OXBRIDGE ASSOCIATES LIMITED Vs. MR. ATUL KUMRA

JUDGEMENT

(1.) I.A. No. 487/2016 (under Order 38, Rule 5 read with Sec. 151 of the Code of Civil Procedure) The present suit has been filed for recovery of a sum of Rs.1,55,46,586.62.00 along with the pendete lite and future interest against the defendant. It is not in dispute that the plaintiff had placed two purchase orders Nos.205 and 213 with the defendant and as per these orders the defendant raised performa invoices and one of the conditions was to make pre-payment and accordingly, the plaintiff had made the payment against the performa invoices for purchase order Nos.205 and 213.

(2.) The contentions of the plaintiff is that the defendant failed to provide the products in terms and conditions of the purchase order and invoices which caused huge losses to the plaintiff. The plaintiff cancelled the purchase order no.205 on 24.04.2015 and purchase order no.213 on 22.05.2015 and sought refund of USD 281,753.92 and USD 84,275.60 which money was paid in advance by the plaintiff to the defendant against the performa invoices. On demand, the defendant refused to refund the entire amount and arbitrarily and unilaterally made a deduction of 25% towards handling and cancellation charges and exchange rate difference against both the purchase orders. It is submitted that they are not entitled to make such deductions. It is further contended that the plaintiff had accepted a sum of USD 150,000 as part payment under protest with respect of first purchase order. The total sum due in respect of first purchase order no. 205 is USD 131,735.92 and USD 84,725.60 in respect of second purchase order 213 and the total due amount is USD 216,461.52 which along with interest as on 29.09.2015 in rupees comes to Rs.1,55,46,586.62. It is further submitted that the defendant in his Statement of Account as on 13.05.2015 and 15.06.2015 sent through an e-mails dated 13.05.2015 and 26.06.2015 admitted having received USD 281,753.92 and USD 84,275.60 and their liability to pay a sum of USD 180,037.30 against the purchase order no. 205 and USD 57,790.93 against purchase order no. 213. It is submitted that the plaintiff has learnt that the drug license of the defendant is subject to final outcome of the proceedings pending before the Supreme Court in SLP (C) 5844 and 5846 of 2005 and in case the order is passed against the defendant they would be out of business and in that eventuality it would not be possible for the plaintiff to recover the said amount. It is also submitted that several other proceedings including summary suit (Federal Express Corporation Vs. Atul Kumra Prop. Medicine House ) and criminal proceedings relating to cheating (CBI Vs. Atul Kumra and Another ) are pending against the defendant and if he is convicted, the defendant being is the sole proprietorship concern, it would not be possible for the plaintiff to recover decretal amount. On these submissions it is prayed that defendant be directed to furnish security either by depositing this amount in the court or in any other manner.

(3.) The application is contested by the defendant. It is submitted that the present application is not maintainable since on ground for the grant of the relief under the provisions of Order 38, Rule 5 Civil P.C. has been made out. The plaintiff has not shown any facts which would suggest that defendant was about to dispose of his properties with intent to delay or obstruct the execution of decree and hence the application is liable to be dismissed. It is also submitted that it is the plaintiff who owes money to the defendant as per the latest Statement of Accounts, copy of which was furnished by the defendant during the course of arguments. It is prayed that the application be dismissed.