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M/s. Ramesh Paper Mart v/s M/s. Matrix Global Private Limited

Company & Directors' Information:- B N GLOBAL PRIVATE LIMITED [Active] CIN = U15400PB2014PTC038543

Company & Directors' Information:- K V GLOBAL PRIVATE LIMITED [Active] CIN = U24100DL2014PTC263567

Company & Directors' Information:- GLOBAL CORPORATION LIMITED [Active] CIN = L74999DL1992PLC048880

Company & Directors' Information:- T & I GLOBAL LTD. [Active] CIN = L29130WB1991PLC050797

Company & Directors' Information:- K G GLOBAL PRIVATE LIMITED [Active] CIN = U74999DL2000PTC104788

Company & Directors' Information:- A. V. GLOBAL CORPORATION PRIVATE LIMITED [Active] CIN = U63090DL2007PTC159315

Company & Directors' Information:- MATRIX CORPORATION PRIVATE LIMITED [Strike Off] CIN = U74999TG2008PTC058555

Company & Directors' Information:- V S MATRIX PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040510

Company & Directors' Information:- A N GLOBAL LIMITED [Active] CIN = U92110MH1985PLC035269

Company & Directors' Information:- D S GLOBAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071516

Company & Directors' Information:- MATRIX GLOBAL PRIVATE LIMITED [Active] CIN = U51103DL2007PTC169997

Company & Directors' Information:- A B C GLOBAL PRIVATE LIMITED [Active] CIN = U51909PB2011PTC035103

Company & Directors' Information:- I A T GLOBAL COMPANY PRIVATE LIMITED [Active] CIN = U24116DL1997PTC084916

Company & Directors' Information:- P. J. PAPER INDIA LIMITED [Active] CIN = U21098DL2006PLC151012

Company & Directors' Information:- V S PAPER MART PVT LTD [Active] CIN = U21022WB1991PTC052973

Company & Directors' Information:- J D GLOBAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC091270

Company & Directors' Information:- B N G GLOBAL INDIA LIMITED [Active] CIN = U52590DL2011PLC225377

Company & Directors' Information:- N K COMPANY (GLOBAL) PRIVATE LIMITED [Active] CIN = U52390WB2010PTC153624

Company & Directors' Information:- K B K GLOBAL PRIVATE LIMITED [Active] CIN = U24296DL2016PTC290487

Company & Directors' Information:- S. A. PAPER PRIVATE LIMITED [Active] CIN = U21097WB2009PTC135556

Company & Directors' Information:- M & D GLOBAL PRIVATE LIMITED [Active] CIN = U31101UP1974PTC003937

Company & Directors' Information:- G MART LIMITED [Active] CIN = U51909KL1996PLC009894

Company & Directors' Information:- V R GLOBAL PRIVATE LIMITED [Active] CIN = U45200WB2007PTC120797

Company & Directors' Information:- M M GLOBAL PRIVATE LIMITED [Strike Off] CIN = U29120WB1986PTC041280

Company & Directors' Information:- R V GLOBAL PRIVATE LIMITED [Active] CIN = U74990MH2009PTC195301

Company & Directors' Information:- M M C GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U11200MH2010PTC206910

Company & Directors' Information:- S R GLOBAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1997PTC084553

Company & Directors' Information:- H V GLOBAL PRIVATE LIMITED [Active] CIN = U18101DL2000PTC103960

Company & Directors' Information:- R P GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74990MH2009PTC193409

Company & Directors' Information:- M S GLOBAL PRIVATE LIMITED [Active] CIN = U70100MH2008PTC213273

Company & Directors' Information:- A J MART INDIA PRIVATE LIMITED [Strike Off] CIN = U52520KL2003PTC016634

Company & Directors' Information:- R S V GLOBAL LIMITED [Strike Off] CIN = U51909DL1994PLC059032

Company & Directors' Information:- U P PAPER CORPORATION PRIVATE LIMITED [Active] CIN = U45203WB1945PTC012185

Company & Directors' Information:- N B GLOBAL (INDIA) PRIVATE LIMITED [Active] CIN = U15122UP2012PTC051614

Company & Directors' Information:- U K PAPER MART PRIVATE LIMITED [Strike Off] CIN = U21010MH1998PTC114357

Company & Directors' Information:- S V M PAPER PRIVATE LIMITED [Active] CIN = U21012DL2004PTC124024

Company & Directors' Information:- B N PAPER COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1993PTC053155

Company & Directors' Information:- S G F C MART PRIVATE LIMITED [Active] CIN = U52100UP2015PTC075417

Company & Directors' Information:- K M PAPER PRIVATE LIMITED [Active] CIN = U21012HP1996PTC017834

Company & Directors' Information:- M M PAPER PRIVATE LIMITED [Active] CIN = U21098WB2009PTC135633

Company & Directors' Information:- J-MART PRIVATE LIMITED [Active] CIN = U51909RJ2020PTC069307

Company & Directors' Information:- MART INDIA PRIVATE LIMITED [Strike Off] CIN = U00069BR1988PTC003132

Company & Directors' Information:- MATRIX INDIA PVT. LTD. [Strike Off] CIN = U72200DL2001PTC110824

Company & Directors' Information:- MATRIX PRIVATE LIMITED [Active] CIN = U24220DL2008PTC181451

Company & Directors' Information:- C P PAPER PRIVATE LIMITED [Amalgamated] CIN = U74899DL1994PTC062173

Company & Directors' Information:- G MART COMPANY INDIA PRIVATE LIMITED [Strike Off] CIN = U51909TZ2003PTC010821

Company & Directors' Information:- E INDIA MART PRIVATE LIMITED [Strike Off] CIN = U21019PB2003PTC023587

Company & Directors' Information:- B-MART INDIA LIMITED [Strike Off] CIN = U52190PN1999PLC014059

Company & Directors' Information:- J S PAPER PRIVATE LIMITED [Strike Off] CIN = U21012RJ1990PTC005366

Company & Directors' Information:- A M GLOBAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC261061

Company & Directors' Information:- H-MART PRIVATE LIMITED [Active] CIN = U52510TG2016PTC110679

Company & Directors' Information:- L S A GLOBAL INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098308

Company & Directors' Information:- GLOBAL MATRIX PRIVATE LIMITED [Active] CIN = U72300UP2012PTC052605

Company & Directors' Information:- R L GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U52300HP2014PTC000764

Company & Directors' Information:- G R GLOBAL PRIVATE LIMITED [Active] CIN = U70102KA2013PTC069586

Company & Directors' Information:- H. E. GLOBAL PRIVATE LIMITED [Active] CIN = U72901GJ2016PTC092866

Company & Directors' Information:- PAPER INDIA PVT LTD [Strike Off] CIN = U51109WB1957PTC023601

Company & Directors' Information:- PAPER CORPORATION OF INDIA LIMITED [Dissolved] CIN = U99999MH1945PTC004331

Company & Directors' Information:- U P PAPER CORPN PVT LTD [Strike Off] CIN = U21093WB1945PTC012785

    CS(COMM). No. 1448 of 2016

    Decided On, 31 October 2018

    At, High Court of Delhi


    For the Plaintiff: Nikhilesh Krishnan, Advocate. For the Defendant: M.K. Verma, Advocate.

Judgment Text

1. The plaintiff has filed this suit for recovery of 2,18,66,439/- on the plea they had supplied to the defendant Maplitho paper and hard board for printing of books and it was agreed the defendant shall not make any default in payment of the said material. An order to purchase the Maplitho paper and hard board was placed on 18.10.2013 by the defendant directing the plaintiff to supply 700 MT of Maplitho paper @ 57,250 per MT along with 34 MT of cover stock @ 65,500 per MT. The purchase order dated 18.10.2013 was amended and sent via email dated 21.10.2013. The goods were supplied as per the terms and conditions. The invoices and challans to the defendant company were duly acknowledged. The details of invoices is given in para 13 of the plaint. The C-forms were sent after the receipt of the ordered goods by the defendant.

2. As per the terms and conditions of the purchase order the defendant company was obliged to make payment within 5 days from the date of the receipt of the paper by their nominated printing press. Admittedly the entire stock was received by the defendant by December 2013 however despite various requests made by the plaintiff, the defendant did not release the payment and hence this suit was filed on 17.10.2016.

3. The defendant filed its written statement on 26.04.2017 and rather raised a counter claim stating interalia they had placed an order upon the plaintiff company wherein the plaintiff had to supply the requisite paper for printing of the books within 4/5 days of the purchase order dated 18.10.2013 and even advance payment was made on 23.10.2013. It was urged the entire printing paper was to be supplied strictly as per the time schedule by 20.11.2013 but the plaintiff company though started delivering the paper from 06.11.2013 and continued till 29.11.2013 but thereafter did not supply any paper till 10.12.2013 and as there was a delay in supply of the requisite paper, the printers had further delayed the printing of books which culminated into delay in shipment of books to Ministry of Education, Government of Ethiopia. The Ministry thus retained 20% of the total contract amount and also invoked the bank guarantee furnished to them. Moreso the paper supplied was of inferior quality. Further there is a mismatch of amount as the total purchase price was only 3,45,48,391/- but the invoice for 3,65,48,391/- was raised.

4. Nonetheless the defendant admits the invocation of the bank guarantee was stayed by this Court on an application under Section 9 of the Arbitration and Conciliation Act but it is stated till date the Bank of Baroda has not released the bank guarantee and has also kept the property documents of directors of defendant company as an equitable mortgage, though the Sole arbitrator had directed the bank to release such property documents.

5. It is alleged due to delay and short supply of printing paper by the plaintiff firm and consequently withholding of 20% of invoice amount by the Ethiopian Government, the packing credit limit account of defendant company with Bank of Baroda was declared NPA, and the defendant company is facing recovery proceeding before DRT Chandigarh.

6. On 01.05.2018 the counter claim on these very grounds was filed by the defendant.

7. The question is if the counter claim is within time or beyond limitation as alleged by the learned counsel for the plaintiff. Though the learned counsel for the defendant argued the counter claim can be filed even after the filing of the written statement but it is not an issue here. The issue is if the counter claim filed on 01.05.2018 is barred by limitation. Admittedly the goods were purchased on an order dated 18.10.2013 and were supplied by 20.12.2013, i.e. beyond the date of stipulated delivery. The counter claim is thus premised on compensation for a breach of such condition of contract.

8. Article 55 of the Schedule of Limitation Act 1963 gives a period of limitation as three years from the time when such contract is broken or when the breach in respect of which the suit is instituted occurs or when it ceases.

9. Admittedly as per the defendant if there was any alleged breach of contract, it was on 20.11.2013 and hence the counter claim, if any, ought to have been filed for the losses occurs, within three years from the date when the contract was broken or the breach occurred. No doubt there arose a dispute between the defendant and Ministry of Education, Government of Ethiopia who had withheld 20% of the invoice amount and have been threatening to forfeit the bank guarantee but then the defendant had initiated arbitration against Ministry of Education, Government of Ethiopia and has obtained an award in its favour. Admittedly the bank guarantee was never invoked as there was a stay under Section 9 of the Arbitration and Conciliation Act. The plea of defendant is all this happened due to alleged breach on 20.11.2013 of the agreement by the plaintiff, hence the counter claim, if any, ought to have been filed by 19.11.2016. Filing of a counter claim on 01.05.2018 is thus hopelessly barred by time.

10. The learned counsel for the defendant, even otherwise, has not filed any correspondence between the years 2014 to 2016 wherein the plaintiff had ever conveyed to indemnify the defendant for the losses suffered by it due to such alleged breach and neither there was any serious demand of compensation for alleged damages suffered.

11. It Thomas Mathew vs. Construction Engineer, K.L.D.C. Ltd. 2016(9) SCALE 379 the Court held:

'10. Our attention has been drawn by learned Counsel for the

Appellant to Section 3(2)(b)(ii) of the Limitation Act, 1963.

Section 3 reads as follows:

3. Bar of limitation.-

(1) xxx xxx

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-

(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

11. A perusal of the said section clearly shows that a counter claim is required to be treated as a separate suit and therefore the period of limitation would be three years from the date of accrual of the cause of action.

12. Similarly, Order VIII Rule 6-A of the Code of Civil Procedure provides that a counter claim shall be treated as a plaint and is governed by the rules applicable to plaints.

13. We may also draw attention to Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. MANU/SC/0565/1996 : 1996 (4) SCC 699 wherein it has been held by this Court in paras 4 & 5 that the purpose of introducing Order VIII Rule 6-A was to avoid multiplicity of proceedings and a counter claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver the cause of action and also payment of the requisite court fee.

14. From a reading of the decision rendered by this Court as well as the provisions of the Limitation Act and the Code of Civil Procedure, it is quite clear that in so far as the present appeal is concerned, the cause of action had accrued in favour of the Respondent on the date of the breach of contract i.e. 06.03.1

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996 or before that. For the purposes of deciding the present appeal, we are taking the later date i.e. 06.03.1996 as the date of accrual of the cause of action in favour of the Respondent. 15. That being the position, in view of the provisions of Article 55 of the Limitation Act, it appears to us that the counter claim filed by the Respondent is barred by time.' 12. Thus, in the circumstances, the counter claim filed by the defendant is clearly barred by time and is rejected. The counter claim filed by the defendant be taken off the record. 13. No order as to costs. CS(COMM) 1448/2016 14. The matter is pending before the learned local commissioner for recording the evidence. 15. List for directions before the Roster Bench on 27.11.2018.