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



M/s. Millenium Steel India Pvt. Ltd., Rep.by its Managing Director, D. Hari Prasad Reddy v/s M/s. Ind Barath Thermal Power Ltd., Rep.by its Managing Director, Chennai


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

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:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

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:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

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

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

Company & Directors' Information:- C P S STEEL INDIA PRIVATE LIMITED [Active] CIN = U27104TZ2003PTC010552

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

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:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- MILLENIUM INDIA PRIVATE LIMITED [Active] CIN = U51109AS2000PTC006041

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

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

Company & Directors' Information:- MILLENIUM STEEL INDIA PRIVATE LIMITED [Active] CIN = U51420TN2005PTC055327

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

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:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- B D STEEL AND POWER PRIVATE LIMITED [Active] CIN = U27100WB2010PTC144767

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

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

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:- Y D STEEL PRIVATE LIMITED [Strike Off] CIN = U27109WB1997PTC086155

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

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

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

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

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

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

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

Company & Directors' Information:- S. G. POWER AND STEEL PRIVATE LIMITED [Active] CIN = U14290DL2012PTC240718

Company & Directors' Information:- R. S. STEEL AND POWER PRIVATE LIMITED [Active] CIN = U70100CT2009PTC021362

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

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

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

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- E & G STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U28113PN2009PTC134643

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

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:- H & G STEEL PRIVATE LIMITED [Active] CIN = U27109KL2020PTC063443

Company & Directors' Information:- IND STEEL & POWER PRIVATE LIMITED [Active] CIN = U27320CT2020PTC010700

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

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:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- STEEL INDIA COMPANY (CHENNAI) PRIVATE LIMITED [Active] CIN = U27101TN2004PTC053840

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

Company & Directors' Information:- A M Q STEEL PRIVATE LIMITED [Strike Off] CIN = U27310UP2012PTC053823

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

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

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

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

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:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

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:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

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:- M K G STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066480

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

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

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:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- R B R STEEL PRIVATE LIMITED [Active] CIN = U51103PB2013PTC037791

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

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

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:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

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:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

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:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

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:- STEEL CO PVT LTD [Strike Off] CIN = U51109WB1947PTC015981

    C.S. No. 401 of 2017 & A. Nos. 3680 of 2017, 1429 & 4500 of 2018

    Decided On, 06 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

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



Judgment Text

(Prayer: Civil Suit is filed under Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of C.P.C., praying to pass a judgment and decree against the defendant: (a)directing the defendant to pay a sum of Rs.34,94,04,036/- (Rupees Thirty Four Crores Ninety Four Lakhs Four Thousand and Thirty Six Only) as on 31.05.2017 with interest at the rate of 18% per annum on the principal sum of Rs.23,70,95,643/- from the date of plaint till the day of payment in full to the plaintiff and (b) the costs.)(This case has been heard through Video Conferencing)1. Suit filed for recovery of money due towards goods sold and delivered. Since the suit is in respect of payment for the coal imported above the specified value, the nature of suit was determined as Commercial Suit falling under Section 2(1)(c)(ii) of the Commercial Courts Act, 2015 and tried by the Commercial Division of the High Court, Madras.2. Case of the plaintiff in short:The plaintiff having its office at Chennai, is in the business of iron ore, coal, barytes, bentonite and other minerals. The defendant through M/s Smart Gen Infra Private Limited approached the plaintiff at its office and expressed its desire to buy Non-coking Coal of Indonesian Origin (herein after called as the ‘goods’) and the same was agreed by the plaintiff. Pursuant to this, the defendant placed its purchase order on 10/01/2014 . Later, the plaintiff and the defendant themselves and through M/s Smart Gen, entered into High Seas Agreement on 16/12/2014 for selling 55750 MTs of goods at the rate of Rs.3131.88/- per MT to be transshipped through MV PORTHOS. On the same day, the plaintiff raised its invoice for a total price of Rs.17,46,02,310/-. After price adjustment and conversion of exchange value, the defendant confirmed the money payable by it will be Rs.17,55,65,563/-.3. The defendant subsequently wanted additional 3 shipments of coal each 50,000 MTS as per the same specifications agreed between the parties. Accordingly, purchase order dated 29/12/2014 for supply of 3 shipments of coal each 50,000 MTs at the rate of 49.50 USD was placed by the defendant. The High Seas agreement dated 22/01/2015 was entered upon by the plaintiff and the defendant to supply 56,800 MTs of coal from Indonesia by vessel MV EVANGELIA. The invoice dated 22/01/2015 was raised by the plaintiff for Rs.17,51,62,680/-. The defendant, after price adjustment and conversion of exchange value, confirmed the money payable by it will be Rs.14,66,06,723/-.4. The vessels MV PORTHOS and MV EVANGELIA completely discharged the goods at Tuticorin Port on 17/12/2014 and on 04/02/2015. As per the terms of the High Seas Sale Agreement and the purchase order dated 10/01/2014, , the defendant is supposed to pay the invoice amount by RTGS or LC on usance basis on the 45th day and as per the terms of the High Seas Sale Agreement and the purchase order dated 29/12/2014, the defendant is supposed to pay the due within 60 days. 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.23,70,95,643/- is due and payable by the defendant. Several meetings between the parties for settlement of the due not yielded result and several promises given by the defendant is not kept. The defendant informed the plaintiff that they have filed petition before the Regulatory Commission (TNERC) against TANGEDCO for realisation of huge arrears pending with TANGEDCO towards the price for the energy supplied and soon they will settled the dues. Thereafter, in the meeting held between the plaintiff and the defendant at Chennai, the defendant promised to clear the dues 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 rather not disclosed to the plaintiff nor they did not settle the plaintiff dues. As on 31/05/2017, the balance outstanding due and payable by the defendant to the plaintiff is Rs.23,70,95,643/- towards principle and Rs.11,23,08,3393/- towards interest.5. Case of the defendant in short:The defendant is a registered Company under the Companies Act, 1956 and it is a Special Purpose Vehilce, which owns a power generating station at Swaminatham Village, Tuticorin with a capacity of 180 MW. The power generation station is set up by the defendant primarily for the purpose of generating electricity for the use of its shareholders. The defendant has never purchased any coal from the plaintiff. There is no privity of contract between the plaintiff and the defendant. No payment due and payable by the defendant to the plaintiff and as a consequence, no cause of action arises against the defendant.6. From perusal of the plaint, the alleged cause of action in the present suit arose outside the jurisdiction of this Court. The goods allegedly delivered only at Tuticorin, where the defendant plant is located. Therefore, the suit against defendant carrying on business outside the jurisdiction of this Court without obtaining leave under Clause 12 of Letters Patent is liable to be rejected. The Court in Tuticorin alone have territorial jurisdiction over the subject matter. The suit should also be dismissed in limine for non-joinder of necessary parties to the present suit. M/s Smart Gen Infra Pvt. Ltd, through which the defendant alleged to have approached the plaintiff for purchase of the coal, had played major role in the dealing. The defendant had issued the purchase order dated 10/01/2014 only to M/s Smart Gen Infra Pvt Ltd. Therefore, M/s Smart Gen is a necessary party to the suit without whom the suit cannot be properly adjudicated. The present suit is a case of abuse of law and forum shopping. After causing notice dated 12/07/2017 with a view to initiate Corporate Insolvency Proceedings before the NCLT, Hyderabad, the present suit is filed for the same claim. The threat of multiple legal proceedings for same claim is abuse of law.7. The suit is barred by limitation. According to the plaintiff, the first purchase order was placed on 10/01/2014, any claim based on this purchase order. The plaint presented in 2017 is beyond 3 years period. Hence, the suit is barred by limitation. To get over the point of limitation, the plaintiff has clubbed two purchase orders under one claim to show as if the suit is within the period of limitation. The nature of transactions are separate and individual. They both cannot be clubbed under one claim/suit.8. 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 plaintiff is entitled to file and maintain the present suit on account of having initiating Corporate Insolvency Proceedings before National Company Law Tribunal, Hyderabad under the Insolvency Bankruptcy Code Rules, 2016?(iii) Whether the suit is liable to be dismissed for non-joinder of necessary party i.e., M/s Smart Gen Infra Pvt. Ltd on whom the defendant had placed the Purchase Orders dated 10/01/2014 & 29/01/2014?(iv) Whether the plaintiff has supplied goods (Coal) to the defendant under the High Seas Sale Agreement dated 16.12.2014 & 22.01.2015 and whether the plaintiff and the defendant had entered into the above Agreement dated 22.01.2015?(v) Whether the claim of the plaintiff is barred by limitation?(vi) Whether the plaintiff is entitled to a sum of Rs.34,94,04,036/- as on 31.05.2017 with interest at the rate of 18% on the principal sum of Rs.23,70,95,643?(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 and 21 documents (Ex.P-1 to Ex.P-21) were marked. On behalf of defendant, its former employee Mr.Prakash Manian examined as DW-1 and Mr.T.S.Das examined as DW-2. During the cross examination of Defence witnesses, the plaintiff has marked Ex.P-22 to Ex.P-26.10. Issue No.(i):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-600 035. In respect of this assertion, there is no specific denial in the written statement. However, the records and other relevant exhibits, without any doubt, discloses the corporate office of the defendant is at Plot No.30A, Road No.1, Film Nagar, Jubilee Hills, Huderabad-500 096 and the defendant is having its plant at Tuticorin. Based on the facts that the defendant's company is at Hyderabad and the subject goods was delivered at Tuticorin Port, it is contended 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.11. 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) In C.Govindarajulu Naidu v. The Secretary of State for India in Council reported at 1927 26 LW 588, this Court has held as below:“The next contention is that even so he can sue by reason of the latter part of Clause 12 of the Letters Patent, which is:“or if the defendant shall dwell or carry on business or personally work for gain within those limits”.9. It is contended that the defendant both dwelt and carried on business here at the commencement of the suit and in support of this contention the plaintiff has cited the decision of a Bench of this Court in Subbaraya Mudali v. The Government and Cunliffe (1863) 1 MHCR 286. In that case it was held that under Clause 12 of the Letters Patent the Government must be considered as carrying on business at the place where its members exercise all the functions of Government, that is, in Madras. But even in that case the word "dwell' was considered inapplicable to the Government. On the other hand in Daya Narain Ternary v. The Secretary of State for India (1887) ILR 14 C 256, it was held by a Bench that the words "carrying on business or personally work for gain" are inapplicable to the Secretary of State for India in Council. At page 273 in the course of this judgment Mitter, J., says:“that the word 'business' in Clause 12 of the Letters Patent was used in a restricted sense is also indicated by the words 'personally work for gain' to be found in the same section. The latter words would be unnecessary if the word 'business' had been intended to be used in an unrestricted sense.”(ii) In J.D.John and Ors., v. Oriental Government Security Life Assurance Co. Ltd., reported in 1928 SCC Online Mad. 347, this Court has held as below:“7. The other objection depends upon the question whether the Oriental Government Security Life Assurance Co. Ltd., carries on business in Madras. It is no doubt true that the company has got an agency in Madras, but it is not stated that this agency has any directors here or any persons who form a kind of controlling Board in Madras or at least have some direction as regards the policies. The affidavit filed on behalf of the company is to the effect that so far as the Madras office is concerned, it has no independent discretion in the matter, but simply acts as a post office which receives applications or moneys and passes them to the Head office in Bombay, and that is the Head Office that issues all orders there being no vestige of discretion in the local office here to do anything. These facts are not contradicted and the question is whether it can be said that the Oriental Government Security Life Assurance Co. Ltd., carries on business in Madras. I think this question is really concluded by the judgment of Beasley, J., in Bombay Co. Ltd. v. Municipal Council Dindigul A.I.R. 1929 Mad. 146 which was a suit filed by the Bombay Co. Ltd., Madras, against the Municipal Council of Dindigul. It was there shown that the representatives of the Bombay Company in Dindigul had no discretion except receiving orders and sending them on. The question was whether they carried on business in Dindigul to be taxed. It was held that they were not, and Beasley, J., in an elaborate review of the authorities states that there is no difference in principle between residence for purposes of either the Income-tax Act, or the Municipal Act, or for purposes of jurisdiction. This judgment was affirmed by the Chief Justice and Madhavan Nair, J., in O.S. Appeal No 6 of 1928 where all the authorities have been discussed by the learned Judges. I think that the facts disclosed in the present case in the affidavit, namely, that the agency in Madras does nothing, but acts as a post office forwarding proposal and sending moneys and not having any discretion in the matter either to conclude contracts or to vary them or to enter into them, the Oriental Government Security Life Assurance Company does not carry on business in Madras. It was stated that a suit may lie under Section 12 of the Letters Patent if the money is not paid. That may be so not on the ground that there is business carried on in Madras, but because the proposal was made in Madras and forwarded and part of the cause of action arose in Madras and on that ground leave may be given. I do not think we can confuse the fact of jurisdiction arising out of a part of the cause of action with jurisdiction arising out of the carrying on of business. Unfortunately, our rules do not provide for garnishee proceedings in cases where a part of the cause of the action arises in respect of a debt sought to be enforced by garnishee proceedings.”(iii) In The Clan Line Streamers Ltd., v. Gordon Woodroffe and Co.(Madras) (Pte.) Ltd., reported at 92 LW 541, this Court has held as below:“9. Where leave under Clause 12 is necessary, the granting of such leave is a condition precedent to the court having jurisdiction to entertain the suit; and therefore such leave has to be obtained at the time of the institution of the suit (Vide Shamchandra Rampratap v. Bhikamchand Ganeshlal, AIR 1929 Bom 468; Motilal Tribhovandas v. Shankarlal Chaganlal, AIR 1939 Bom 345; Bimal Singh Kothari v. Muir Mills Ltd., , Kshitish Kumar v. State of Bihar and Laliteswar Singh v. Rameswar Singh (1907) ILR 34 Cal 619)).(iv) In Urooj Ahmed, Lords Enterprises (India) v. Preethi Kitchen Appliances Pvt. Ltd., reported in (2013) 6 CTC 247, this Court has held as below:“5(b).Clause 12 of the Letters Patent Act, 1970:-There is no difficulty in appreciating the submissions of the learned counsel appearing for the appellant that when there is a part of cause of action having arisen outside the jurisdiction of the Court, a leave under Clause 12 of the Letters Patent is required mandatorily. Consequently, when such a leave has not been obtained already, the same cannot be cured subsequently, as held by this court in The Clan Line Steamers Ltd., V. Gordon Woodroffe & Co., (AIR 1980 Madras 73). However, the said proposition of law on the interpretation of Clause 12 of the Letters Patent does not have any application to the present case. As discussed earlier, there are specific averments in the plaint about the defendants selling their infringing goods at Chennai and passed off their own goods as that of the plaintiff. In view of the said averments, we do not find that the plaint is liable to be rejected for not obtaining leave as the same is not required under law.”12. On considering the evidence and the dictum of this Court, regarding the expression “carrying on business”, in the context of Letters Patent, this Court finds that based on the purchase orders Ex.P2 and Ex.P6, the High Seas Sales Agreement Ex.P3 and Ex.P7 were executed. Ex.P3 and Ex.P7 are the foundational documents for the suit transaction. In this document, at serial No.15, the parties have agreed to subject themselves to Chennai Jurisdiction. DW-1 in his deposition, admits that the defendant is having office at Chennai and he is the signatory in Ex.P3. Thus, from the documentary and oral evidence, it could be seen that the defendant has business opertion at Chennai and in view of conferment of jurisdiction to Court at Chennai, the defendant is estopped from pleading forum shopping against the plaintiff. More specifically, the defendant office at Chennai not functioning as just post office, but the facts eluciated during the cross examination of DW1 and DW2 indicates, Senior Officials of the Defendant company Mr.Prakash Manian and Mr.Jerad Kishore used to sit at Chennai Office and function. Ex.P24 and Ex.P25 sworn by Mr.Prakash Manian. The Chennai office is given as his office address. Therefore, when both the parties have business operation at Chennai and the transaction were executed in Chennai, it satisfies the expression “carrying on business”. Hence, this Court has the territorial jurisdiction to entertain and decide the suit. In case where defendant is carrying on business, leave under Clause 12 is not required. Accordingly, issue No.(i) is answered in affirmative.13. Issue No.(ii):The National Company Law Tribunal (in short "NCLT") proceedings referred in the written statement, later disposed as withdrawn. Hence, the learned counsels on both side did not press for a finding on this issue.14. Issue No.(iii):In the plaint, there is reference about M/s Smart Gen Infra Pvt. Ltd, which stood as go between. The defendant in the written statement has averred that they placed purchase order only with M/s Smart Gen Infra Pvt. Ltd. This averment is not correct and contrary to the documentary evidences like Ex.P-2 and Ex.P-6, which are the purchase orders. The defendant could not place any material evidence to show M/s Smart Gen Infra Pvt Ltd was party or signatory to the documents connected with the sale of coal to the defendant. Particularly, the purchase orders Ex.P-2 and Ex.P-6 were placed by the defendant and not by M/s Smart Gen Pvt.Ltd. DW-1 in the cross examination, admits that the purchase order was signed by Mr.Seetharaman, the Joint Managing Director of the defendant company. The acknowledgement of liability Ex.P-10 and Ex.P-11 are signed by Mr.Seetharaman. The HSS agreement is also only between the plaintiff and the defendant. The role of M/s Smart Gen Infra Pvt Ltd as mediator in the transaction, no way make it a necessary party to the suit, when the transactions is only between the parties in this suit. Accordingly, Issue No.(iii) is answered in negative.15. Issue No.(iv)The transaction between the plaintiff and the defendant initiated through the purchase orders Ex.P2 dated 10.01.2014 and Ex.P6 dated 29.12.2014. In the cross examination of DW1-Prakash Manian, he admits that the purchase order of his company marked as Ex.P2 and Ex.P6 were signed by Mr.Seetharaman, the Joint Managing Director. Similarly, he also admits the HSS Agreement Ex.P3 dated 16.12.2014 was signed by him on behalf of the defendants. Later, the defendant company has acknowledged the money payable for these two consignments and those acknowledges of liability Ex.P10 and Ex.P11 is signed by Mr.Seetharaman, Joint Managing Director. From all these documentary and oral evidence this Court find, the averments made in the written statement are not true. A bald denial of the suit transaction has been put forth in the written statement. Whereas the HSS agreements, Invoices, purchase orders, acknowledgement of debts all put together proves the fact that there was valid agreement between the parties and acted upon. Without any reason, the defendant has failed to pay the plaintiff the money due and payable. The denial of HSS agreements dated 16.12.2014 and 22.01.2015 is only an afterthought for the sake of the suit. Whereas in the witness box, the defendant side witnesses have conceded the factum of purchase and failure to pay the goods value. Therefore, Issue No.(iv) is held in affirmative.16. Issue No.(v)The defendant harp on the point of limitation, based on the date of first purchase order. The plaint averment indicates that consequent to the first purchase order Ex.P-2, the plaintiff and the defendant entered into HSS agreement on 16/12/2014, (Ex.P-3), the coal was discharged at Tuticorin Port fr

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om the vessel MV PORTHOS on 17/12/2014. The price of the goods is due and payable within 45 days as per the terms of the HSS Agreement. Likewise, for the goods supplied under the second purchase order, the money due and payable on the expiry of 60 days from delivery, the vessel MV Evangelia discharged the goods on 04.02.2015 60 days time to pay expired on 04.04.2015. Later, the parties have consolidated the money payable under these two transactions and in the MOU Ex.P-10 and Ex.P-11 agreed for a settlement. Since the defendant failed to pay the money agreed, this suit is filed on 01.06.2017. Therefore, this Court does not see any malafide in clubbing the claim under the two transaction and even if it was not clubbed, the first transaction under purchase order Ex.P-2 will not be barred by limitation, as the cause of action for the suit for goods sold and delivery will arise only on the date of delivery and not earlier i.e. from 17/12/2014 and not earlier. Therefore, this Court holds that the suit is not barred by limitation. Issue No.(iv) is answered accordingly.17. Issue No.(vi)Regarding the quantum of liability, Ex.P10 and Ex.P11, the letter of the defendant indicates, the value of the goods sold under HSS agreement dated 16.12.2014 and delivered through the vessel MV PORTHOS is Rs.17,55,65,563/- . Likewise, the value of the goods sold and delivered through vessel M.V. EVANGETIA M is Rs.14,66,06,723/-. The defendant admits delivery of these goods but a plea of lack of privity of contract pleaded in vein. In the MOU dated 09.11.2018 between the plaintiff and the defendant, the due as the date of the MOU was ascertained and confirmed as Rs.33,05,02,000/-. This amount is accepted by both parties. While so, the defendant liability to pay the plaintiff as on 09.11.2018 is Rs.33,05,02,000/- and for that sum, the plaintiff is entitled for a decree. As far as interest is concerned, under the HSS agreement, the defendant has agreed to pay (max.) 10.5% interest. Therefore, the plaintiff is entitled for interest at the rate of 10.5% from 09.11.2018 till the date of realisation for the sum of Rs.33,05,02,000/-.18. In the result, the Civil Suit for recovery of money is allowed as above with costs. Consequently, connected Applications are closed.
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