TMI Blog2015 (7) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... tion where these goods are and how they valued it out ₹ 3 crores (approximately). In the circumstances, the defence raised by the defendants in my view, are bogus, illusionary and moonshine. Interest - HELD THAT:- The invoices raised does provide interest @ 30% p.a. and therefore, the defendants are also entitled to the contractual rate of interest upto the date of filing of the suit. Application disposed off. - SUMMONS FOR JUDGMENT NO.108 OF 2014 IN SUMMARY SUIT NO.626 OF 2014 - - - Dated:- 16-7-2015 - K. R. SHRIRAM, J. Ms.Armin Wandrewala i/by M/s.Singhania co. for plaintiffs/applicant Mr.Vaibhav Sugdare i/by Katariya Associates for defendant JUDGEMENT 1 The plaintiffs have filed the present suit based on different contracts as evidenced by 75 invoices that were raised by the plaintiffs upon the defendants between 8.4.2012 and 12.8.2012. 2 The plaintiffs are engaged in the business of trading in iron steel and other metals and allied products. The defendants are in the business of construction. The plaintiffs, based on the request and orders placed by the defendants supplied TMT steel bars to the defendants by purchasing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as 30% p.a. as agreed between the parties amounting to ₹ 14,89,80,182/with further interest @ 18% p.a. on the principal amount of ₹ 9,75,88,621/. 5 The defence raised in the affidavit in reply are :( a) The plaintiffs have no cause of action as required for filing summary suit. It is not stated anywhere as to why the plaintiffs do not have cause of action. Even the counsel did not make any submission elaborating the same and therefore, I am not going to take into account this defence at all ; (b) The defendant nos.3, 4, 7, 8, 10 11 were independent Directors. This also is not any more relevant because the plaintiffs, with the leave of the Court, deleted defendant nos.2 to 11 from the array of defendants in the cause title ; (c) The plaintiffs have suppressed a letter dated 1.2.2013 sent by the Advocate for defendant no.1 where it is stated that the goods supplied by the plaintiffs were of substandard quality and 30% of the amount being ₹ 2,92,76,586/was agreed to be deducted towards the same and goods worth ₹ 3 crores were lying rejected and were to be collected by the plaintiffs ; (d) Fourthly, the documents such as purchase order, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount is calculated towards supply of substandard and poor quality of materials. 2 Unusable substandard stock lying is be lifted by supplier. Therefore, the defendants had admitted that a sum of ₹ 3,83,12,035/was payable and to that extent the plaintiffs are entitled to a decree forthwith. On the claim towards supply of poor quality of material @ 30% (as mutually agreed)₹ 2,92,76,586 and unusable substandard stock lying with the defendants amounting to ₹ 3,00,00,000/, admittedly there is not even a shred of evidence filed by the defendants. Moreover, if the defendants were honest and truthful they would have immediately paid the amount of ₹ 3,83,12,035/. 9 It is necessary to mention that the materials were supplied between 8.4.2012 and 12.8.2012. On 17.11.2012 the defendants wrote to the plaintiffs confirming that as per the defendants' book a sum of ₹ 9,75,88,621/was due and payable to the plaintiffs. 21 consignments were sent between 8.4.2012 and 24.4.2012. 19 consignments were sent between 8.5.2012 and 27.5.2012. 17 consignments were sent between 1.7.2012 and 11.7.2012 and 18 consignments were sent between 6.8.2012 and 12.8.2012. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. Vs. Proxima Medical System GMBH (2005) 7 Supreme Court Cases 42 approved the judgment of the Madras High Court in the matter of Tube Investments of India Ltd. Vs. Rim and Accessories (P) Ltd. (1990) 3 Comp LJ 322 in which the principles relating to bonafide dispute were evolved and the Court held that if there is no bonafide dispute in regard to the sum payable towards the principal, it is open to the creditors to avail of both the remedies of filing civil suit as well as filing petition for winding up of the company. In fact, the proceedings under the Companies Act and suit filed under Order 37 are both two different kinds of action. In one, you can get a decree for an admitted amount and in the other you can obtain an order of winding up. Therefore, there is no harm and nothing wrong in these two proceedings moving simultaneously. 13 The defendants have admitted in their reconciliation statement attached to their email dated 7.11.2012 that a sum of ₹ 9,75,88,621/- is payable to the plaintiffs. In the letter of 1.2.2013 from the defendants' Advocate to the plaintiffs' Advocate, the defendants in any event admit that sum of ₹ 3,83,12,035/is payable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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