Mr.Gapparov Abdivakhab v. M/S.Golden Trees Biotech Pvt
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20.10.2022
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR Mr.Gapparov Abdivakhab .. Plaintiff Vs.
1. M/s.Golden Trees Biotech Pvt. Ltd., Rep. By its Managing Director Mr.Nasser Ali Having Office at No.119, Bricklin Road Grama Street, 1st Floor, Purasaiwalkam Chennai - 600 007
2. Mr.Nasser Ali Managing Director M/s.Golden Trees Biotech Pvt. Ltd., No.119, Bricklin Road Grama Street, 1st Floor, Purasaiwalkam Chennai - 600 007 .. Defendants This Civil Suit is preferred, under Order IV Rule 1 of the Original Side Rules read with Order VII Rule 1 CPC directing the 1st defendant to pay a sum of Rs.92,51,860/- along with future interest at 24% p.a on 1/23
Rs.75,30,000/- from the date of plaint to till the date of realization, directing the 1st defendant to pay a sum of Rs.90,00,000/- towards damages and for the costs of the suit.
For Plaintiff : Mr.K.V.Sundararajan along with Mr.Vishal.R & Mr.Sivamanikandan For Defendants : Set ex parte
JUDGMENT
Captioned suit is listed under the cause list caption 'FOR ORAL ARGUMENTS'.
2. The proceedings made by Hon'ble predecessor Judge on 25.08.2022 and thereafter, by me in the listings on 27.09.2022, 29.09.2022, 11.10.2022, 18.10.2022 are of relevance and a scanned reproduction of these proceedings are as follows: 2/23
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3. The above proceedings are telltale qua the trajectory the captioned matter has taken.
4. Mr.K.V.Sundararajan, learned counsel on record for sole plaintiff along with Mr.Vishal.R and Mr. Sivamanikandan is before this Commercial Division. Learned counsel has placed before this Commercial Division a convenience set. One Kishori Lal, Power of Attorney Agent of plaintiff, was examined as PW1 and he was crossexamined by the counsel for plaintiff on 03.12.2019. Thereafter, the trajectory the matter took has been captured in the proceedings made in the previous listings which have been set out supra. 11/23
5. Learned counsel submits that the captioned suit is one for recovery of money and usual prayer for costs and residuary limb of prayer also form part of the prayer paragraph. Learned counsel submits that money was paid towards supply of cashew nuts by the defendants but the supply ultimately did not happen. In this regard, learned counsel draws the attention of this Commercial Division to Ex.P2, which is a contract dated 29.03.2013 vide which 18 metric tonnes of cashew nuts had to be supplied by the defendants to the plaintiff. Ex.P3 dated 29.03.2013 is the proforma and Ex.P4 dated 02.04.2013 is the receipt evidencing receipt of cash. Thereafter, the defendants sold the consignment to another third party and did not supply to the plaintiff. This resulted in plaintiff issuing a notice dated 26.11.2013 (Ex.P9).
This notice from the plaintiff met with a reply dated 20.12.2013 (Ex.P10) from the defendants. In this reply, the defendants do not dispute the nonsupply. They go a step further and submit that payment will be made as soon as they receive monies from the third party purchaser to whom they had sold the consignment. Considering the clinching nature of these documents, this Court deems it appropriate to scan and reproduce Ex.P7, Ex.P8 and Ex.
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6. The last three paragraphs of Ex.P10 i.e., wherein the defendants do not dispute non-supply and say that payment will be made on receipt of monies from the third party to whom they have sold the consignment is articulated. However, notwithstanding such plea, defendants have made a counter claim claiming that first defendant has paid a sum of Rs.1,19,49,000/- towards procurement. Such amounts have been incurred only pursuant to the second contract entered into with the plaintiff and therefore, plaintiff is liable to pay this amount. Defendants have claimed a sum of little over Rs.1.50 Crores, i.e., Rs.1,50,55,740/- together with further interest. Plaintiff has filed a written statement (reply to the counter claim) inter-alia contending that the plea that the first defendant has paid Rs.1,19,49,000/- towards procurement and also incurred expenses towards handling charges are false and such documents have been created only for the purpose of this case. It was also contended that the second contract has nothing to do with the first contract.
7. This Court carefully considered all the exhibits, namely Exs.P1 to P12 and the deposition of PW1. There is nothing adverse in the deposition and suffice to say that PW1 has withstood the crossexamination. The deposition of PW1 is in tune and tandem with the 18/23
pleadings in the plaint and it buttresses the plaintiff's claim insofar as the money claim for refund but there is no document as regards damages. Learned counsel drew the attention of this Court to Ex.P8 and made a faint attempt to say that this may buttress the damages claim. In the considered view of this Commercial Division, there is nothing to demonstrate that the plaintiff has suffered actual loss owing to nonsupply.
8. No elucidation is required to say that a counter claim becomes a plaint by itself. This means that burden of proof is on the defendant who makes the counter claim insofar as the counter claim is concerned. This burden never shifts, only the onus may swing like a pendulum. In the case on hand, defendants have not let in evidence and discharged the burden of proof cast on them to show that the alleged expenditure towards procurement and the expenses qua second contract were actually incurred and that the second and first contracts are dovetailed. If only defendants had discharged this initial burden of proof, onus would have shifted to plaintiff but that did not happen. Therefore, it is clear that defendants have not discharged the burden of proof qua counter claim 19/23
and therefore the counter claim inevitably fails and cannot but be dismissed.
9. To be noted, prayer paragraph in the plaint is paragraph 16 and the same reads as follows:
16. The Plaintiff therefore prays that this Hon'ble Court may be pleased to pass a judgment and decree against the Defendants:
a. directing the 1st defendant to pay a sum of Rs.92,51,860/- along with future interest at 24% p.a on Rs.75,30,000/- from the date of plaint to till the date of realization;
b) directing the 1st defendant to pay a sum of Rs.90,00,000/- towards damages;
c) for the costs of this suit and d) for such other reliefs as this Hon'ble Court may deem fit to pass.
10. The sequitur of the narrative, discussion and dispositive reasoning thus far is, limb (a) is acceded to the extent that there will be a decree for Rs.92,51,860/- together with interest @ 6% p.a on Rs.75,30,000/- from the date of plaint till the date of realization. To be noted, this future interest at 6% is in tune and tandem with Section 34 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity). As regards limb (b) is concerned, the same is negatived as there is no 20/23
document to support damages. As regards limb (c) is concerned, costs are awarded as the plaintiff has been tossed around. This Court has taken the view that compensatory costs for vexatious defences can be awarded under Section 35A in cases where defendants play ducks and drakes with the plaintiff and the legal proceedings. The case on hand appears to be one such typical case as the defendants have entered appearance, filed written statement, cross-examined PW1 and thereafter, allowed the matter to go ex parte. Therefore, this would also qualify as a vexatious way of defending a suit. To be noted, sub-section (2) of Section 35-A of CPC has been amended vide 'The Commercial Courts Act, 2015 (4 of 2016)' [hereinafter 'CCA' for the sake of brevity]. Therefore, there is no cap qua compensatory costs under Section 35-A of amended CPC.
Considering the nature of the matter, this Court deems it appropriate to award compensatory costs of Rs.1,00,000/- [Rupees One Lakh only] in addition to the usual costs for which bill of costs should be filed by the plaintiff. To be noted, this compensatory costs is awarded under limb (d) i.e., usual residuary prayer limb in a prayer. As regards counter claim, the same is dismissed.
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Captioned suit decreed with costs, compensatory costs in the manner and to the extent indicated above and counter claim of defendants is dismissed with costs.
20.10.2022 gpa 22/23
M.SUNDAR, J.
gpa Judgment in C.S.No.370 of 2014 20.10.2022 23/23