2021 (4) TMI 268 - CALCUTTA HIGH COURT - GST

Head Note / Extract:
E-auction - successful bidder for sale of 489.659 metric tons (MT) of scrap materials - the petitioner claims that altogether 434.659 MT of such scrap materials, out of the total of 489.659 MT, was delivered to the petitioner - Seeking direction upon the respondents to deliver the balance 55MT of scrap materials, in the alternative to refund the sale value together with GST, TCS and interest - HELD THAT:- The admitted position, as per the Joint Note dated February 9, 2019 (annexed at page 111 of the writ petition), is that some parts of the scrap lying on the river bed and muddy soil could not be recovered. It further mentioned that, after clearing the earth, if covered materials were found, a fresh programme for witnessing the balance quantity might be done with approval of the competent authority. Such Joint Note, being an admitted document, clearly indicates that the entire materials were not supplied to the petitioner - Also, no reliance can be placed on the internal communications annexed to the supplementary affidavit to the affidavit-in-opposition. What was the quantum of undelivered material to the petition? - HELD THAT:- Since the chart produced in court is contrary to the pleadings in the writ petition, the same cannot be taken as proof, even prima facie, with regard to the quantity of undelivered material. However, since the pleadings of the writ petitioner that 55 MT was the quantum of undelivered material could not be controverted by the respondents, it has to be taken that the quantum of short delivery was 55 MT and not 63.457 MT. That apart, the calculation of 63.457 MT was based on receipts issued by private weighbridges, which cannot be lent much evidentiary weight insofar as the quantum of payment is concerned, in the absence of further corroborative evidence - it is found from the materials and pleadings on record that the respondents were liable to deliver 55 MT of scrap material to the petitioner as per the notice inviting tender as well as the Sale Release Order. Since the specific stand of both the parties is that there was no further development regarding recovery of the balance scrap material after February 9, 2019, when the Joint Note was executed, there does not arise any scope of directing the respondents to deliver such balance material. Thus, no option is left but to direct refund of the costs of such balance material of 55 MT, along with interest, to the petitioner - The respondents shall pay an amount of ₹ 14,11,630/-, along with interest at the rate of 6 per cent per annum from February 9, 2019, till the date of payment, to the petitioner. Such amount will be paid within 90 days from date. Petition allowed.