IFGL REFRACTORIES LIMITED Vs. LINDSAY INTERNATIONAL PRIVATE LIMITED.

JUDGEMENT

(1.) The Court: The petitioner is an unpaid vendor. The petitioner has filed this application for securing and/or preservation of Rs.214 lakhs payable by the respondent to the petitioner on account of goods sold and delivered to ArcelorMittal (hereinafter referred to as "AM"). The petitioner alleged that under the terms of purchase orders, the respondent is obliged to release payments within three working days of receipt of payments by the respondent from the overseas buyers. It is alleged that the respondent is not disputing that the payments from the overseas buyers have been received, but for some oblique purpose or reason the respondent is avoiding payment.

(2.) Mr. Anindya Mitra, learned Senior Counsel appearing on behalf of the petitioner, has referred to the Memorandum of Understanding dated 28th October, 2016 and the correspondence preceding the said Memorandum of Understanding and submits that in the Memorandum of Understanding and submits that in the Memorandum of Understanding the respondent has unequivocally admitted receipt of a sum of Rs.4.21 crores which include Rs.214 lakhs of the petitioner, but has refused to release the said payment. It is submitted that the said amount is being held by the respondent in trust for the petitioner and the respondent cannot refuse to release the said payment.

(3.) Per contra, Mr. S.K. Kapoor, learned Senior Counsel appearing on behalf of the respondent, submits that the admission of liability as argued on behalf of the petitioner, is not reflected from the recitals of the said Memorandum of understanding as it clearly stipulates that there are disputes with regard to the amount to be paid to the petitioner as also the duty draw-back amount. It is submitted that under the Memorandum of Understanding, it was upon the petitioner as well to have a discussion and resolve the matter amicably and the respondent was all throughout willing resolve it. Mr. Kapoor has referred to e- mails and correspondence prior to October 28, 2016 to demonstrate that notwithstanding non-exclusivity clause in the purchase orders, the petitioner was directly communicating with ArcelorMittal thereby committing a breach of contract for which the respondent is entitled to damages. Mr. Kapoor has referred to the communication dated 25th October, 2016 where the respondent has asserted implied contract of exclusivity and has threatened the petitioner to claim loss and damage in case there is a breach of the exclusivity clause. It is submitted that the respondent is having a claim on account of damages and at an appropriate time, such claim should be lodged.