Calcutta High Court
Pks Limited vs State Trading Corporation Of India Ltd. ... on 26 July, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD-86
GA No. 82 of 2016
CS No. 4 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
PKS LIMITED
Versus
STATE TRADING CORPORATION OF INDIA LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 26th July, 2016.
Appearance:
Mr. Sukrit Mukherjee, Advocate Mr. S. Abedin, Advocate Mr. Shourjya Mukherjee, ADvocate ...for the plaintiff.
Mr. P. S. Bose, Senior Advocate Mr. K. K. Chattapodhyay, Advocate ...for defendant No.2.
Mr. Arik Banerjee, Advocate Mr. Shaunak Ghosh, Advocate ...for defendant No.1.
This is a scandalous suit, the plaint whereof has been verified by a strange animal. The present application is by the second defendant, Food Corporation of India, for revocation of the leave granted under Clause 12 of the Letters Patent or, in the alternative, for the dismissal of the suit as against the second defendant or the rejection of the plaint.
The yarn that has been spun in the plaint is that the plaintiff obtained export orders from foreign parties, primarily for wheat and like food products, and till or about beginning of March, 2003 effected the exports through first defendant State Trading Corporation. State Trading Corporation apparently obtained the supplies from the Food Corporation of India and the 2 export transactions were handled by the plaintiff. The plaintiff claims to have made an excess payment of about Rs.4.15 crore to STC on account of the wheat and other products.
The grounds urged on behalf of the second defendant are that no part of the plaintiff's cause of action could have arisen within the jurisdiction of this Court; that the claim is barred by limitation; and, in any event, the plaint does not disclose any cause of action against the second defendant.
As to the plaintiff's choice of this forum, it has been averred in the plaint that since the defendants are the plaintiff's debtors and, as such, obliged to find and pay their creditor, the situs of the plaintiff's office within jurisdiction would entitle the plaintiff to maintain the suit in this Court. Elsewhere, it appears from the cause title that the first defendant is alleged to have an office within jurisdiction. The second defendant's Delhi office has been indicated in the plaint and the second defendant has not been sued on the basis of having any place of business within jurisdiction.
The second defendant points out that all the transactions were in Gurgaon, Faridkot, Kanpur, Sitapur, Haldwani, Amritsar, Jalandhar and Ferozpur and nowhere in this State, far less within the territorial jurisdiction of this Court. The second defendant claims that there was no contract between the second defendant and the plaintiff nor was any payment received by the second defendant from the plaintiff for the plaintiff to be entitled to any refund 3 from the second defendant. Further, it is contended on behalf of the second defendant that on a plain reading of the plaint and the copy documents appended thereto, it will be evident that the claim is barred by limitation.
As to limitation, the plaint claims at paragraph 16 thereof as follows:
"16. The defendants have admitted and/or acknowledged their liability in writing and in any event have promised to pay the same by diverse correspondence, inter-alia, including the letter dated 28th November 2012 referred to in paragraph 11 hereinabove and no part of the claim of the plaintiff is barred by limitation. In any even the correspondence referred to above established a jural relationship of that of a debtor and creditor between the defendants and the plaintiff."
At paragraph 11 of the plaint, the plaintiff has referred to various documents from the period 2003 to 2013 to suggest that the claim in the suit was a live claim and capable of being pursued. However, it is evident from paragraph 8 of the plaint that the alleged excess payment had been made by the plaintiff prior to March 31, 2003. The suit was filed in January, 2014. The several documents referred to at paragraph 11 of the plaint include a facsimile message of September 7, 2008 issued by the second defendant to some of its units with a copy thereof endorsed to the first defendant; a letter dated December 19, 2008 addressed by the first defendant to the second defendant; a facsimile message of 4 January 15, 2009 issued by the second defendant to the first defendant and letters dated July 28, 2009, October 1, 2010, July 14, 2011 and November 28, 2012 issued by the first defendant to the second defendant.
Without going into the contents of the relevant documents, copies whereof have been appended to the plaint, it is evident that none of the documents could have kept the plaintiff's claim for refund alive, at least as against the second defendant. It is elementary that for a claim to remain live beyond the prescribed period of limitation, there must at least be an acknowledgement of the jural relationship between the parties within the period of limitation. In this case, the plaintiff's claim arose by March 31, 2003 as pleaded at paragraph 8 of the plaint, but the first of the letters that is relied on for the purpose of trying to establish a jural relationship between the second defendant and the plaintiff is dated September 7, 2008 which is beyond the period of limitation.
The facsimile message of September 7, 2008 was issued by the Delhi headquarters of FCI to its Haryana, Uttar Pradesh, Uttaranchal and Punjab offices. It detailed the payments received at the various offices of FCI and required the local offices to confirm whether any excess amount had been refunded to the Chennai office of STC. Nothing in the document amounts to any acknowledgement of the legal status qua the second defendant and the plaintiff. Even if the document appears to be an 5 acknowledgement as to FCI's transaction with STC, such acknowledgement being beyond three years from the date when the plaintiff claims the refund to have become due, the same is of no relevance. It is not necessary to specifically refer to the letters issued by STC to FCI, particularly, since the plaintiff's purported claim against FCI cannot be kept alive without any document emanating from FCI. However, it is evident that in several of the letters issued by STC to FCI, there is a demand for refund of excess payment, though the first of such letters of December 19, 2008 refers to such claim being pursued for five years. The only other document in the bunch which emanated from FCI was pursuant to one of STC's demands. The facsimile message of January 15/16, 2009 called upon the STC in Chennai to furnish particulars of STC's refund claim. The document cannot be said to be an acknowledgement of any jural relationship between FCI and STC, far less the acknowledgement of any jural relationship between FCI and the plaintiff.
Indeed, on a meaningful reading of the plaint it is evident that it does not disclose any cause of action against second defendant FCI. There are documents addressed by STC to FCI and marked to the plaintiff which the plaintiff may use against STC, but there is no document appended or referred to in the plaint which even remotely shows any cause of action of the plaintiff against FCI, leave alone any live claim that the plaintiff was entitled to pursue against FCI in January, 2014. 6
The mendacity of the action is also evident from the fact that an authorised representative of the plaintiff has sought to verify the plaint though, ordinarily, a body corporate is required to have its pleadings verified by any principal officer or even by a constituted attorney. An authorised representative or an authorised signatory may represent a body corporate before a bank or other entities, but may not be authorised to verify or affirm pleadings on its behalf in a Court of law.
The claim made in the suit as against FCI appears to be hopelessly barred by the laws of limitation. Further, it does not appear from the pleadings that the plaintiff had any cause of action against FCI to begin with.
Accordingly, GA No.82 of 2016 is allowed by directing the deletion of the name of the second defendant from the array of parties.
The second defendant will be entitled to costs assessed at Rs.50,000/-.
Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SANJIB BANERJEE, J.) S. Kumar / bp.