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2021 Supreme(Online)(MAD) 31846
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 05.08.2021 Pronounced on : 11.08.2021 Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.S.(Comm.Div).No.355 of 2018 and A.Nos.7970 & 7971 of 2019 M/s.Cetex Petrochemicals Limited, Represented by its Chief Financial Officer, Mr.S.Somasundaram, Having Registered Office at Manali, Chennai – 600 068. ... Plaintiff /versus/
M/s.Ind Barath Thermal Power Ltd., Rep. by its Managing Director, Having its Registered Office at No.20, Chamiers Road, Nandanam, Chennai – 600 035. ... Defendant 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.11,10,28,317/- (Rupees Eleven Crores Ten Lakhs Twenty Eight Thousand Three Hundred and Seventeen Only) as on 08.05.2018 on the Principal sum of Rs.5,68,15,877/- (Rupees Five Crores Sixty Eight Lakhs Fifteen Thousand Eight Hundred and Seventy Seven only) together 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.
For Plaintiff : Mr.Abdul Hameed, for M/s.A.A.V.Partners For Defendant : Mr. Anirudh Krishnan
JUDGMENT
The plaintiff is a Private Limited Company having its registered Office at Chennai. According to the plaintiff, it is trading in coal for past several years and during the month of October – 2014, the defendant approached the plaintiff for supply of Steaming, Non Coking Coal in bulk of Indonesian Origin. Pursuant to that, the plaintiff and defendant executed the following documents at Chennai.
| S.No. | PARTIES | DESCRIPTION |
| 1. | Defendant to Plaintiff | Purchase Order dated 10.10.2014 for supply of 55,000 MT +/- 10% of “Goods” on terms and conditions contained therein. |
| 2. | Plaintiff and Defendant High Seas Sale Agreement dated 10.10.2014 for selling 54,900 MT of “Goods” at the price of Rs.3058.12/- PMT on terms and conditions therein. | |
| 3. | Plaintiff to Defendant | High Seas Invoice No.14210001 dated 14.10.2014 for a total quantity of 54,900.00 MTS of “Goods” for a total price of Rs.16,78,90,788.00 |
2. As per trade practice, the High Seas Sale agreement and connected documents in original were handover to the defendant for Custom Clearance. As per the terms of the High Seas Sale agreement and purchase order, the invoice amount should be paid within 60 days. In the instant case, the coal was discharged on 16.10.2014 at Tuticorin Port, from the vessel MV. LMZ PLUTO. The plaintiff raised debit notes for the difference in foreign exchange and interest on Letter of Credit discounting charges. On 02.06.2016, the plaintiff sent a e-mail to the defendant enclosing the statement of accounts and sought for confirmation of balance. The defendant confirmed the balance of Rs.7,18,07,342/- payable to the plaintiff. After giving credits to various payments made by the defendant as on 08.05.2018, the sum due is Rs.11,10,28,317/-. Several meetings took place between the plaintiff and the defendant at Chennai Office, for payment, but did not yield any result. The settlement agreement dated 16.10.2017 was entered between the defendant, plaintiff and M/s.Star Thermal Power Private Limited., as against the total liability of Rs.5,68,15,877/-. The plaintiff agreed for a sum of Rs.4,54,52,701/- towards the full satisfaction. M/s.Star Thermal Power Private Limited, had agreed to pay the said amount on or before 25.12.2017, but failed to settle the amount and therefore, by efflux of time, the settlement agreement has come to an end. Hence, suit for recovery of Rs.11,10,28,317/- due as on
08.05.2018 and 18% interest on the Principal sum of Rs.5,68,15,877/- and costs.
3. The defendant has not filed any written statement. However, two applications (A.Nos.7970 of 2019 & 7971 of 2019) filed for rejecting the plaint and refer the matter to arbitrator.
4. Pending these two applications, the plaintiff witness was examined.
12 Exhibits were marked. The defendant cross examined the plaintiff witness.
5. The Learned Counsel appearing for the plaintiff would submitted that the suit transactions took place within the jurisdiction of this Court where the defendant having its Office. The coal was delivered to the defendant at Tuticorin as per the High Seas Invoice (Ex.P.2). The defendant confirmed the balance of Rs.17,19,07,342/- as on 31.12.2014 and same is marked as Ex.P.3. Thereafter, various payments were made by the defendant and statement of accounts (Ex.P.9) indicates that a sum of Rs.11,10,28,317/- as on 08th May 2018 is due and payable by the defendant.
6. The parties entered into a settlement of agreement (Ex.P.6) dated
16.10.2017, wherein, M/s.Star Thermal Power Private Limited agreed to settle the plaintiff a sum of Rs.4,54,52,701/- towards full and final settlement on or before
25th December 2017. This settlement agreement (Ex.P.6) did not materialised.
7. Pending suit, the parties entered into a Memorandum of Understanding (Ex.P.11 and Ex.P.12), wherein, the plaintiff agreed to settle the dues for Rs.3,12,44,000/- as against the claim of Rs.5,68,07,000/-. However, this memorandum of understand
