Respondent are in accordance with requisite standards, is manifest in the aforesaid certifications

(such as BSCIC ISO 9001:2008; ISO 22000 and HA CCP and BRC) granted to the Respondent’s
products.
4.5 Upon manufacture and quality- checking of the packaging, the Respondent dispatched the
initial shipment in the value of to the Claimant on 23 rd October, 2012. This is hereinafter referred
to as “the first consignment”. The Claimant was satisfied with the first consignment and made
payment towards the same. There was actually no dispute about this first consignment, and the
claimant had accepted and utilized the same. It is pertinent to mention that in the statement of
Claim, under Claim ‘A’, the claimant is claiming refund of total sum of USD 165,102.10, being
the total of the following sums: (i) USD 47,487.75 (ii) USD 30,614.10 and (iii) USD 87,000. It is
submitted that the first of the two sums were towards payment made towards the first, undisputed
consignment of October 2012, which the Claimant had accepted and used. The Claimant itself
admits that these first two sums, i.e. (i) and (ii) were due and paid in October 2012. These
payments thus could not have been towards the second order which was dispatched only in 2013,
which is the order in dispute. The fact that out of the aforesaid three amounts, only the amount at
number (iii) viz USD 87,000 was towards advance payments towards the disputed consignment,
is evident from the bank remittance advice annexed at TAB-2 in the COD. The bank remittance
advice refers to this amount being advance for Proforma Invoices Nos. AP/2003 and A004/2012-
13, which are admittedly the only invoices pertaining to the consignment in dispute. The
claimant is thus misrepresenting the position and is seeking to mislead the Ld.Tribunal by
putting in a claim for refund of even those amounts which were placed towards the first
consignment, which consignment is admittedly not in dispute and has nothing to do with the
disputed consignment. The claim on this account therefore deserves to be dismissed in limine.

4.6 Be that as it may, it is further submitted as follows: after receiving the first consignment
of October 2012, the claimant placed further orders upon the Respondent. As a matter of
practice, the Claimant would place further orders upon the Respondent only after receipt and
confirmation of prior orders. It is thus evident that the Claimant had found the material supplied
by the Respondent under the first consignment to be satisfactory. The second order placed by the
Claimant was in the total amount of USD 1,74,000; this total order is hereinafter referred to as
“the second consignment”. It has been agreed that out of the said sum, 50% would be paid as
advance and the balance 50% would be paid against the consignment documents. The Claimant
accordingly made an advance payment of USD 87,000 against the second consignment, on 15th
January, 2013. The second consignment was to be supplied in two shipments/containers, which
are hereinafter referred to as “the first container” and “ the second container” when spoken of
individually. The first container, which contained material in the value of USD 70, 996, was
shipped on 1st February 2013. Upon receiving the first container, the Claimant accepted the
packaging and communicated to the respondent that they were very happy with services as well
as the quality of the material supplied. Considering the total value of the first consignment, i.e.,
the first and second container together, it was agreed that the advance payment of USD 87,000
made by the claimant would be adjusted as follows: (a) USD 43,000 towards part-payment for
the first container, leaving a pending payment of USD 27,996 (which amount the claimant has
not paid till date); and (b) USD 44,000 towards the second container. The balance amount
towards the second container is also outstanding and payab12le by the complaints of the
“polymer smell/ taste” in the biscuits could not have been attributable to the material supplied by
the Responndent. Had the Claimant thought otherwise, it is inconceivable that the Claimant
would have taken the risk of once again using purportedly defective/sub-standard material and to
thus imperil its market reputation and customer base. It is submitted that the conduct of the
claimant itself belies and proves the falsity of the allegations made by it. Be that as it may be, as
per the claimant’s instructions, the Respondent manufactured material to be dispatched by way
of the second container. The said material manufactured by the Respondent for the second
container was in the total of the value of USD 85,079. After giving credit for amount of USD
44,000 (being that portion of the advance payment made by the claimant which was agreed to be
adjusted towards the price of the second container as set out in the preceding paragraph), an
amount of USD 41,079 was payable by the claimant towards the material manufactured for the
second container. As aforesaid, till date, the claimant has wrongly refrained from giving
instructions for dispatch of the second container and has also not made payment of the balance
price thereof.
The said correspondence which ensued between the Respondent and Claimant in the aforesaid
regard, is also annexed at TAB-3 in the COD.
4.8 Subsequently, the claimant called upon the Respondent to send the biscuit packaging for
testing to SGS India. The Claimant informed the Respondent that the Claimant would send a
sample to the Respondent, which the Respondent was to forward to SGS India. Being confident
that the material supplied by the Respondent was not defective, and so as to put the Claimant’s
allegations/ doubt to rest, the Respondent agreed to the testing. According, samples for testing
were sent to SGS India by the Respondent (by way of forwarding a sample sent by the claimant
for this purpose).