Calcutta High Court
Tanaya Industries Pvt. Ltd vs Gcm & Others on 21 December, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1427 of 2014
CS No.100 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
TANAYA INDUSTRIES PVT. LTD.
Versus
GCM & OTHERS
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 21st December, 2015
Mr. Utpal Bose, Sr. Adv. with
Mrs. Suchismita Ghosh Chatterjee, Adv.
..for the petitioner
Mr. Kaushik Chatterjee, Adv. with
Mr. R Maity, Adv.
..for the respondents 1 & 2
The plaintiff has filed a suit for recovery of US $ 526819.18 or equivalent INR on the conversion rate in view of the alleged violation of the defendants to supply PW Tube manufacturing machines. While the plaintiff contended that under the agreement, the plaintiff paid the required instalment in time, the defendant no.1 in the affidavit has alleged that due to delayed payment of instalments, the manufacturing of the equipment were delayed and it was within the knowledge of the plaintiff. The delay caused in performance of the contract, according to the defendants, was attributable to the plaintiff, as a result, there is no breach of contract in so far as defendants are concerned. The defendants further state that the defendants are in a position to deliver the said machines to the plaintiff. 2
Mr. Bose, learned Senior Counsel appearing with Mrs. Suchismita Ghosh Chatterjee, learned Counsel submits that the documents disclosed in this proceeding would show that the first instalment was paid in time and thereafter there was a delay on the part of the defendants to complete the manufacturing process and by the time the defendants alleged to have completed the manufacturing of the said equipment, one time licence granted to the plaintiff to import the said machines to be used for its manufacturing activity had expired and there is no possibility of the said licence to be renewed further.
The claim in the suit sounds in damages. It involves disputed questions of fact to be gone into at the trial as to who is responsible for the breach. However, since it appears from the averments in the affidavit in opposition as also from the submission made on behalf of the defendants that the said equipment could be of no value to the said defendants, I direct the defendant no.1 to sell the said equipment by public auction upon intimation to the plaintiff and in consultation with the plaintiff so that best possible price is fetched. The said amount shall be deposited in an escrow account to be opened by the defendant no.1 subject to the result of the suit.
Ms. Leena Chatterjee appears and waives service of writ of summons upon the defendant nos.1 and 2. The said defendants shall enter appearance in the suit within one week after reopening and upon service of the plaint by the Advocate-on-record of the plaintiff. The said defendants shall 3 file written statement within eight weeks from the date of entering appearance.
The plaintiff shall take expeditious steps for effecting service of writ of summons upon the defendant no.3.
The application being GA No.1427 of 2014 stands disposed of. There will, however be no order as to costs.
(SOUMEN SEN, J.) AKGoswami