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M/s. Swiss Singapore India Pvt Ltd., Rep. by its Manager, Ankur Pungliya 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:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

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

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:- SWISS SINGAPORE INDIA PRIVATE LIMITED [Active] CIN = U51101GJ2013FTC086557

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

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

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:- 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:- INDIA THERMAL POWER LIMITED [Active] CIN = U04010MH1993PLC171444

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

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

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

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

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:- 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:- 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:- 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:- 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:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

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

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:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

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

    C.S.(Comm.Div). No. 363 of 2018 & A. Nos. 7966 & 7967 of 2019

    Decided On, 11 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

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



Judgment Text

(Prayer: Civil Suit is filed under Order IV Rule 1 of Original Side Rule read with Order VII Rule 1 of C.P.C.,a). Directing the defendant to pay a sum of Rs.11,05,43,759/- (Rupees Eleven Crores Five Lakhs Forty Three Thousand Seven Hundred and Fifty Nine Only) as on 31.05.2018 on the Principal sum of Rs.7,71,82,800/- (Rupees Seven Crores Seventeen Lakhs Eighty Two Thousand and Eight Hundred only) with interest at the rate of 18% per annum from the date of plaint till the day of payment in full to the plaintiff.b). For the Costs of the suit.)1. The plaintiff is a Private Limited Company having office at Coimbatore and trading in coal. The suit is filed as a Commercial Dispute for recovery of Rs.7,17,82,800/- towards principal and Rs.3,87,60,959/- towards interest at the rate of 10.5% due and payable by the defendant for the coal sold.2. The plaint averment is that, during the month of November-2014, the defendant approached the plaintiff for purchase of streaming, Non-coking coal in bulk of Indonesian Origin and placed the purchase order for 55000 MT +/- 10% of coal. The plaintiff and defendant entered into an High Seas Sales (HSS) Agreement on 04.11.2014 for selling 55000 MT of coal at the rate of Rs.3156.48/- PMT. Subsequently, the defendant placed purchase order dated 08.01.2015 for further 55000 MT of coal on the same specification agreed earlier. The High Seas Sale agreement was entered on 13.01.2015. The price for the coal was agreed as Rs.3202.12 PMT. As per the trade practise, the HSS agreement and other connected documents in original were given to the Customs department for clearing the Goods from the Port of Tuticorin. The vessels MV Densalion and MV Riva Wind completely discharged the goods at Tuticorin Port on 16.11.2014 and 25.01.2014 respectively. As per the terms of the HSS agreement, the defendant is liable to pay for the goods sold within 60 days from the date of delivery.3. In spite of expiry of the due date of payment, the defendant did not clear their dues in full. When the defendant was informed through letter dated 14.03.2015 that as per the books of accounts, the amount due and payable by the defendant as on 29.02.2015 is Rs.11,05,68,001/-, the defendant confirmed the same. After giving credit to various subsequent payments made by the defendant, the due payable on 31.05.2018 was Rs.7,17,82,800/-. Several meeting between the plaintiff and the defendant for clearing the dues yielded no result. Hence, the plaintiff filed C.P.No.372 of 2016 before the High Court, Hyderabad, for winding up the respondent company. After issuance of statutory notice, the matter is pending.4. While so, a settlement agreement was arrived on 28.09.2017 between the plaintiff, defendant and one M/s.Star Thermal Power Pvt Ltd (STPPL), as against the actual due of Rs.7,15,68,001/- payable by the defendant, STPPL agreed to pay Rs.5,72,54,401/- towards full settlement on or before 25.12.2017. The said settlement failed since STPPL did not pay the agreed amount within the due date and informed the plaintiff that it will not be a position to settle the outstanding due of the defendant. STPPL requested not to proceed with the legal proceedings before the High Court of Hyderabad till an alternate settlement proposal is agreed mutually. However, no alternate settlement proposal was forthcoming neither the defendant paid the dues. Hence, the instant suit for recovery of money.5. The defendant received the suit summons on 04.07.2018. The written statement was not filed within the time prescribed under the Commercial Courts Act. However, filed two applications one to refer the dispute to arbitrator (Application No.7966 of 2019 ) and other to reject the plaint under Order VII Rule 11 of C.P.C., (Application No.7967 of 2019). On filing common counter by the plaintiff, these applications were not taken up for consideration. Since they were filed after 120 days from the date of receipt of the suit summons.6. The defendant, who lost its right of filing written statement, filed its affidavit of admission and denial of documents and also cross examined the plaintiff witness P.W-1. Through this witness the plaintiff has marked 16 documents. Except Ex.P-13 the settlement agreement dated 28.09.2017 and Ex.P-14, the notice issued by STPPL intimating the failure to pay the agreed amount and request to settle the dues, rest of the documents are secondary evidence either photocopy or certified copy.7. The Learned Counsel for the plaintiff submitted that, Ex.P-2 and Ex.P-4, are the purchase orders placed by the defendant. Pursuant to the purchase orders, the parties entered into the HSS agreements which are Ex.P-3 and Ex.P-5. The defendant, in Ex.P-7 had confirmed due of Rs.11,05,68,001/- payable as on 29.02.2016. To the statutory notice, Ex.P-10 dated 02.05.2016 demanding Rs.l3,20,34,807/- together with interest at the rate of 10.5%, the defendant through its lawyer sent reply Ex.P-11 dated 13.05.2016 admitting the liability and undertaking to settle the arrears. After initiating the winding up proceedings before the High Court, Hyderabad, the defendant came forward to settle the dues through M/s.Star Thermal Power Pvt Ltd (STPPL) and entered into the settlement agreement dated 28.07.2018. As against the actual due of Rs.7,15,68,001/- as on 27.09.2017 it was agreed by the parties that STPPL will pay to the plaintiff Rs.5,72,54,401/- before 25th December 2017. The settlement agreement Ex.P-13 did not fructify and STPPL which was supposed to pay the said amount on behalf of the defendant, invoking clause 9 of the settlement agreement the agreement was terminated.8. The defendant has admitted the due payable in unequivocal terms in the settlement agreement and in the earlier letters. The defendant is having its Office at Chennai and the subject business transactions were dealt by the Chennai Office of the defendant. The suggestions to the plaintiff witness regarding the place of transactions did not impeach the case of the plaintiff that the defendant carry on business at Chennai and the negotiations took place in Chennai. Therefore, the submission made by the defendant to reject the plaint for non disclosure of cause of action is not sustainable.9. Regarding the Application for referring the dispute to arbitration, the Learned Counsel for the Plaintiff submitted that, the settlement agreement dated 27.09.2017 is a contingent agreement. The implementation of said agreement was subject to the completion of the arrangement between STPPL and the defendant with 25.12.2017. In the letter dated 12.12.2017 (Ex.P-14), STPPL has informed the plaintiff that due to unforeseen circumstance, the transaction contemplated between the defendant Company, its shareholder and STPPL will not be completed on or before 25.12.2017. Therefore, invoking clause 9 of the agreement, STPPL terminated the agreement. As per clause 9, once the agreement is terminated, the status quo ante will be restored. The arbitration clause might have come into effect, had the arrangement between the defendant and STPPL got completed by 25.12.2017. Since, the said arrangement between the defendant and STPPL never materialised, the agreement got vitiated. The defendant had become liable for the actual dues STPPL by virtue of under clause 9(d) got fully exonerated from any liability. The plaintiff cannot have recourse to STPPL for any claim in relation to the actual dues or any other payment payable by the defendant from the date of receipt of the intimation.10. The Learned Counsel for the defendant, submitted that the relief sought under the two applications are based on questions of law, even though, the defendant had failed to file the written statement in time and right to file written statement got forfeited, question of cause of action and jurisdiction need to be satisfactorily explained by the plaintiff, which in this case conspicuously absent. Therefore, the suit is liable to be dismissed for lack of jurisdiction.11. According to the Learned Counsel for the defendant, firstly, plaint does not disclose any cause of action within the jurisdiction of this Court. Secondly, the defendant is not actually carrying on business within the jurisdiction of this Court. Having office at Chennai does not mean the defendant is carrying on business at Chennai. No dealing in respect of the sales, which are subject matter of the suit took place in Defendant’s Chennai Office. Thirdly, the settlement agreement dated 28.09.2017 is in substitution ofall the earlier arrangements and agreements (clause 5). Therefore, applying the Doctrine of novation, the terms of the new agreement shall prevail. The new agreement namely the settlement agreement, clause 22 oust the Civil Court jurisdiction and specify that any dispute arising out of or in connection with this agreement shall be referred to arbitration in accordance with arbitration and conciliation (Amendment) Act, with the place of arbitration at Chennai.12. The Learned Counsel for the plaintiff submitted that at the outset, two applications filed after the time limit prescribed for filing written statement. Having forfeited the substantial right to file written statement, these two applications are not maintainable. Relying on the judgment of the Delhi High Court SSIPL Lifestyle Private Limited -vs- Vama Apparels (India) Private Limited and Another reported in 2020 SCC Online Del 1667 = (2020) 267 DLT 467, it was submitted that, the defendant having admitted the liability at all time and before all forum, having its Office at Chennai where transactions took place, the plea of non disclosure of cause of action and want of jurisdiction are defences to delay the proceedings. Ouster of Jurisdiction and cause of action are at the most mixed question of fact and law. Not pure question of law. The settlement agreement entered between the plaintiff, defendant and STPPL is a contingent contract. Under clause 9 of the settlement agreement (Ex.P-13), the parties have agreed that, in case, the transaction contemplated under the arrangement between STPPL and the company (Defendant herein) or its shareholders delayed beyond 25th December 2017, for the payment of outstanding dues or does not materialise for any reason, then notwithstanding anything contained in the agreement, the Company (defendant herein) shall become liable for making the payment of the actual dues in terms of the supply agreements. Hence, arbitration clause in the settlement agreement is not applicable to the facts of the case.(i). Clause 5 of the Settlement agreement (Ex.P-13) reads as below:-The parties hereby agree that, subject to payment of the outstanding dues in the manner provided herein, as on Settlement Date:a. All arrangements including the Supply Agreement(s) (excepting this agreement) in relation to the outstanding Dues or supply of the product shall stand terminated.b. The parties further covenant that the rights, obligations and claims under the supply agreement(s) shall be terminated and cancelled and the Trade Creditor shall be deemed to have fully and completely discharged the Company and STPPL from the same.c. The Trade Creditor shall be deemed to have:i). Discharged the Company and STPPL from the obligation to make any further payments in relation to the Outstanding Dues, supply agreement(s), supply of products or any document executed in connection therewith.ii). Relinquished all its right, interest or claims of whatsoever nature against the Company and STPPL in relation to the Outstanding Dues, supply Agreement(s), supply of Products or any document executed in connection therewith.d. All and any documents, agreements, notices, letters, correspondences, etc., (excepting this agreement) executed or signed between the parties (a) pursuant to or in relation to the supply agreement(s) or in relation to the product or outstanding dues; (b). to fulfill the obligations or purpose of the supply agreement(s) for and on behalf or at the request of the Trade Creditor or the Company, shall stand cancelled with no further notice or act and no liability, disability, etc., shall accrue to the Company or STPPL.(ii). Clause 9 of the settlement agreement reads as below:-The parties agree that, in addition to any other right, in case the transaction as contemplated under the arrangement between STPPL and the Company or its shareholders delayed beyond 25th December 2017, for the payment of outstanding Dues or does not materialise for any reason and even if the same is under dispute or in the event of any dispute between the trade Creditor, the Company and STPPL, then notwithstanding anything contained in this Agreementa. STPPL shall intimate the Trade Creditor in writing about the consequences of the delay or termination or non-materialisation or delay of the said arrangement, with a copy to the Company. The parties agree that the decision of STPPL on termination or non-materialisation or delay of the said arrangement shall be final and binding.b. STPPL shall not be liable to make any payment towards outstanding dues.c. The Company shall become liable for making the payment of the Actual Dues in terms of the Supply Agreement(s).d. The Trade Creditor shall have no recourse to STPPL for any claim in relation to the Actual Dues or any other payment from the date of receipt of the intimation.(iii). Clause 22 of the settlement agreement reads as below:-22. Any dispute arising out of or in connection with this agreement shall be referred to arbitration in accordance with Arbitration and Conciliation (Amendment) Act (Act), 2015 with the place of arbitration in Chennai. The dispute shall be adjudicated by a sole arbitrator to be appointed in accordance with the Act. The language of the arbitration shall be English.13. Invoking clause 9 of the settlement agreement, the STPPL vide letter dated 12.12.2017 (Ex P-14), STPPL had informed the plaintiff and the defendant that, they will not be able to settle the outstanding within the agreed date i.e., 25.12.2017. Clause 9(c) of Ex.P.13 says, in the event of STPPL invoking clause 9, the defendant company will become liable to make payment of the actual dues. Clause 9 (d) says, the trade creditor (the plaintiff herein) shall have no recourse to STPPL for any claim in relation to the actual dues in the terms of the supply agreement.14. If really, the defendant had any right to invoke the arbitration clause under this settlement agreement, the defendant would have invoked this clause soon after the intimation received from STPPL withdrawing its commitment to clear the dues of the defendant. The reading of the settlement agreement as a whole indicates the arbitration clause for enforcement of the terms of the settlement agreement shall come into effect only if the arrangement between the STPPL and the Company (the defendant herein) materialised.15. In this case, obviously the arrangement between the defendant and STPPL, which has the pre-requisite for the settlement agreement (Ex.P-13), did not materialised. The parties to the agreement did not pursue the settlement agreement any further. As agreed under this agreement, the defendant had become liable to pay the actual dues.16. Carrying on business:-The Learned Counsel for the plaintiff rely upon the purchase order where the defendant is shown the Chennai Office as its address, apart from, the Corporate Office at Hyderabad. Whereas, the Learned Counsel for the defendant would submit that the Chennai Office is functioning as Post Office and no effective administration is carried at Chennai Office.17. The following judgments are relied by the defendant.(i). Clan Line Steamers Ltd -vs- Gordon Woodroffe and Co.(Madras) (Pte.) and others reported in AIR 1980 Mad 73(ii). Urooj Ahmed v. Preethi Kitchen Appliances Private Limited reported in (2013) 6 CTC 247.(iii). J.D.John and others -vs- Oriental Government Security Life Assurance Company Limited reported in [1928 SCC Online Mad 347].18. Ex.P.2 and Ex.P.4 are photocopies of the purchase orders emanated from the defendant. In these purchase orders, the Corporate Office at Hyderabad and Chennai Office at Nandanam are mentioned. In HSS agreement (Ex.P.3) E-stamp is purchased from National Capital Territory of Delhi. 55,000 MTs of coal transshipment through vessel MV DENSA LION and consideration as mentioned is Rs.17,36,06,400/-. Ex.P.5 is the 2nd HSS agreement dated 13.01.2015 for 53,250.00 MTs of coal transshipment through vessel MV RIVA WIND. In this HSS agreement, there is no signature of the buyer. Hence, it cannot be looked further for any evidence. The other communications between the parties emanated from the plaintiff ar

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e addressed to the Defendant’s Hyderabad address. The settlement agreement Ex.P.13 is entered at Chennai. It is between three parties, all having its Office at Chennai. On assessing the facts based on the above documents, there is no specific evidence to exclude jurisdiction of this Court on the ground that the defendant did not carry on business within the local limits of this Court or in this particular transaction, the Chennai Office of the defendant had no role or acted only as as ‘Post Office’. Contrarily, even according to the defendant’s purchase order, they have Office at Chennai. P.W.1 had deposed transaction and negotiation took place at defendant’s Chennai Office. This assertion not impeached in the cross examination. Hence, this Court holds that since the defendant carrying on business within the jurisdiction limits of this Court, leave to sue is not required and the suit is maintainable within the jurisdiction of this Court.19. The defendant has not denied the delivery of goods and its utilisation. In fact, in the settlement agreement (Ex.P.13), due of Rs.7,15,68,001/- is admitted. Though this settlement deed did not materialised, the money due has been ascertained and agreed upon by the defendant. Even thereafter to the notice caused by the plaintiff, the defendant has not denied the liability.20. As far as the claim of 18% interest, this Court finds that under the High Seas Sale Agreement (Ex.P.3 & Ex.P.5), the defendant has agreed to pay maximum 10.5% interest for the delayed payment. Therefore, the plaintiff is entitled only for 10.5% interest.21. Hence, the plaintiff entitled for a principal sum of Rs.7,17,82,800/- with interest at the rate of 10.5% p.a., from the date of plaint, till the date of realisation. Accordingly, the Suit is Allowed with costs. Consequently, connected Applications are closed.
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