M/s.Reliance Industries Ltd v. M/s.Bharat Pipes and Fittings

.. Plaintiff versus M/s.Bharat Pipes and Fittings Ltd through official liquidator ..Defendant --------------------------- Ms. A.Thakkar i/b. M/s. Purnanand & Co., for Plaintiff. Mr. Sathelkar, for Official Liquidator. CORAM: S.J.KATHAWALLA, J. DATED: MARCH 25, 2011 P.C. This Summary Suit is filed by the plaintiff against the defendant company M/s.Bharat Pipes and Fittings Ltd, which is wound up by an order dated 16th July, 2009. The Official liquidator , High Court, Bombay was appointed as the Provisional liquidator of the Defendant company on 2nd March,

1996. At the time of filing of the Suit on 22nd November, 1996, the plaintiff was not aware about the appointment of provisional liquidator. In view thereof, after filing of the Suit, the plaintiff sought leave under section 446 of the Companies Act, 1956 to continue the Suit against the official liquidator 2

904.s.4517.96.sxw which leave was granted by an order dated 24th November,

2006. Thereafter by an order dated 16th July, 2009 the Defendant company was ordered to be wound up and the official liquidator was appointed as liquidator of the company.

In the above suit, the Plaintiff has prayed for an order and decree against the defendant to pay to the plaintiff a sum of Rs.55,25,578/-, with further interest on the sum of Rs. 30,72,765/- and on the sum of Rs.2,97,380/- @24% per annum from the date of filing of the Suit till payment and/or realization.

The plaintiffs have submitted that pursuant to the order placed by the defendant on the plaintiff between 25th November, 1993 and 16th December, 1993, the plaintiff sold, supplied and delivered to the defendants diverse quantities of REON “PVC RESIN” (herein after referred to as the “said goods”) in respect of which the plaintiffs raised 8 invoices for an aggregate sum of Rs.30,92,750/-. The defendants duly accepted the said goods and acknowledged receipt by signing the said invoices without raising any dispute as to the quantity, quality or price in respect thereof. The defendants also paid to the Plaintiffs a sum of Rs.19,985/- out of the total value of the 3

904.s.4517.96.sxw said Invoices of Rs.30,92,750/-. However, the Defendant failed and neglected to pay the balance amount of Rs.30,72,765/- to the Plaintiff.

According to the plaintiff as per the condition of sale agreed between parties, the Defendants were to submit a declaration in the prescribed form “C”. In view thereof the plaintiff charged to the defendant central sales tax at the rate of 4 % as against the normal rate of 10%. The defendant failed and neglected to submit to the plaintiff the said sales tax ‘C’ forms. The plaintiff has submitted that they are therefore entitled to a further amount of Rs.2,97,380/-, from the defendant under the said 8 invoices.

The plaintiff by it’s letter dated 25th September, 1995 called upon the defendant to make payment of the outstanding amount mentioned therein within a period of 21 days from the receipt of the said letter, failing which the plaintiff will be constrained to take legal proceedings against the defendant. The defendant failed to respond to the said notice, because of which the plaintiff filed the present Suit under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908. 4

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From the aforesaid facts I am convinced that the Defendant has no defense to the claim of the Plaintiff in the present suit. The Summons for Judgment was served on the liquidator on 11th February, 2011. No reply is filed by the official liquidator in response to the same. The learned Advocate appearing for the liquidator states that he has nothing to submit on the merits of the plaintiff’s case. In view thereof the Suit is decreed and the following order is passed. ORDER The defendants are ordered and decreed to pay to the plaintiff a sum of Rs.55,25,578/- with further interest on the sum of Rs.30,72,765/- and on the sum of Rs.2,97,380/- at the rate of 18% per annum from the date of filing of the Suit till payment and/or realization thereof. The Defendant shall also pay the costs of the suit to the Plaintiff. The Suit is accordingly disposed of.

( S.J.KATHAWALLA, J )