BHUSHAN STEEL LIMITED Vs. VARSHA A MAHESHWARI

JUDGEMENT

(1.) Challenge in both these Writ Petitions filed by rival parties against eachother is to orders dated 30.09.2010 passed by the 4th Joint Civil Judge, Senior Division, Nagpur in Civil Suit No.70/2009. The said suit is filed by the petitioner in Writ Petition No. 5364/2010 as Summary Suit for recovery of amount of Rs. 38,89,674.14 along with interest @ 18% jointly and severally against the defendants therein. The dues claimed are on account of Magnetite Powder supplied by the plaintiff to defendant no.1 Company on the strength of purchase orders placed by the defendant no.1 Company with the plaintiff. The defendant no.2 is the General Manager in purchase department of defendant no.1 Company. By the impugned order passed below Exh.16 the trial Court has granted leave to defend under Subrule

(2.) Plaintiff through her Power of Attorney Holder while assailing the order in writ Petition No. 5364/2010 has invited attention to the purchase orders to show that the quality of powder supplied was to be inspected by the defendants at their end and thereafter, payment was to be released within 7 days. The material if found inferior was to be returned within 7 days. Various terms and conditions of the purchase order are indicated to urge that time has always been the essence of the contract. In view of this the defence of defendants that material supplied was of inferior quality is, stated to be by way of after thought and for that purpose attention is invited to the quantity of powder asked for in each purchase orders and how it has steadily increased. The details of bills and payments released are also shown to this Court pointing out that except for the entries at Sr. Nos. 37 to 44 in chart there has been no delay at all and all payments have been released duly after inspection. It is urged that the payments released were not in accordance with supply or could not be corelated and hence plaintiff was required to send a special representative to understand the accounts. For amounts remaining outstanding emails were required to be forwarded, but then it did not receive any response. When legal notice was sent on 03.03.2009, immediately within two hours reply notice was forwarded by defendants taking a stand that the material was of inferior quality.

(3.) Attention has also been invited to the alleged third party test reports and also to the test reports conducted by the defendants as alleged to show how plea as raised about inferior quality of material do not match with the said story. The Attorney of plaintiff contends that first grievance of poor quality has been made almost after nine months and then on the basis of the so called independent test reports, prorata deductions have been effected from all supplies. Out of total 77 trucks supplied, payments have been released for 55 trucks and there was never any complaint about remaining 22 trucks. The establishment of defendants is stated to be very big and with facility for stringent quality check. It is urged that in reply to the legal notice for the first time on 03.03.2009 story of frequent break downs in preceding one year and of alleged loss of several Crores has been revealed & pressed into service. The letter dated 28.02.2009 is stated to be fabricated, as plaintiff got it on 26.03.2009 after receipt of the email reply of defendants. This communication dated 28.02.2009 is also urged to be exact replica of email reply, except for addition of figure of loss therein. The test certificates placed on record by the defendants and test certificates filed by the plaintiff are also pointed with contention that the test certificates of defendants are of same date i.e. of date of delivery. The learned Attorney states that thus on the basis of immediate tests, no grievance was made about the inferior qualify and material was appropriated and used for production by the defendants. After the stock supplied was appropriated, there is no question of its rejection. It is also urged that when the defendants allegedly felt need of impartial/ 3rd party test, why the plaintiff was not taken into confidence by arranging for joint sampling. It is urged that leave to defend has been sought for without any material and service of letters upon plaintiff is alleged through TCI Express Courier. The plaintiff states that these documents are fabricated and when plaintiff sought information from TCI Express Couriers, the said Courier has denied service of any such letters on plaintiff. Effort has also been made to show that records have been interpolated and fabricated by inviting attention to the counter submissions filed before this Court vide Stamp No. 12432/2010. The particulars used as Courier numbers/details are stated to be also manipulated. The effort of defendant to force plaintiff to lift 300 M.T. Of alleged inferior quality material is also stated to be again false in this background. It is contended that in the face of these complaints (alleged) about quality, the contract was never terminated and later supplies were accepted by the defendants. Plaintiff states that denial of signature of Arvind Srivatava by defendant is false & an application moved by her under Section 340 of Criminal Procedure Code is very much pending.