 and ) having its Office at 192 ) 6th street, Krishnamachari) Nagar, Valasaravaskkam, ) Chennai 600 087 ) ..Defendant Mr.H.Toor i/b M/s Chitnis and Co. for plaintiff None for respondent Judgment Reserved: 18th July, 2009 Judgment Pronounced on: 20th August,2009 CORAM: S.J.KATHAWALLA J. 20th August, 2009 2 P.C. 1 This summons for judgment is taken out by the plaintiff in the above summary suit seeking an order and decree against the defendant to pay to the plaintiff a sum of Rs.45,46,624.35 together with further interest at the rate of 18% per annum under each of the invoices (including total CST (tax)of 12.5%) issued by plaintiff to defendant from the date of filing of the suit till payment and thereafter at the same contractual rate of 18% per annum until payment and/or realisation. 2 According to the plaintiff, some time in July 2006 the defendant approached them for sale and/or supply by the plaintiff to the defendant of Polyester reinforced waterproofing Membrane. Accordingly the defendant placed upon the plaintiff a purchase order dated 24th July 2006 for 3 25000 sq. M.+ 5% APP 4MM(POlyster reinforced -160 GSM). Under the said purchase order the price agreed to be paid to the plaintiff by the defendant was Rs.143/- SQ.M.+ 4% CST Against C FORM ON F.O.R.BEML KGF BASIS. The delivery period agreed was from 5th August, 2006 to 31st August, 2006 to be supplied in four lots. 3 The defendant on or about 24th July, 2006 duly paid to the plaintiff the requisite 7% advance as agreed under the payment terms set out in the purchase order amounting to Rs.2,60,260/- Thereafter the plaintiff under the said purchase order sold and supplied to the defendant, specified waterproofing membrane under 11 invoices particulars of which are set out in paragraph 4 of the plaint. The plaintiff has stated that the sale and supply of the specified waterproofing membrane by the plaintiff to 4 the defendant commenced from 3rd August, 2006 and was completed on or about 31st October, 2006. The delivery was inadvertently delayed by a short period as a substantial part of specified water proofing membrane which was imported by plaintiff was delayed in carriage by sea and further due to certain clearing and customs hindrances. The containers containing the specified waterproofing membrane imported by plaintiff was inadvertently downloaded by the carriers at Singapore instead of Mumbai and the same was thereafter brought to Mumbai after some delay. 4 It is submitted by the plaintiff that the defendant duly received and consumed the specified waterproofing membrane covered by the said 11 invoices of the total value of Rs.37,18,000/- without raising any dispute in regard to the quality of the specified 5 waterproofing membrane covered under the said invoices. The defendant had at no time offered to return the specified waterproofing membrane covered under the said 11 invoices on the ground of the same being defective or otherwise. However, the defendant except for initial payment of Rs.2,60,260/- failed to pay to the plaintiff the balance amount of Rs.34,57,740/- for specified waterproofing membrane sold and supplied by the plaintiff to the defendant under the said invoices. The defendant more over failed and neglected to provide to the plaintiff the requisite 4% CST (i.e. Central Sales Tax) C form resulting in levy on the plaintiff by CST authorities of additional CST Tax of 8.5% on the basic invoice price. The plaintiff has, as such, incurred liability to CST authorities for total CST Tax at 12.5% (being 4% CST C Form + 8.5% balance CST on the basic invoice price). The plaintiff has submitted that the 6 CST liability is leviable on the plaintiff by CST authorities and the same is defrayable/recoverable from the defendant by the plaintiff. The plaintiff has submitted that the defendant is also due and liable to pay to the plaintiff interest at the rate of 18% p.a. on each invoice amount from the respective due dates of the said invoices under condition for interest at rate of 18% per annum for over due payments stated in each of the said invoices. 5 The plaintiff has submitted that despite repeated request the defendant has failed and neglected to pay to the plaintiff the total consideration amount for specified waterproofing membrane sold and supplied by the defendant to the plaintiff under the said invoices. It is submitted that though the defendant has duly admitted in their letter dated 21st March, 2007 addressed to the 7 plaintiff (Exhibit B-23 to the plaint) that Rs.34,57,740/- [(i.e. Rs.37,18,000 (total invoice amount) minus Rs.2,60,260/- (7% advance paid)] was due and payable by the defendant to the plaintiff for sale and supply by the plaintiff to the defendant of specified waterproofing membrane under the said invoices, the defendant wrongly alleged that Rs.11,86,777/- was deductible out of the said amount of Rs.34,57,740/- The plaintiff has submitted that the admitted amount of Rs. 37,18,000/- by the defendant includes the 4% CST as more particularly set out in the particulars of claim at Exhibit C to the plaint. The plaintiff submitted that the claim of deduction of Rs.11,86,888/- as alleged by the defendant is not only malafide and misconceived but is patently illegal and colourable device to diminish/reduce the due and lawful claim of the plaintiff against the defendant. 8 6 It is, therefore, submitted that the plaintiff is entitled to receive Rs. 45,46,624.35 from the defendant as per particulars set out in the particulars of claim i.e. Exh.C to the plaint. The plaintiff has submitted that the defendant has no defence whatsoever and the defence sought to be raised by the de4fendant is mere moonshine and, therefore, the plaintiff is entitled to a decree as prayed. 7 The learned Advocate appearing for the defendant had submitted that though it is true that the Managing Director of the defendant has admitted under his letter dated 21st March, 2007 (Exh.B-20 to the plaint) that the amount of Rs.34,57,740/- is due and payable by the defendant to the plaintiff towards the total value of supply effected by the plaintiff to the defendant,which included 4% C.S.T.) the defendant is entitled to 9 deduct the amount of Rs.11,86,777/- the break up of which is as follows: 01.Penalty imposed by M/s BEML Rs.7,11,677.00 02.Idle Man Power due to delay in supply of materials. Rs.4,75,100.00 --------------- Rs.11,86,777.00 It is,therefore, submitted that only an amount of Rs.22,70,963.00 is admittedly payable by the defendant to the plaintiff. Upon enquiries made by the Court with the Advocate appearing for the defendant whether the alleged penalty imposed by M/s BEML has been paid by the defendant to the said M/s BEML the learned advocate appearing for the defendant fairly conceded that the same has not been paid till date. 8 Since the substantial part of the plaintiff s claim is admitted by the defendant as can be seen from Exh.B-23 to the plaint and also in the affidavit in reply to the Summons for Judgment, this Court after 10 hearing the learned Advocates for the plaintiff and defendant before passing/reserving final orders in the Summons for Judgment, with a view to put an end to the entire suit, by its order dated 15th July, 2009 directed the deponent of the affidavit in reply to remain present in Court on 18th July, 2009. However, since on 18th July, 2009 the Advocate for the defendant as well as the deponent of the affidavit in reply failed to remain absent, this Court reserved the matter for passing of the final order on the summons for judgment. 9 As can be seen from Exhibit B-23 to the plaint, the defendant has admitted that the net amount due and payable by the defendant to the plaintiff towards the value of supply effected by the plaintiff to the defendant was Rs.34,57,740/- (inclusive of 4% C.S.T.) However, it is the case of the defendant that the amount of Rs.7,11,677/- 11 has been imposed by M/s BEML towards penalty on the defendant which admittedly the defendant has not paid till date. The defendant has also claimed that the defendant is entitled to deduct the sum of Rs. 4,74,100/- towards idle man power due to delay in supply of materials as per the enclosed details. 10 In view of aforesaid the defendant has no other defence except for the argument that the defendant is entitled to deduct the amount of Rs.11,86,777/- from the net amount of Rs.34,57,740/- payable by the defendant to the plaintiff. It is admitted by the defendant that till date the amount of Rs. 7,11,677/- is not paid to M/s BEML towards the alleged penalty. In view thereof, I pass the following order. i) The defendant shall deposit the 12 admitted amount of Rs.22,17,963/- with the Prothonotary and Senior Master of this Court within a period of four weeks from today. Upon deposit of such amount the plaintiff shall be entitled to withdraw the same by providing a Bank Guarantee of a Nationalised Bank to the Prothonotary and Senior Master of the like amount. (ii) The defendant shall within a period of four weeks from today also deposit an amount of Rs.7,11,677/- which according to the defendant has been deducted by them from the amount due to the plaintiff towards the penalty imposed by M/s BEML but not paid till date to M/s BEML. The Prothonotary and Senior Master shall deposit the said amount of Rs.7,11,677/- in fixed deposit/s of Nationalised Banks renewable one year at a time, until further orders of this Court. iii) The defendant, after deposit of the aforesaid amounts with the Prothonotary and 13 Senior Master of this Court, shall file its written statement in the suit within a period of four weeks from the date of such deposit. Discovery and Inspection may be completed by the parties within a period four weeks thereafter. The suit shall thereafter be transferred to the list of commercial causes. Summons for judgment is accordingly disposed of. (S.J.KATHAWALLA J.)