w w w . L a w y e r S e r v i c e s . i n



M/s. Black Burn Fuels Private Limited, Formerly Known as M.s Maheswari Brothers Coal limited, Rep.by its Director/Authorised Signatory, D. Hari Prasad Reddy v/s M/s. Ind Barath Thermal Power Limited, Rep.by its Managing Director, Chennai


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

Company & Directors' Information:- COAL INDIA LTD GOVT OF INDIA UNDERTAKING [Active] CIN = L23109WB1973GOI028844

Company & Directors' Information:- D B POWER LIMITED [Active] CIN = U40109MP2006PLC019008

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Amalgamated] CIN = U40101WB2003PLC097340

Company & Directors' Information:- IND-BARATH THERMAL POWER LIMITED [Active] CIN = U40101TG2007PLC052232

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- PRASAD CORPORATION PRIVATE LIMITED [Active] CIN = U32301TN1994PTC028160

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- IND POWER LIMITED [Active] CIN = U40108CT2004FLC016841

Company & Directors' Information:- J. B. AND BROTHERS PRIVATE LIMITED [Active] CIN = U36911MH2009PTC191625

Company & Directors' Information:- A J BROTHERS LIMITED [Active] CIN = L60300MH1980PLC107927

Company & Directors' Information:- PRASAD AND CO. PRIVATE LIMITED [Active] CIN = U67120DL1995PTC068088

Company & Directors' Information:- M. PRASAD AND CO LIMITED [Active] CIN = U67120WB1999PLC090325

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- U C M COAL COMPANY LIMITED [Active] CIN = U10100UP2008PLC036169

Company & Directors' Information:- MAHESWARI & CO PVT LTD [Active] CIN = U52322WB1951PTC019476

Company & Directors' Information:- S S FUELS PRIVATE LIMITED [Active] CIN = U23101DL1991PTC045057

Company & Directors' Information:- M G BROTHERS PRIVATE LIMITED [Active] CIN = U72900AP2000PTC033341

Company & Directors' Information:- S S BROTHERS (INDIA) PRIVATE LIMITED [Active] CIN = U70101MP1998PTC031552

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- A S FUELS PRIVATE LIMITED [Active] CIN = U74899DL1992PTC050972

Company & Directors' Information:- G N B BROTHERS PRIVATE LIMITED [Active] CIN = U74899DL1993PTC054334

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- M G BROTHERS LIMITED [Active] CIN = U72900AP2000PLC033341

Company & Directors' Information:- S S M BROTHERS LIMITED [Active] CIN = U17111TZ1964PLC000528

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- N S COAL PRIVATE LIMITED [Active] CIN = U10100MH2003PTC140221

Company & Directors' Information:- BLACK BURN & CO PVT LTD [Active] CIN = U27109WB1982PTC034686

Company & Directors' Information:- A R FUELS PRIVATE LIMITED [Active] CIN = U74999RJ2000PTC016116

Company & Directors' Information:- INDIA THERMAL POWER LIMITED [Active] CIN = U04010MH1993PLC171444

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M B BROTHERS PRIVATE LIMITED [Strike Off] CIN = U99999MH1953PTC009016

Company & Directors' Information:- POWER FUELS (INDIA) PRIVATE LIMITED [Active] CIN = U52395MH2003PTC140335

Company & Directors' Information:- A R BROTHERS PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012174

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- P N BROTHERS (INDIA) PRIVATE LIMITED [Converted to LLP] CIN = U70109DL1997PTC087147

Company & Directors' Information:- A J COAL PRIVATE LIMITED [Active] CIN = U23100MH1994PTC076762

Company & Directors' Information:- R. K. FUELS PRIVATE LIMITED [Active] CIN = U23201WB1988PTC045752

Company & Directors' Information:- G AND M BROTHERS PRIVATE LIMITED [Active] CIN = U31909RJ1993PTC007856

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- A J BROTHERS LTD. [Not available for efiling] CIN = L51909WB1980PLC032509

Company & Directors' Information:- M R FUELS PRIVATE LIMITED [Active] CIN = U15429PB1996PTC019160

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- S K FUELS PVT LTD [Active] CIN = U23109WB1995PTC075701

Company & Directors' Information:- REDDY LIMITED [Active] CIN = U24232DL2012PLC236860

Company & Directors' Information:- B AND C BROTHERS PRIVATE LIMITED [Active] CIN = U45209CT2020PTC010852

Company & Directors' Information:- N G BROTHERS PRIVATE LIMITED [Active] CIN = U51909WB2007PTC118936

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- S P BROTHERS PVT LTD [Active] CIN = U51909WB1988PTC043921

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- A V BROTHERS PRIVATE LIMITED [Active] CIN = U28111DL1997PTC089927

Company & Directors' Information:- B L A COAL PRIVATE LIMITED [Active] CIN = U10200MH2009PTC191479

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- BROTHERS INDIA PRIVATE LIMITED [Active] CIN = U45201JH2016PTC003665

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- G R COAL PRIVATE LIMITED [Strike Off] CIN = U10200GJ2007PTC050341

Company & Directors' Information:- N S FUELS PRIVATE LIMITED [Active] CIN = U23109PB2000PTC024051

Company & Directors' Information:- COAL BURN (INDIA) PVT LTD [Strike Off] CIN = U23109WB1974PTC029402

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- T K FUELS (INDIA) PRIVATE LIMITED [Active] CIN = U23201MH1999PTC119882

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- HARI BROTHERS PVT LTD [Not available for efiling] CIN = U51909WB1975PTC030095

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- K BROTHERS PVT LTD [Under Liquidation] CIN = U51900WB1945PTC012198

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- BURN & CO LTD [Strike Off] CIN = U35203WB1918PLC000980

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- G. P. AND BROTHERS PRIVATE LIMITED [Strike Off] CIN = U45101UP1995PTC018363

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- S K S FUELS PVT LTD [Strike Off] CIN = U40200HP1984PTC006030

Company & Directors' Information:- V S BROTHERS AND CO PVT LTD [Strike Off] CIN = U99999MH1932PTC001845

Company & Directors' Information:- N K V BROTHERS PVT LTD [Strike Off] CIN = U60210TN1960PTC004264

Company & Directors' Information:- K. S. R. BROTHERS PRIVATE LIMITED [Active] CIN = U74999DL2016PTC308898

Company & Directors' Information:- COAL CORPORATION OF INDIA LTD [Strike Off] CIN = U10100WB1946PLC013091

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- D H BROTHERS PRIVATE LIMITED [Active] CIN = U65993UP1930PTC000414

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- B M BROTHERS PVT LTD [Strike Off] CIN = U24231WB1950PTC019147

Company & Directors' Information:- H PRASAD & CO PVT LTD [Strike Off] CIN = U51109WB1944PTC011797

Company & Directors' Information:- D S REDDY & CO PVT LTD [Strike Off] CIN = U51102TN1952PTC000600

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

Company & Directors' Information:- R N V S BROTHERS PVT LTD [Strike Off] CIN = U45202CH1972PTC003198

    Civil Suit No. 403 of 2017

    Decided On, 17 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Plaintiff: Abdul Hameed for AAV Partners, Advocates. For the Defendant: Anirudh Krishnan, Advocate.



Judgment Text

(Prayer: Civil Suit has been filed under Order IV, Rule 1 of O.S.Rules read with Order VII, Rule 1 of C.P.C., praying to pass a judgment and decree against the defendant by: (a)directing the defendant to pay a sum of Rs.24,45,38,095/- (Rupees Twenty Four Crores Forty Five Laksh Thirty Eight Thousand and Ninety Five Only) as on 31.05.17 with interest at the rate of 18% per annum on the Principal sum of Rs.14,85,60,336/- from the date of plaint till the day of payment in full to the plaintiff; (b)directing the defendant to pay a sum of Rs.1,77,34,473/- (Rupees One Crore Seventy Seven Laksh Thirty Four Thousand Four Hundred and Seventy Two only) as on 31.05.2017 due to the loss incurred on exchange of goods with interest at the rate of 18% per annum from the date of plaint till the day of payment in full to the plaintiff; (c)the costs.)(The case has been heard through video conferencing)1. Money suit for recovery of Rs.24,45,38,095/-as on 31/05/2017 with interest at the rate of 18% per annum on the principal sum of Rs.14,85,60,336/- towards goods sold and delivered.2. The suit dispute is in respect of coal imported from foreign and delivered at Tuticorin Port at India. The suit claim is above the specified value. Hence, dispute was determined as Commercial dispute falling under Section 2(1)(c)(ii) of the Commercial Courts Act, 2015 and tried by the Commercial Division of the High Court, Madras.3. Plaint averment in short:The plaintiff Private Limited Company M/s Black Burn Fuels Pvt Limited is formerly known as M/s Maheswari Brothers Coal Limited. It is carrying on business in iron ore, coal, barytes, bentonite and other minerals for several years. It is operating in the States of Tamil Nadu, Andhra Pradesh, Karnataka etc. During the course of the business the defendant approached the plaintiff at its office at Chennai and evinced interest to buy Non-coking Coal of Indonesian Origin (herein after called as the “goods”) and the same was agreed by the plaintiff.4. Pursuant thereto, on the three following dates, the goods were sold and delivered to the defendant.First, on 20/12/2013, the plaintiff and the defendant executed High Seas Sale Agreement for selling 55,500 MT of goods at the rate of Rs. 3364.20/- PMT. The plaintiff raised invoice on the same date for Rs.13,67,13,100/- The goods were discharged at Tuticorin port through the vessel M.V.Nighthawk on 23/12/2013.Second, on 21/03/2014 plaintiff and the defendant executed High Seas Sale Agreement for selling 55,000 MTS of goods at the rate of Rs.3388.19/- PMT. The plaintiff raised invoice on the same date for Rs.18,08,50,450/-. The goods were discharged at Tuticorin Port through the vessel M.V. HE HE on 24/03/2014.Third, on 30/01/2014, the plaintiff and the defendant executed High Seas Sale Agreement for selling 50,000 MTS of goods at the rate of Rs.3173.62/- PMT. The plaintiff raised invoice on the same date for Rs.17,91,50,849/-. The goods were discharged at Tuticorin Port through the vessel M.V. VIOLA on 24/08/2014.5. As per the terms of the High Seas Sale Agreements and the invoices, the defendant is supposed to pay the invoice amount by RTGS or LC on usance basis on the 60th day. However, the defendant failed to pay the due in full within the time agreed. After giving credit to various payments (running account) made by the defendant to the plaintiff, as on 31/05/2017, a sum of Rs.14,85,60,336/- towards principal is due and payable by the defendant, besides interest. Apart from the above due, the plaintiff also lost Rs.1,77,34,472/- towards difference in foreign exchange rate, which the plaintiff is legally entitled to claim as against the defendant. Several meetings between the parties for settlement of the due at the office of the defendant at Chennai did not yield result and several promises given by the defendant were not kept. The defendant informed the plaintiff that they have filed a petition before the Regulatory Commission (TNERC) against TANGEDCO for realization of huge arrears pending with TANGEDCO towards the price for the energy supplied and as soon as, they get it, the plaintiff’s due will be settled. Thereafter, a meeting was held at the office of the defendant at Chennai between the plaintiff and the defendant, wherein the Defendant undertook to clear the dues on or before January 2017. However, the defendant failed to keep up their promise. The plaintiff came to know that the defendant received more than 100 crores from TANGEDCO, the same was neither disclosed to the plaintiff nor the dues of the plaintiff was settled.6. Written statement averment in short:In the plaint, No. 20, Chamiers Road, Nandanam, Chennai, is mentioned as the registered office of the defendant. However, it was the defendant’s office at Hyderabad, which involved in the transaction with the plaintiff. The plaint averments are denied as false and frivolous. The entire cause of action in the present suit arose outside the jurisdiction of thisCourt. The defendant carries on business at Tuticorin and it was the Tuticorin plant and the office of the defendant that was engaged in the transaction. The contract concluded at Tuticorin, the goods were delivered at Tuticorin and the payments were made through bank, situated outside the jurisdiction of this Court. Even assuming part cause of action arose within the jurisdiction of this Court, the plaintiff cannot rely on the fact that the defendant has office in Chennai to sue the defendant without obtaining leave to sue under Clause 12 of the Letters Patent, since the entire cause of action arose outside the jurisdiction of this Court.7. The defendant is a Special Purpose Vehicle, in the business of producing electricity and selling it to its shareholders and TANGEDCO. The coal based thermal power plant is located at Tuticorin. Even according to the plaint, the first two transactions dated 20/12/2013 and 21/03/2014, the claim is barred by limitation, since the suit is filed only on 01/06/2017. The third transaction was never entered by the defendant. The allegation of discharge of coal denied. No pending dues to be paid to the plaintiff by the defendant and any claim whatsoever is barred by limitation. Merely by mentioning the defendant’s registered office address, when no part of the transaction was negotiated or dealt with by the defendant’s Chennai Office, the plaintiff has no cause of action to file the suit with the jurisdiction of this Court.8. After receiving the affidavit of admission and denial of documents, based on the pleadings, this Court framed the following issues:(i) Whether the Hon’ble High Court, Madras has got territorial jurisdiction to entertain and decide the suit filed by the plaintiff against the defendant?(ii) Whether the amounts due to plaintiff by the defendant under High Seas Sale Agreements dated 20.12.2013 and 21.03.2014 have been paid in full by the plaintiff to the defendant?(iii) Whether the claim of the plaintiff is barred by limitation or not?(iv) Whether the defendant had entered into the High Seas Sale Agreement dated 23.06.2014?(v) Whether the plaintiff is entitled to a sum of Rs.24,45,38,095/- as on 31.05.2017 with interest at the rate of 18% on the principal sum of Rs.14,85,60,336/-?(vi) Whether the plaintiff is entitled to a sum of Rs.1,77,34,472/- as on 31.05.2017 with interest at the rate of 18% on account of foreign exchange loss?(vii) To what other reliefs, the plaintiff is entitled to?9. On behalf of the plaintiff, Mr.D.Hari Prasad Reddy, the Authorised Signatory of the plaintiff company was examined. 24 documents through PW-1 and 6 documents in the course of cross examination of DW-1 were marked. They are Ex P-1 to Ex P-30. On behalf of defendant, its former employee Mr.Prakash Manian examined as DW-1 and Mr. T.S.Dass as DW-2.10. Issue No.(i): Whether the Hon’ble High Court, Madras has got territorial jurisdiction to entertain and decide the suit filed by the plaintiff against the defendant?As per the plaint, in long cause title, the place of business of the defendant is mentioned as Registered Office at No.20, Chamiers Road, Nandanam, Chennai. In respect of this assertion, there is a vague denial in the written statement. However, there is no contra document placed by the defendant to show that their registered office is not at Chennai. The perusal of the deposition of DW-1 and exhibits like the purchase orders marked as Ex.P-9, affidavits Ex.P-29 and Ex P-30 filed on behalf of the defendant’s, without any doubt, discloses the defendantis carrying on its business also at Chennai.11. Referring the corporate office address at Plot No.30A, Road No.1, Film Nagar, Jubilee Hills, Hyderabad-500 096 and their plant at Tuticorin, it is contended by the defendant that no transaction took place at Chennai within the territory of this Court jurisdiction. Since the defendant carrying on business outside Chennai, even if part cause of action has arisen within the jurisdiction of this Court, leave under Clause 12 of Letters Patent, ought to have obtained.12. The following judgments are relied by the learned counsel for the defendant to emphasis, the term “carrying on business”means not acting as a post office but business in true sense.(i) C.Govindarajulu Naidu v. The Secretary of State for India in Council reported at 1927 (26) LW 558;(ii) J.D.John and Ors., v. Oriental Government Security Life Assurance Co. Ltd., reported in 1928 SCC Online Mad. 347; and13. The following judgments are relied for the preposition, if only part of the cause of action arisen within the jurisdiction of this Court, leave to sue the defendant is mandatory.(i) The Clan Line, Streamers Ltd -vs- Gordon Woodroffe and Co., (Madras) and Ors. reported in 1992 LW 541(ii) Urooj Ahmed, Lords Enterprises (India) -vs- Preeti Kitchen Appliances Pvt Ltd, reported in2013 (6) CTC 247.14. As far the facts of this case shows, the office of the defendant at Chennai had not acted just as a post office but dealing and decisions were taken by the Management of the Defendant from its Chennai office. Their own documents like letter of purchase and affidavits and the cross examination of DW-1, it is admitted that T.S. Das (DW-2) is the authorized signatory through whom the defendant company has filed the written statement in this case sits at Chennai office. Same is corroborated from the proof affidavit in lieu of the chief examination filed by T.S.Das where his office address is shown as No. 20, Old No. 129, Chamiers Road, Nadanam, Chennai. In the cross examination, to the question do he sit at Chennai, he affirms that he always sit at Chennai and he is the authorized person of M/s Ind Bharat Thermal Power Pvt. Ltd. Therefore, without any doubt, it is well proved that the defendant is carrying on business at Chennai and the dictum laid in the judgments cited by the learned counsel for the defendant does not apply to the facts of this case.15. Leave to sue under Clause 12 of the Letters Patent will arise, if the part of the cause of action arisen within the jurisdiction of this Court and if the defendant not carrying on business within the jurisdiction of this Court. The evidence pointed above is a clear admission of the fact that the defendant is carrying on business within the jurisdiction of this Court.16. The point emphasized by the learned counsel for the defendant that the transaction pertaining to the suit never took place in the office of the defendant at Chennai not established by the defendant. Contrarily, the admissions of the defendant’s side witnesses, regarding the presence of senior officers of the defendant company (DW-2-T.S.Das) and the President of the company Mr. Jerad Kishore sit at Chennai office, disproves the defendant’s contention regarding cause of action not within the jurisdiction of this court. Therefore, it is held that this Court has jurisdiction to entertain this suit. Issue No.1 is answered in affirmative.17. Issue No. (iii): Whether the claim of the plaintiff is barred by limitation?As per the plaint, the plaintiff and the defendant were maintaining running account for the goods supplied. For the supply of around 1,60,000 MTS of coal under the three transactions, which are mentioned in Ex.P-3 to Ex.P-12, the defendant had not paid in full. The bank statement of accounts is filed as Ex.P-18 to show the account between the parties is a running account. Though in the written statement, it is pleaded by the defendant that, they have cleared the dues as against the first two transactions dated 20/12/2013 and 21/03/2014 and even otherwise they are barred by limitation, the defendant had not come forward with evidence to show that the account was not a running account or no payment was made after 21/03/2014 to the plaintiff for the goods supplied. The claim of the defendant regarding the limitation gets demolished through Ex.P-18 in which the Court could find payment by the defendant into the plaintiff account a sum of Rs.1,00,00,000/- (One Crore of rupees) on 15/04/2015. In case of running account, the limitation starts from the date of last payment. Through Ex.P-18 the plaintiff has proved, the money suit filed on 01/06/2017 is well within the limitation. Accordingly, issue No 3 answered in negative.18. Issue No.(ii): Whether the amounts due to plaintiff by the defendant under the High Seas Sales Agreement dated 20/12/2013 and 21/03/2014 have been paid in full by the plaintiff to the defendant?The defendant assertion in the written statement is that the outstanding in respect of the first two transactions were paid in full even otherwise, it is hopelessly barred by limitation. This Court to the issue No.3, has held that the suit is not barred by limitation for the reasons stated. Hence, whether the money due was paid by the defendant has to be examined.19. DW-1, in the cross examination admits that under the three HSS agreements dated 20/12/2013, 21/03/2014 and 23/06/2014, the plaintiff supplied about 1,40,000 MTS of coal to the defendant. When the witness was confronted with Ex.P-17 (statement of account), the witness admits, he does not know the exact financial. DW-2 also says that he could not say how much the defendant is liable to pay for the supply of the coal. Therefore, the defendant, who denies the liability on the ground of discharge, the onus of proof shifts on the defendant. In this case the defendant has failed to discharge the said burden.20. As already observed, the bank statement Ex.P-18 proves that the transactions between the parties is a running account for the goods sold and supplied. Apart from this plaintiff, several trade creditors had moved the NCLT, Hyderabad, against the defendant for its default in payment. Pending suit, in the NCLT proceedings, the plaintiff and the defendant had mutually entered into a Memorandum of Agreement Ex.P-25 and Ex.P-26. Though these two documents are subsequent to the suit and not given effect by the parties, the liability of the defendant to the plaintiff to a tune of Rs.12,42,27,000/- as on date of the document is an admitted fact and stands unassailed. The plaintiff and the defendant after reconciliation of their respective accounts, had arrived at a sum of Rs.12,42,27,000/- as money due and payable by the defendant. The plaintiff cannot lay suit for anything more than the admitted due receivable.21. Issue No. (iv): Whether, the defendant had entered into the High Seas Sale agreement dated 23/06/2014?Ex.P-10 is the High Seas Sales Agreement dated 23/06/2014. In this agreement, as pointed out by the learned counsel for the defendant, on behalf of the defendant, none had signed. The recital of this HSS agreement indicates that, it is in respect of 56,450 MTS of stream (non-coking) coal of Indonesian origin. The carrier name, bill of lading number and date are shown as M.V.Viola, 01/BJM –IND/VI/14 dated 15/06/2014. This document is not the original, but a photocopy. The defendant had not signed in this document. The plaintiff had given some explanations for not producing the original and to corroborate the transactions rely upon invoice Ex.P-11 and the bill of entry Ex.P-12. These documents are also photocopy. For multiple reasons, Ex.P-10 cannot be admitted into evidence and the objection raised by the defendant counsel during marking of Ex.P-10 has to be sustained. But then, the suit claim is not solely based on Ex.P-10 alone. The defendant, who admits the purchase of about 1,60,000 MTS of coal which obviously includes the third transaction covering Ex.P-10, failed to prove that they have paid the value of the goods purchased. Not a piece of evidence on their part to prove payments. Contrarily, they have admitted the liability to the extent of Rs.12,42,27,000/- subsequent to the filing of written statement in this suit. Therefore, this Court holds that, in a suit for recovery of money, based on running account, the sum due ultimately crystallize on reconciliation of an account by the transacting parties. In this case, the plaintiff documents does not provide sufficient data for the Court to reconcile the account. Neither the defendant, who pleads complete discharge of the due for the first two transactions and total denial of third transaction, which is covered under Ex.P-10 HSS Agreement, had placed before this Court evidence, to substantiate the claims. Under such circumstances, Ex.P-25 and Ex.P-26 and the oral evidence of the respective parties regarding the transactions becomes relevant.22. On appreciation of document placed before this Court, Ex.P-10 if taken as an independent transaction, to be held as not proved. Accordingly, this issue is answered.23. Issue No.(v): Whether the plaintiff is entitled to a sum of Rs.24,45,38,095/- as on 31/05/2017 with interest at the rate of 18% on the principal sum of Rs.14,85,60,336/- ?andIssue No.(vi): Whether the plaintiff is entitled to a sum of Rs.1,77,34,472/- as on 31/05/2017 with interest at the rate of 18% on account of foreign exchange loss?The liability of the defendant as on 31/05/2017 i.e till the date of filing the suit, though claimed to be Rs.24,45,38,095/-, the evide

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nce placed by the plaintiff not sufficient to prove, how the said figure is arrived. Neither the plaint nor the documents relied by the plaintiff explain how the sum of Rs.24,45,38,095/ arrived. Likewise, to substantiate the alleged loss due to foreign exchange difference, no documents placed by the plaintiff. The MoU entered between the parties, pending suit is the only document, which indicates the actual due (ie) Rs.12,42,27,000/-. In fact, the plaintiff had agreed to settled for Rs.6,83,25,000- towards full satisfaction as against the actual due of Rs.12,42,27,000/-. However this settlement did not fructified. But, then the actual due payable was reconciled between the parties and ascertained as only Rs.12,42,27,000/-. Which shall be the principal amount due as on the date of the suit ie 01/06/2017.24. As far as interest for delayed payment, this Court finds in the purchase order Ex.P-9 issued by the defendant, it is agreed by the parties that the payment shall be by RTGS or LC on Usance basis within 60 days from the date of completion of vessel discharge at Tuticorin Port. In case of delay, the defendant shall reimburse to the plaintiff the actual usance interest paid, subject to a maximum of 11%.25. In the light of this clause regarding payment of interest found in Ex.P19 and the actual sum payable as fixed under the MoU Ex.P25 and Ex.P26, though subsequent to the suit, this Court is of the view that the plaintiff shall be entitled for interest only at the rate of 11% for the principal sum of Rs.12,42,27,000/- from the date of suit till the date of its realization. Accordingly, Issue Nos.(v) and (vi) are answered as below:-The principal sum due and payable by the defendant as on 31/05/2017 is Rs.12,42,27,000/- .This amount is inclusive of loss towards exchange rates, if any.The interest payable for the principal amount due shall be 11% p.a., from the date of suit till the date of realization.26. In the result, this Civil Suit is partly allowed with costs as indicated above.
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