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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
M/s. Black Burn Fuels Private Limited – Plaintiff
Versus
M/s. Ind Barath Thermal Power Limited – Defendant
Civil Suit No. 403 of 2017
Decided On : 17-08-2021
Commercial Courts Act, 2015 - Section 2(1)(c)(ii) – Civil Procedure Code,1908 - Order VII, Rule 1 - Suit for recover of amount - Suit dispute is in respect of coal imported from foreign and delivered at Tuticorin Port at India- Whether the Hon’ble High Court, Madras has got territorial jurisdiction to entertain and decide the suit filed by plaintiff against the defendant - Whether the amounts due to plaintiff by the defendant under High Seas Sale Agreements have been paid in full by the plaintiff to the defendant - Whether claim of plaintiff is barred by limitation or not - Whether defendant had entered into the High Seas Sale Agreement - Whether plaintiff is entitled to a sum of with interest at the rate of 18% on the principal sum - Whether the plaintiff is entitled to a sum with interest at the rate of 18% on account of foreign exchange loss - To what other reliefs, the plaintiff is entitled to plaintiff Private Limited Company M/s Black Burn Fuels Pvt. Limited is formerly known Brothers Coal Limited - Carrying on business in iron ore, coal, barytes, bentonite and other minerals for several years - It is operating in the States of Tamil Naduetc - During 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 and the same was agreed by plaintiff - High Seas Sale Agreements and the invoices, the defendant is supposed to pay the invoice amount by RTGS or LC on usance basis - Defendant failed to pay the due in full within time agreed - After giving credit to various payments made by defendant to plaintiff towards principal is due and payable by the defendant –
Finding of the Court:
Liability of the defendant as date of filing the suit, though claimed to be evidence placed by plaintiff not sufficient to prove, how the said figure is arrived. Neither the plaint nor the documents relied by plaintiff explain how the sum substantiate the alleged loss due to foreign exchange difference, no documents placed by the plaintiff - MoU entered between the parties, pending suit is the only document, indicates actual due plaintiff had agreed to settled for towards full satisfaction as against actual due settlement did not fructified - Actual due payable was reconciled between parties and ascertained - Court finds in the purchase order Ex.P-9 issued by defendant, it is agreed by parties that payment shall be by RTGS or LC on Usance basis within 60 days from completion of vessel discharge at Tuticorin Port. In case of delay - Defendant shall reimburse to plaintiff actual usance interest paid, subject to a maximum - 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 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 –
Result: Civil Suit is partly allowed
JUDGMENT :
G. JAYACHANDRAN, J.
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 and (c) the costs.
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 hug
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