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TMI Blog2015 (3) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... tition is liable to be admitted. - Appeal disposed of - A.P.0. No. 4 of 2015, C.P. No. 694 of 2014, A.P.0. No. 5 of 2015, C.P. No. 695 of 2014 - - - Dated:- 31-3-2015 - Ashim Kumar Banerjee and Samapti Chatterjee, JJ. For The Appellant : Mr. Reetabroto Mitra, Advocate, Mr. Supratim Laha, Advocate, Ms. Saroj Tulsian, Advocate, Ms. Pryanka Keshan, Advocate For The Respondent : Mr. Probal Mukherjee, Senior Advocate, Mr. Pradip Kumar Bose, Advocate, Ms. Gargi Pattanayak, Advocate ASHIM KUMAR BANERJEE, J. These two appeals would have identical facts and law involved. Hence, we wish to dispose of the said appeals by a common judgment and order. However, when we would refer to the facts that would relate to Himatsingka Chemicals Private Limited being C.P. No. 694 of 2014. The parties to the appeal had commercial relationship for long. The respondent company placed an order for supply of Caustic Soda Flakes, upon the appellant on credit basis. The appellant supplied the goods as per requisition and received payments in part. After giving credit to the sums already received Himatsingka Chemicals Private Limited found a sum of ₹ 10, 62,900/- still remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Being aggrieved Himatsingka Chemicals Private Limited and PH Trading Limited filed the above appeals that we heard on the above mentioned dates. CONTENTIONS: Mr. Reetabroto Mitra learned Counsel appearing for the appellant would submit, once His Lordship permitted the winding up petition to be withdrawn with liberty to apply afresh the plea of res judicata would not be applicable. Mr. Mitra would also contend, since there was no decision on merit in the earlier petition the plea of res judicata would not be available. Moreover, the new winding up petition would have a distinctive feature as the claim for sales tax was subsequently added. Per contra, Mr. Prabal Mukherjee learned senior Counsel appearing for the respondent would dispute the claim. Mr. Mukherjee would submit, there was fruitful hearing of the first winding up petition when the appellant by their own choice, allowed the petition to be dismissed as withdrawn without any express leave being obtained for filing a fresh winding up petition hence, the second petition on the self-same cause of action would not lie. While replying, Mr. Mitra would rely upon a letter dated January 19, 2015 whereby the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur understanding of the law as we gather by looking to the various provisions of Code of Civil Procedure that would include Section 11, Order II Rule 1 and 2 and Order XXIII Rule 1 of the Code. Section 11 would deal with the aspect of res judicata that, inter alia, prevents any court to try any issue which was directly or substantially in issue in a former litigation between the same parties where a final adjudication had already been made. Order II Rule 1 and 2 would suggest a comprehensive action to be brought and any subsequent action between the same parties where the plaintiff omitted to reserve their liberty, would be invalid. It provides, every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. The whole claim must be brought in a comprehensive action and in case of omission to bring any other relief, subsequent action would be invalid unless a specific liberty was reserved and obtained by the plaintiff while filing the former suit. APPLICABILITY OF LAW IN THE PRESENT SCENARIO: The Code of Civil Procedure would lay down the procedure, inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SION ON MERIT: The facts would reveal, the appellant supplied goods and received part payment. They were not provided with Sales Tax forms. The claim, that would arise, would include claim for balance outstanding on account of supply as well as claim on account of Sale Tax due to non-submission of C Form. Correspondence exchanged by the respondent, right from 2012, would raise no dispute at any point of time. We would find, one Dilip Choudhury was dealing with the matter. He resigned from the Board. Hence, the respondent was handicapped to examine the veracity of the claim. Right from 2012 to the last correspondence referred to above during the pendency of the appeal, would suggest, the respondent way buying time. The reply to the statutory notice of demand would make a vague denial without any specific observation as to merit. In course of hearing, we enquired from Mr. Mukherjee as to what would be his objection to the claim, he would express his inability to make any specific objection as, according to him, his clients were still unable to examine the veracity. We asked Mr. Mukherjee, whether the respondent was in a position to deposit the entire claim to show their bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 694 of 2014: The appellant would be entitled to advertise the notice once in Times of India and once in Bartaman, publication in Calcutta gazette is dispensed with. Publication would, however, not be made in case the respondent would pay the principal sum amounting to ₹ 10,62,900/- and the Sale Tax Dues amounting to ₹ 51,696/- aggregating to ₹ 11,14,596/-together with interest at the rate of 9 per cent per annum on or from June 16, 2014 being the date of the statutory notice of demand, until payment. The respondent would be entitled to clear off the aforesaid dues in 12 equal monthly installments. The interest would be calculated on the reducing balance and be paid by way of 13th installment. The first of such installments would be paid on or before April 10, 2015 and thereafter on the 10th day of its succeeding months. In default of payment of any one installment, the order of stay would stand vacated and the appellant would be entitled to proceed with the advertisement as directed above. C.P. No. 695 of 2014: The appellant would be entitled to advertise the notice once in Times of India and once in Bartaman, publication in Calcutta gazette is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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