Shekhar B.Saraf - (1.) The plaintiff is a company incorporated under the provisions of the Companies Act, 2013 having its registered office at T-50, MIDC, Nanded, Maharashtra - 431603 [hereinafter referred to as 'plaintiff company'] engaged in the business of various kinds of food and food related products. Whereas, the defendant nos. 1 and 2 are companies incorporated under the provisions of the Companies Act, 2013, having its registered office at 19, Synagogue Street, 3rd Floor, Room No. 321, Kolkata - 700001 and 113, Park Street, Poddar Point, Ground Floor, Suite No. 26, Rear Portion, Kolkata - 700016 respectively. Defendant nos. 3 and 4 happen to be the directors of both the defendant company no. 1 and 2 respectively. The plaintiff company has instituted this suit against the defendants praying for a decree of Rs. 1,14,00,000/- (Rupees One Crore Fourteen Lakhs Only) which is the principal amount due alongwith interest pendente lite at the rate of 18% per annum from 1st August, 2015 till the date of realisation of the amount.
(2.) The chronological facts leading to the instant case is delineated below: a. The defendant no. 2 company held 1583.33 Metric Tons of First Grade Potatoes (hereinafter referred to as "the product") which the defendant no. 2 intended to sell to the plaintiff company at the rate of Rs. 6000/- per Metric Ton, thus, aggregating to an amount of Rs. 95,00,000/- (Rupees Ninety-Five Lakhs Only). The product was stored at the cold storage owned by the defendant no. 1 company situated at Katwa, Burdwan. b. Thereafter, the plaintiff company on 12th February, 2015, entered into a buy back agreement with the defendant no. 2 company, as per which the plaintiff agreed to purchase the product from the defendant no. 2 for a sum of Rs. 95,00,000/- (Rupees Ninety-Five Lakhs Only) with an option to resell the same to the defendants for a sum of Rs. 1,14,00,000/-(Rupees One Crore Fourteen Lakhs Only), payable on or before 31stJuly, 2015. c. On the same day, that is, on 12th February, 2015, the plaintiff company entered into a written agreement of bailment with the defendant no. 1 company to give custody of the product and ensure that the same was free from any kind of risks arising under any circumstances. Such agreement of bailment recorded that in case of deficiency or loss arising from the product, the defendant no. 1 company would be held liable and would be required to indemnify the plaintiff company as to the complete value of the product. d. The plaintiff company made payment of Rs. 95,00,000/- (Rupees Ninety-Five Lakhs Only) to defendant no.2 company in two instalments by way of Real Time Gross Settlement (RTGS) on 4th February, 2015 and 13th February, 2015. e. In part performance of the aforesaid agreement to buy back the said goods from the plaintiff company, the defendant no. 1 company, being the sister concern of the defendant no. 2 company, issued seven post-dated cheques of an aggregate value of Rs. 85,00,000/- (Rupees Eighty-Five Lakhs Only) to the plaintiff company but the same were returned with the representation of "funds insufficient". The defendant nos. 3 and 4 assured the plaintiff that the balance payment of Rs. 29,00,000/- (Rupees Twenty-Nine Lakhs Only) would be made within 15th February, 2016 but the same went in vain. f. During January, 2017, the plaintiff came to know that the product which were given in bailment had been misappropriated by the defendants. Upon receipt of such information, the plaintiff conducted an inspection at the cold storage of the defendant no. 1 at Katwa, Burdwan through one of its representatives and found that the cold storage was empty and abandoned. Hence, the suit.
(3.) The Deputy Registrar on the request of the plaintiff company certified that the defendants did not enter appearance either in person or through its advocate until 20th March, 2019, inspite of substituted service by affixation and publication by the Orders dated 4th July, 2018 and 18th July, 2018 respectively. Thus, the matter was directed to be heard as an undefended suit.;