Soumya Mining Limited vs Voltas Limited

In 2013, the respondent company was executing a project at Meghalaya. On 1st July, 2013 the parties entered into a contract under which the respondent company was to supply spare parts to and provide service to a mobile crusher being utilised by the petitioner at the project site. Seven purchase orders were placed by the respondent company.

Between 9th April, 2013 and 13th November, 2013 from time to time invoices were raised by the petitioner. Insignificant payments were made by the company.

On 30th March, 2016 the petitioner issued a statutory notice to the respondent company claiming an amount of Rs. 21,29,251 inclusive of interest calculated @22% per annum from the dates of the respective invoices till 15th March, 2016. The interest component was Rs. 7,38,765. By the notice the respondent was called upon to furnish the TDS certificate and to furnish the C-form or pay the differential tax of Rs. 46,454, differential duty amounting to Rs. 20,600 and interest thereon. The aggregate claim amounted to Rs. 21,75,705/-. This notice was replied to by the letter of a firm of Advocate RDA Legal dated 19th April, 2016. It was said that the agreement had an arbitration clause and that the petitioner should have resorted to arbitration. In paragraph 7C of the reply, it was admitted that the respondent had paid Rs. 1,57,795/-.

Mr. Banerjee appearing for the petitioner considers this statement as an admission of part payment made by the company.

Let us examine the defence of the company to the winding up notice. First by their reply dated 19th April, 2016 they stated that there was an arbitration clause in the agreement between the parties. There is a broad and evasive denial of the petitioner''s claim. However sale and delivery were not denied. It was said that the company was not "at all times satisfied with the spare supplied or the services rendered". It denied that the invoice amount could be Rs. 15,48,281/-. But it acknowledged that the company made payment of a sum of Rs. 1,57,795/-.

On examination of all the papers and on hearing learned counsel for the respondent, it does appear to me that the reply to the statutory notice was prepared without proper instructions and without scrutiny of all the necessary documents pertaining to the case.

Annexure R-2 to the affidavit-in-opposition comprises of a series of emails exchanged between the respondent company and its principal, a company called Lafarge and between the petitioner and the respondent company. It does seem to me that the principal contract was between the company Lafarge and the respondent company and that the former had advised the respondent company to procure a mobile crusher from the petitioner and to ensure that the parts required to run it were also procured from the supplier. The services of an engineer to be present at the site also had to be taken from the petitioner.

Allegedly for non-availability of some spares, particularly a sensor, the mobile crusher could not be operative or fully operative. Lafarge blamed the company for not being able to operate a workable machine. The company kept on telling them that they were getting spares from the petitioner. The correct spares did not arrive at the right time, for whatever reason. The respondent was not able to perform its parent contract with Lafarge satisfactorily.

It is absolutely amazing why these points were not taken in the reply to the statutory notice. But there is no dispute whatsoever that the goods and service represented by the invoices at page 14 of the petition were consumed by them, without any demur and appropriated to their use. From what I have stated above it does appear that in a suit to be filed by the petitioner, the respondent company can set up a formidable defence and counter-claim.

For all those reasons, it cannot be said that the court can pass a decree on the petitioner''s claim on the same principles as a court decrees a summary suit. The claim has to be tried.

This winding up application is accordingly dismissed.

In case the petitioner is desirous of filing a suit the period during which the application was pending in this court between 28th July, 2016 and this day will be excluded under Section 14 of the Limitation Act for calculating the period of limitation for the suit.

Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.