SHREE KRISHAN BINANI Vs. PROGRESSIVE CONSTRUCTIONS LIMITED

JUDGEMENT

(1.) In a suit for recovery of money, the petitioner has filed this application in the nature of attachment before judgment. The claim in the suit has arisen out of price of goods sold and delivered. The petitioner claims to have sold goods of diverse specifications between Jan. 2009 and April 2011 to the respondents. The petitioner states that against the supply made for the period from Jan. 2009 to April 2011, the petitioner raised bills and/or invoices aggregating to Rs. 2,76,77,888.00. The respondent in acknowledgement of its dues made part payment of a sum of Rs. 2,22,00,720.00. The respondents, however, had failed and neglected to pay the balance amount. After giving credit for the part payments made a sum of Rs. 54,77,168.00 had remained due and payable by the respondent on account of goods sold and delivered. The petitioner further states that in respect of the materials sold and delivered in April 2011 the respondent also did not issue Central Sales Tax Declaration Forms amounting to Rs. 53,038.00. Under such circumstances, the petitioner has claimed a sum of Rs. 95,99,75.00 together with interest. The petitioner states that the notice of demand sent by the petitioner was returned with the endorsement unclaimed. However, subsequently, copies of statement of accounts and other documents as desired by the respondent were supplied to the respondent in order to enable the respondent to reconcile the accounts and enable the respondent to make payment of the balance sum. The petitioner in justification of its claim for security and attachment before judgment has stated that the materials supplied by the petitioner were to be utilised for the projects of National High Way Authority of India and the incomes from the said project forms as the main source of income for the petitioner. The petitioner states that the respondent has no other asset out of which the claim of the petitioner could be satisfied. The petitioner has also given particulars of the bank accounts of the defendant and has stated that from the information gathered by the petitioner it appears that the respondent is going through financial penury and the monies receivable from NHAI are the only property of the respondent which could satisfy the decree. The respondent with the sole intention of defrauding its creditors is withdrawing the said sums with undue haste.

(2.) During the pendency of the proceeding, pursuant to the notice served upon NHAI, the said authority appeared and filed an affidavit in which it is contended by the said authority that the bills are yet to be finalised in respect of the work done by the defendant and if it is found that any amount is payable to the defendant company after adjustment, NHAI shall not release it to the defendant company without deducting the amount as may be directed by this Hon’ble Court.

(3.) The defendant in the affidavit in opposition has referred to few letters purported to have been sent to the plaintiff by courier to show that the accounts have been settled by and between the parties and no amount is due and payable by the defendant to the plaintiff. It is stated that the payments which have been made by the respondent against the bills raised by the petitioner was in full and final satisfaction of the claims of the petitioner which would be evident from the letter dated 18th Feb., 2012. The respondent stated that the respondent did not issue the Sales Tax Declaration Form in respect of the materials sold in April, 2011 as the goods supplied were returned by the respondent to the petitioner as they were all of inferior quality. The respondent relies upon a communication dated 26th March, 2012 which apparently was sent to the petitioner by courier.