2021 (4) TMI 268 - HC - GST

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 Rs. 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.

Summary

Issues:
1. Dispute over delivery of scrap materials following a successful e-auction.
2. Claim for refund or delivery of balance quantity of scrap materials.
3. Discrepancy in the quantity of undelivered material claimed by the petitioner.
4. Legal liability of the respondents for undelivered scrap materials and related payments.

Analysis:
1. The petitioner won an e-auction for scrap materials but claimed that only part of the total quantity was delivered. The petitioner sought delivery of the remaining 55 MT or a refund. The petitioner supported the claim with various documents indicating partial delivery.

2. A Joint Note acknowledged that some materials could not be recovered due to construction work. The petitioner communicated the undelivered quantity to the respondents and requested a refund. The respondents denied any shortfall and contended that the full quantity was delivered. The Court found discrepancies in the respondents' arguments based on the Joint Note and other documents.

3. A chart presented by the petitioner in court indicated a different undelivered quantity compared to the consistent claim of 55 MT. The Court noted the discrepancy and emphasized the importance of maintaining consistency between pleadings and evidence presented in court.

4. The Court concluded that the respondents were liable to deliver the remaining 55 MT of scrap materials to the petitioner. The calculation based on the sale price per metric ton determined the amount owed to the petitioner. Interest at 6% per annum was awarded from the date of the Joint Note for the principal dues. No additional amounts for GST or TCS were awarded due to the payment made without GST. The Court directed the respondents to refund the cost of the undelivered material along with interest to the petitioner within 90 days.

5. The judgment allowed the petitioner's claim, ordering the respondents to pay the specified amount with interest within the stipulated timeframe. In case of default, additional interest would be payable. No costs were awarded, and urgent certified copies of the order were to be provided to the concerned parties.