The single judge jury corporate petition filed by a petitioner seeking the balance payment for core boxes was dismissed. The court held that the contract was not modified and the respondent raised bona fide disputes regarding casting quality early on, precluding civil adjudication in this forum.
Petition dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
COMPANY PETITION NO.783 OF 2003
M/s. Eagle Industries ..... Petitioners
v/s.
M/s. Vir Alloys and Steel
Co.Pvt.Ltd ..... Respondents
K.H. Mody i/b. RMG Law Associates for the petitioner.
Mohan Raheja for the company.
CORAM: S.U. KAMDAR, J.
DATE : 10TH FEBRUARY, 2005.
P.C. :
1. In the present case the claim of the
petitioner is for the sum of Rs. 1,84,669/- in
respect of supply of core boxes of approximately 3
lakhs pieces. One of the terms and conditions of the
agreement arrived at between the parties is reflected
in the letter dated 15.6.2001 which pertains to the
payment which reads as under :
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"payment: 60% advance against bank guarantee
and Balance after casting approval."
2. On the basis of aforesaid agreement the goods
were sold and supplied by the petitioner to the
respondent company. It is an admitted position that
the company has paid to the petitioner a sum of
Rs.2,20,000/- out of an aggregate amount of
Rs.3,60,000/- and there is a balance of Rs.140,000/-.
It is the case of the respondent company that the
balance amount is not due and payable as the casting
material in respect of the said goods have been found
of inferior quality. The said dispute was raised as
far back as 29.9.2001 in a letter addressed to the
company and by its another letter dated 9.8.2002 which
was addressed to M/s. Asian Wind Turbines Pvt. Ltd
wherein it was pointed out that the casting material
has not clear the test of ultrasonic level.
3. Mr. Mody learned counsel for the petitioner
has vehemently contended that these terms and
conditions as reflected in the letter dated 15.6.2001
has been altered and or modified. He draws my
attention to a letter dated 19.9.2001, 9.8.2001 and a
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letter dated 14.9.2002 and has inter-alia contended
that their responsibility is only in respect of the
dimensional problem and not in respect of the casting
of the said material. The learned counsel for the
petitioner has further contended that in so far as the
casting material is concerned it is an issue which is
directly concerned in respect of a contract executed
between the respondent company and the said M/s.
Asian Wind Turbines. According to the learned counsel
for the petitioner the contract was thus substantially
modified which was originally providing for payment
only against casting approval. On the other hand the
learned counsel for the company has contended that
there is no such modification of contract. He has
further contended that the liability of casting
approval is also expressly on the petitioner and the
same is duly reflected in the letter dated 15.6.2001.
He has further contended that the company namely M/s.
Asian Wind Turbines Pvt. ltd is also a company
introduced by the petitioner to the respondent company
and therefore the petitioner undertook the
responsibility even in respect of the casting approval
for the goods supplied and delivered. In view of the
aforesaid position, the learned counsel for the
company contends that there are triable issues.
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4. I have considered the rival submissions of the
parties. I am of the opinion that there is no such
modification and or alteration to the original
contract dated 15.6.2001 entered into between the
parties. I also do not see any modification of the
contract in the letters relied upon by the petitioner.
The said contract expressly provides payment of the
balance amount of 40% only against the casting
approval. If the contention of the petitioner is
accepted that he had not undertaken to provide casting
material then it is not possible to understand how the
balance payment has been made subject to the approval
of the respondent company in respect of of the casting
of the material. Apart therefrom also I find that the
disputes in respect of the casting materials is raised
as early as in September 2001 i.e. within a period of
3 months from the date of execution of the agreement
which is on 15.6.2001. In my view in the aforesaid
circumstances there are bonafide disputes raised by
the company. In view thereof the present petition
cannot be entertained. The petition is dismissed
accordingly with no orders as to costs.
sd/-
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2 issues framed by the court
Whether the original contract terms regarding payment against casting approval were validly modified by subsequent correspondence.
Whether bona fide disputes regarding the quality of the casting material justify the dismissal of the company's claim for the balance payment.
M/s. Eagle Industries
M/s. Vir Alloys and Steel Co.Pvt.Ltd
S.U. KAMDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court