Calcutta High Court
Titagarh Wagons Limited vs The Board Of Trustees Of The Port Of ... on 18 September, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
GA No.928 of 2019
With
CS No.9 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
TITAGARH WAGONS LIMITED
Versus
THE BOARD OF TRUSTEES OF THE PORT OF KOLKATA
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date: 18th September, 2019.
Appearance:
Mr. Jishnu Saha Sr. Adv.
Ms. Arpita Saha, Adv.
Mr. Sayantan Bose, Adv.
Ms. Madhurima Das, Adv.
. . .for petitioner.
Mr. Abhrajit Mitra Sr. Adv.
Mr. Ashok Kr. Jena, Adv.
. . .for respondent.
The Court: This specially assigned application is up for hearing. Mr. Saha, learned senior advocate appears on behalf of applicant, who is service provider to defendant. He submits, this application is for summary judgment under order 13A in the schedule to Commercial Courts Act, 2015. He will demonstrate his client has ground for summary judgement, where defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording oral 2 evidence. He submits, prescribed procedure has been followed in drawing the application, to disclose all material facts wherefrom point of law, involved in the case, stands identified. Relevant documentary evidence has been disclosed.
He submits, claim is for interest. His client as service provider had paid indirect tax being service tax. This was to be reimbursed by defendant. Payments were made by his client of aggregate amount Rs.3,94,34,035/-. Dates of payments were 31st December, 2013 and 31st December, 2014. On not getting the reimbursements, his client moved this Court under article 226 of the Constitution of India, seeking defendant be compelled to reimburse with interest. The writ petition was filed in year 2016 and came to be disposed of by order dated 24th February, 2017. By said order, the claim on principal was directed to be paid and following observations made.
"After the writ petitioner No.1 has received the sum of Rs.3,94,34,035/- as directed hereinbefore, it shall be open to the writ petitioner No.1 and/or the Kolkata Port Trust to pursue their respective legal remedies in respect of any other claims that they may have against each other before the appropriate forum, with liberty to each of the said parties to defend the same."
To enforce his client's claim on interest, this Court was moved by arbitration petition for appointment. The arbitration petition was made in year 2017 and by order dated 8th June, 2018, coordinate Bench took view that the claim is not covered by the arbitration agreement clause 10.1, between parties. Hence, this suit filed on 22nd January, 2019 and therein, this application. He 3 submits, his client's claim on interest was prosecuted before the writ and arbitration Courts, which Courts dismissed the claim on lack of jurisdiction. In the facts and circumstances, section 14 in Limitation Act, 1963 saves his client's claim from being barred.
He refers to sub-paragraphs (a) and (e) in paragraph 3 of the affidavit in opposition. In sub-paragraph (a) the allegation is that his client never submitted discharge certificate in Form VCES-3, which were required on proof of payment under the scheme and a pre-request for availing in put credit. He submits, no allegation or counterclaim was made regarding this alleged inability of defendant to avail in put credit. There is clear finding between parties by competent writ Court that the tax paid was to be reimbursed by defendant. On defendant's failure to pay, claim on interest arose. Parties have accepted that such claim could not be enforced by writ Court and dispute regarding the same also could not be referred to arbitration.
Sub-paragraph (e) in paragraph 3 of the affidavit is set out below:
"e) The defendant further states that the claim made in the present suit is excluded by the order of February 24, 2017 passed in W.P. No.948 of 2016. The claim in the present suit does not arise out of the payment of service tax amounting to Rs.3,94,34,035/- but is a the separate claim for which leave was granted by this Hon'ble Court. As to the service tax liability, this was finally settled at Rs.3,94,34,035/-.
The plaintiff's claim for interest as made in the writ petition is barred 4 by res judicata, constructive res judicata and principle analogous thereto."
Defendant will be heard on adjourned date. List on 24th September, 2019.
(ARINDAM SINHA, J.) sp/