Calcutta High Court

Skipper Limited vs Power Grid Corporation Of India Limited ... on 20 August, 2024

                  IN THE HIGH COURT AT CALCUTTA
                             ORIGINAL SIDE
                        COMMERCIAL DIVISION




Present:

The Hon'ble Justice Krishna Rao



                        GA (COM) No. 1 of 2024

                                   And

                        GA (COM) No. 2 of 2024

                                    In

                          CS (COM) 14 of 2024


                             Skipper Limited

                                  Versus

           Power Grid Corporation of India Limited & Anr.




           Mr. Sabyasachi Choudhury
           Mr. Shounak Mukhopadhyay
           Ms. Manisha Das
           Mr. Sayantan Bose
           Ms. Ankita Choudhury
                                             ... for the plaintiff.
           Mr. Abhrajit Mitra, Sr. Adv.
           Mr. Aritra Basu
           Mr. Uttam Kumar Mondal
           Ms. Maitree Roy
                                           ... for the defendant no.1.
                                        2


            Mr. Abhimanyu Banerjee
            Mr. Anirban Basak
            Mr. Arnab Saha
                                               ... for the defendant no. 2.


Hearing Concluded On : 12.07.2024

Judgment on             : 20.08.2024

Krishna Rao, J.:

1. The plaintiff has filed the an application being G.A. (Com) No. 1 of 2024

praying for judgment and decree on admission for the principal sum of

Rs. 1,54,97,964/- against the defendant no.1 and interest at the rate of

24% per annum till the realization of the total amount. The defendant

No.1 has filed an application being G.A. (Com) No. 2 of 2024 for

revocation of leave granted under Clause 12 of the Letters Patent, 1865

and for return of plaint under Order 7, Rule 10 of the Code of Civil

Procedure, 1908.

2. The plaintiff has filed the suit for decree of Rs. 2,01,14,234/- along

with interest at the rate of 24% per annum. The plaintiff carries on

business of galvanized steel tubular poles and associated accessories.

The defendant no.1 carries various infrastructure projects in relation to

transmission, supply and distribution of power.

3. The defendant no.1 undertook a project of comprehensive scheme for

strengthening of transmission and distribution system in the State of

Arunachal Pradesh. In order to give effect to the said scheme or

carryout diverse works in relation thereto, supply of galvanize steel

tubular poles of 12 meters and 14.5 meters were required. The

defendant no.1 in order to give effect to the said scheme entered into a

contract with the defendant no. 2 on 1st October, 2021.

4. The defendant no.2, in turn placed two purchase orders to the plaintiff

on 1st November, 2021 and 31st January, 2022 for supply of galvanized

steel tubular poles of 12 meters and 14.5 meters. The purchase orders

contained an arbitration clause and a forum selection clause,

conferring exclusive jurisdiction upon "Hyderabad courts". The plaintiff

has delivered goods at the site of the defendant no.1 at Yingkiong,

Upper Siang, Arunachal Pradesh.

5. On 5th February, 2022, the defendant no.1 has issued a "Comfort

Letter" in favour of the plaintiff stating that as requested by the

defendant no. 2, the defendant no.1 will release direct payment after

receipt of materials /equipment at site to the plaintiff within 30 days as

per terms and conditions with the defendant no. 2.

6. Mr. Choudhury submitted that by a letter dated 8th August, 2022, the

defendant no.2 has admitted that an amount of Rs. 251.78 lacs is due

and payable to the plaintiff by the defendant no. 2. The defendant no. 2

by an email dated 9th August, 2022 forwarded the payment schedule to

the defendant no.1 submitted to the plaintiff. He submits that by an

email dated 10th August, 2022, the defendant no. 1 extended the time

of comfort letter by agreeing to pay the dues of the plaintiff if the

defendant no. 2 failed to make payment to the plaintiff within 7 days.

7. Mr. Choudhury submitted that though the validity period of the comfort

letter was initially for a period of two months, the validity was extended

by mutual consent of the plaintiff and the defendant no. 1 as per the

correspondences exchanged between the parties. He submits that it is

admitted position that all the goods were duly received by the

defendant no. 1. He submits that in terms of the comfort letter dated

5th February, 2022, the defendant no. 1 had an obligation to release

direct payment to the plaintiff against the supplies within 30 days but

the defendant no. 1 failed and neglected to release any payment to the

plaintiff.

8. Mr. Choudhury submitted that the email dated 10th August, 2022, is

not only an unequivocal admission of the liability of the defendant no. 1

but also an expressed and implied extension of the comfort letter and

its obligation contained therein. He submits that the obligation of the

defendant no. 1 is to make direct payment to the plaintiff and such

obligation is not only a part of the payment terms of the contract

entered between the defendant no. 2 and the plaintiff but also

otherwise confirmed and acknowledged by the defendant no. 1, not only

by comfort letter dated 5th February, 2022 but also by its email dated

10th August, 2022.

9. Mr. Choudhury submitted that during the period between March, 2022

and November, 2022, the plaintiff received a further payment of Rs.

96,80,786/- in three tranches from the defendant no. 2. He submits

that after giving due credit to the said sum of Rs. 96,80,786/- and after

adjusting thereof against the balance outstanding of Rs.2,51,78,750/-,

there remained due and payable by the defendant no. 1 to the plaintiff

for a sum of Rs. 1,54,97,964/-.

10. Mr. Choudhury submitted that the email dated 10th August, 2022, was

issued by the defendant no. 1 after the balance principal due of Rs.

251.78 lacs was admitted and confirmed by the defendant no. 2. He

submits that by the said email, the defendant no.1 admitted and

acknowledged its liability to make payment of any and all amounts

which remained unpaid to the plaintiff.

11. Mr. Choudhury has relied upon the judgment in the case of Lucent

Technologies Inc. -vs- ICICI Bank Ltd. & Ors. reported in 2009 SCC

OnLine Del 3213 and submitted that it is the duty of the court to

construe correspondence with a view to arrive at a conclusion whether

there was any meeting of mind between the parties, which could create

a binding contract between them but the Court is not empowered to

create a contract for the parties by going outside the clear language

used in the correspondence, except in so far as there are some

appropriate implications of law to be drawn.

12. Per contra, Mr. Abhrajit Mitra, Learned Senior Advocate representing

the defendant no. 1 submitted that the plaint filed by the plaintiff does

not disclose any cause of action. He submits that this Court does not

have any jurisdiction to try and entertain and determine the present

suit and the application filed by the plaintiff.

13. Mr. Mitra submitted that no case has been made out by the plaintiff for

grant of judgment and decree on admission for an amount of Rs.

1,54,97,964/-. He submits that the comfort letter on the basis of

which, the plaintiff has filed the present application is not a letter of

guarantee.

14. Mr. Mitra submitted that the comfort letter dated 5th February, 2022

was issued on the premise that the defendant no. 2 issued a purchase

order dated 1st November, 2021. But the defendant no. 1 was not aware

regarding the amended purchase orders containing the revised

payment terms. He submits that defendant no. 1 cannot be made liable

for the purported dues of the plaintiff that arose on account of revised

purchase orders dated 31st January, 2022.

15. Mr. Mitra submitted that from the comfort letter dated 5th February,

2022, the plaintiff did not have any right to claim any direct payment

from the defendant no. 1. He submits that it was always the

understanding between the parties that after delivery of the said goods

by the plaintiff, invoice issued by the plaintiff would be made over by

the defendant no. 2 to the defendant no. 1. He submits that the parties

were also proceeding on the premise that only upon failure to make

payment of the dues of the plaintiff by the defendant no. 2, the

defendant no. 1 will be held liable to make payment.

16. Mr. Mitra submitted that on various occasions, beyond the time

specified in the Comfort Letter dated 5th February, 2022, payment was

made directly by the defendant no. 2 to the plaintiff. He submitted that

the payable amount as per the terms of the contract has already been

made to the defendant no. 2 by the defendant no. 1 as per supplies

made by the plaintiff.

17. Mr. Mitra submitted that there are pending disputes between the

defendant no. 1 and the defendant no. 2 that have arises from the

contracts both dated 1st October, 2021. He submitted that the disputes

and differences that arose between the defendant no. 1 and defendant

no. 2, an arbitral reference is commenced before the Arbitral Tribunal.

18. Mr. Mitra submitted that the Comfort Letter is subject to fulfillment of

the conditions as recorded in the letter dated 5th February, 2022. He

submitted that the conditions mentioned in the Comfort Letter, the

plaintiff has to fulfill for the purpose of making the defendant no. 1

liable for payment.

19. Mr. Mitra submitted that no particular amount has been admitted by

the defendant no. 1 in its email dated 10th August, 2022. He submitted

that an additional condition before payment is imposed by the

defendant no. 1 in its email dated 10th August, 2022. He submitted that

the email dated 10th August, 2022 has to be read in its entirety and the

expression "Power Grid" will make payment cannot be read without

reading all other statements in the said email.

20. Mr. Mitra submitted that the plaintiff has not made any averment

either in the plaint or in the present application that the plaintiff has

fulfilled the conditions of the Comfort Letter. He submitted that it is

also not the case of the plaintiff that any condition in the Comfort

Letter has been waived by the defendant no. 1 or has become

redundant for any particular reason.

21. Mr. Mitra submitted that judgment upon admission under Order 12

Rule 6 without trial can be granted only if the admission is clear,

unambiguous and unconditional, but in the present case, there is no

clear, unambiguous and unconditional admission made by the

defendant no. 1.

22. Mr. Mitra submitted that entire cause of action arose outside the

jurisdiction of this Court neither the purchase orders, comfort letter nor

the email were issued within the jurisdiction of this Court. He

submitted that in the purchase order, contains a forum selection clause

and as per the said clause, Hyderabad courts only having jurisdiction

with regard to all disputes between the parties.

23. Mr. Mitra in support of his submission has relied upon the following

judgments:

(i) Omega Shelters Pvt. Ltd. vs. Unit Construction Co.

Pvt. Ltd. & Ors., reported in 2009 SCC OnLine Cal 2117;

(ii) Gail India Ltd. vs. UCO Bank and Another, reported in 2023 SCC OnLine Del 7194;

(iii) Road Machines (India) Pvt. Ltd. vs. The Projects and Equipment Corporation of India Ltd. and Another, reported in 1982 SCC OnLine Cal 8;

(iv) Veer Probhu Marketing Limited and Ors. vs. National Supply Corporation and Ors., reported in AIR 2006 Cal 301;

(v) Besco Ltd. vs. State Bank of India & Anr., reported in 2009 SCC OnLine Cal 2406;

(vi) Iron & Steel Co. Ltd. vs. Tiwari Road Lines, reported in (2007) 5 SCC 703;

(vii) Hindustan Construction Co. Ltd. vs. State of Bihar and Ors. with State of Bihar and Others vs. Hindustan Construction Co. Ltd. and Others, reported in (1999) 8 SCC 436;

(viii) Unreported judgment in the case of The Tata Iron & Steel Co. Ltd. vs. Mideast Integrated Steels Ltd., in APO 264 of 1999 in CS 170 of 1998;

(ix) Motabhoy Mulla Essabhoy vs. Mulji Haridas, reported in 1915 SCC OnLine PC 10;

(x) Coal India Ltd. vs. Appejay Private Ltd., reported in 2009 (4) CHN 192;

(xi) Himani Alloys Limited vs. Tata Steel Limited, reported in (2011) 15 SCC 273.

(xii) South East Asia Shipping Co. Ltd. -vs- Nav Bharat Enterprises Pvt. Ltd. & Ors. reported in (1996) 3 SCC 443.

(xiii) Hellenic Electricity Distribution Network Operator S.A. vs. Bharat Heavy Electricals Ltd. & Ors.

reported in MANU/DE/1534/2016.

24. Heard the Learned Counsel for the respective parties, perused the

materials on record and the judgments relied upon by the parties. The

plaintiff relied upon the Comfort Letter dated 5th February, 2022,

issued by the defendant no. 1 and the plaintiff has relied upon the

following clauses of the said letter :

"3.0. In this regard M/s. Naolin Infrastructure Pvt. Ltd., has approached POWERGRID to issue comfort letter in your favour assuring payment to expedite supply of above equipment/materials.

5.0. that we, on our part are issuing this Comfort Letter to you is being issued, as requested and agreed by M/s. Naolin Infrastructure Pvt. Ltd. Powergrid will release payments after receipt of materials/equipment at site, POWERGRID will release direct payment to you against the supplies as shall be due to you within 30 Days as per T&C with M/s. Naolin Infrastructure Pvt. Ltd. in the matter as under:

 Payment shall be made on receipt of materials and equipment site duty verified jointly with your representative and on submission of properly raised Bill/invoice/documents by M/s. Naolin Infrastructure Pvt. Ltd. along with a declaration for indemnifying POWERGIRD against any statutory defaults. It may kindly be appreciated that as per POWERGRID norms, no advance payment will be possible to be made.

 Direct payment to you shall be to the extent of amount which will be due to M/s. Naolin Infrastructure Pvt. Ltd. against supplies made by you on their behalf and as per terms of POWERGRID's following contracts with them:

CC-CS/1073-NER/REW-4244/3/G2/CA-I/9229 dtd: 1.10.2010 (ARP-DMS-05A) CC-CS/1073-NER/REW-4244/3/G2/CA-I/9231 dtd: 1.10.2021 (ARP-DMS-05B)

However, if there is any differential amount that will be payable over and above the amount due to M/s. Naolin Infrastructure Pvt. Ltd., PWOERGRID

shall try to liquidate the same from other payable dues of M/s. Naolin Infrastructure Pvt. Ltd. on their authorization to POWERGRID if necessitated."

The comfort letter was valid upto two months from the date of

issue or extension thereof. The defendant no. 1 by an email dated 10th

August, 2022 informed the defendant no. 2 copy whereof also

forwarded to the plaintiff stated that the payment should be made to

the plaintiff directly by the defendant no. 2 within seven days otherwise

the defendant no. 1 will make payment as per the terms and conditions

of the comfort letter and also till the clearance of due payment of all

suppliers, no payment shall be released in favour of the defendant no.2.

By the said email dated 10th August, 2022, the validity of the

comfort letter dated 5th February, 2022 is extended.

25. Now the question whether the comfort letter dated 5th February, 2022

and the email dated 10th August, 2022 is a clear, unambiguous and

unequivocal admission on behalf of the defendant no. 1 and whether on

the basis of the said documents, the plaintiff is entitled to get decree on

admission.

There is another question raised by the defendant no. 1 that no

cause of action arose within the jurisdiction of the Court and in the

work order, there is forum selection clause in which the courts of

Hyderabad having jurisdiction to decide the disputes between the

parties.

26. Before deciding whether the comfort letter dated 5th February, 2022

and the email dated 10th August, 2022 are the unequivocal admission

on the part of the defendant no. 1, this Court is of the view that the

dispute raised by the defendant no. 1 with regard to jurisdiction is to be

decided first.

27. The purchase orders issued by the defendant no. 2 to the plaintiff

contains forum selection clause which reads as follows:

"All disputes are subjected to jurisdiction of Hyderabad courts only"

The defendant no. 2 had issued purchase orders dated 1st

November, 2021 and 31st January, 2022 from Arunachal Pradesh to

the plaintiff at Kolkata within the jurisdiction of this Court. In the

purchase orders, it is mentioned that the billing details mentioned are

as follows "M/s. Naolin Infrastructure Private Limited #6-3-1090/1/1/3,

3rd Floor, Uma Hyderabad House, Raj Bhavan Road, Somajiguda,

Hyderabad - 500 082".

The defendant no. 1 has issued comfort letter dated 5th February,

2022 to the plaintiff at Kolkata address. The email dated 8th August,

2022 and the email dated 10th August, 2022 were also sent to the

plaintiff at Kolkata. The plaintiff had sent a notice on 6th June, 2023 to

the defendant no. 1 from Kolkata with the request for release of the

payment of the Rs.1,54,97,964/- along with interest. The Counsel for

the defendant no. 1 had sent a reply to the plaintiff to the legal notice

dated 6th June, 2023 at Kolkata within jurisdiction of this Court.

Though in the purchase orders contains the forum selection clause

but all the correspondences were made by the defendant no. 1 as well

as the defendant no. 2 with the plaintiff at Kolkata and the plaintiff in

the plaint has also categorically stated that cause of action arose within

the jurisdiction of this Court.

28. Mr. Mitra relied upon the judgment in the case of Hellenic Electricity

Distribution Network Operator S.A (supra) but in the said case the

contract between the parties were executed at Bombay and had to be

performed at Bombay, it was held that merely because the bank

guarantee was executed by a bank at Delhi in terms of the mother

contract would not constitute a cause of action at Delhi to file a suit.

But in the present case, the purchase orders were issued from

Arunachal Pradesh, materials are to be supplied at Arunachal Pradesh

and as per the condition, the forum selection clause is mentioned as all

courts of Hyderabad but all the correspondences were made by the

defendants with the plaintiff at Kolkata and the plaintiff had raised

claim from Kolkata and the defendant no. 1 sent a reply to the notice of

the plaintiff at Kolkata and as such the facts of the judgment relied by

Mr. Mitra is distinguishable from the facts of the present case.

29. Mr. Mitra relied upon the judgment in the case of South East Asia

Shipping Company Limited (supra) but in the said case, the Hon'ble

Supreme Court held that it is settled law that the cause of action

consists of bundle of facts which give cause of enforce the legal injury

for redress in a court of law. The cause of action means, therefore,

every fact, which if traversed, it would be necessary for the plaintiff to

prove in order to support his right to a judgment of the Court. In other

words, it is bundle of facts, which taken with the law applicable to

them, gives the plaintiff a right to claim relief against the defendant. It

must include some act done by the defendant since in the absence of

such an act no cause of action would possibly accrue or would arise.

But in the present case though in the contract the forum selection

clause is mentioned but from the acts of the defendants cause of action

also arose at Kolkata as all the correspondences were made at the

Kolkata address of the plaintiff and as such the judgment is

distinguishable from the facts of this case.

30. Mr. Mitra relied upon the judgment in the case of Iron and Steel Co.

Ltd. (supra) but in the said case also the tender was submitted at

Kolkata, an agreement was executed between the parties at Kolkata

and the defendants have furnished bank guarantee at Kolkata then the

said case is also distinguishable from the facts of the present case.

31. The defendant no.1 has relied upon the forum selection clause of the

contract between the plaintiff and the defendant no. 2 but in the

present case though the plaintiff has made the defendant no. 2 as party

to the suit but has not prayed for any relief against the defendant no. 2

This Court finds that the plaintiff has prayed for a decree of sum of

Rs.1,54,97,964/- along with interest, total sum of Rs.2,01,14,234/-

from the defendant no. 1 on the basis of the comfort letter issued by the

defendant no. 1 to the plaintiff. There is no agreement or contract

entered between the plaintiff and the defendant no. 1 with regard to

forum selection clause. Considering the above, this Court finds that the

cause of action arose within the jurisdiction of this court and this Court

has the jurisdiction to entertain the suit filed by the plaintiff.

32. The plaintiff has prayed for judgment and decree upon admission on

the basis of the comfort letter issued by the defendant no. 1 to the

plaintiff dated 5th February, 2022 and the email dated 10th August,

2022. The Comfort Letter dated 5th February, 2022, reads as follows:

"Ref: NEIT/C&M/2021-22/Comp.Sch/ARP-DMS- 05A&B/100-55/ Date:05/02/2002

COMFORT LETTER

To M/s Skipper Ltd 3A, Mayur Apartment Loudon Street, Shakespeare Sarani Kolkata W. Bengal 700017

Kind Atten: Mr Rajan Gupta

Sub: Comfort Letter for Supply of Galvanized Steele Tubular Poles of 12 Mtrs & 14.5 Mtrs for DMS Package: ARP-DMS-05A & 05B under Comprehensive Scheme for Strengthening of Transmission and Distribution System in Arunachal Pradesh.

Ref: 1) Contract No. CC-CS/1073-NER/REW- 4244/3/G2/CA-1/9229&9231 dated 1.10.2021

2) PO No. PO/NIPL/PGCIL-ARP/21-22/002dated 01.11.2021 placed by M/s Naolin Infrastructure on M/s Skipper Ltd.

Dear Sir,

1.0 That we have awarded contracts to M/s Naolin Infrastructure Pvt Ltd, Hyderabad for execution of the subject work and for which M/s Naolin Infrastructure have placed purchase orders on you, you being the approved vendor of POWERGRID, for Supply of Galvanized Steele Tubular Poles of 12 Mtrs & 14.5 Mtrs for Package ARP-DMS- 05A & 05B under Comprehensive Scheme for Strengthening of Transmission & Distribution System in Arunachal Pradesh.

2.0 That for completion of the work at the earliest, it is imperative that equipment and the materials under your scope of supply are delivered on top most priority.

3.0 In this regard M/s Naolin Infrastructure Pvt Ltd, has approached POWERGRID to issue comfort letter in your favor assuring payment to expedite supply of above equipment/materials.

4.0 That you being one of our esteemed vendors, it will be expected that you will help POWERGRID in all possible ways by supplying the balance materials and equipment on top most priority so that POWERGRID can complete the installation within the schedule time and meet the commitment to Govt. of India.

5.0 That we, on our part are issuing this Comfort Letter to you is being issued, as requested and agreed by M/s Naolin Infrastructure Pvt. Ltd. Powergrid will release direct payments after receipt of materials/equipment at site, POWERGRID will release direct payment to you against the supplies as shall be due to you within 30 Days as per T&C

with M/s. Naolin Infrastructure Pvt. Ltd. in the matter as under:

 Payment shall be made on receipt of materials and equipment at site duly verified jointly with your representative and on submission of properly raised Bill/invoice/documents by M/s. Naolin Infrastructure Pvt. Ltd. along with a declaration for indemnifying POWERGRID against any statutory defaults. It may kindly be appreciated that as per POWERGRID norms, no advance payment will be possible to be made.

 Direct payment to you shall be to the extent of amount which will be due to M/s. Naolin Infrastructure Pvt. Ltd. against supplies made by you on their behalf and as per terms of POWERGRID's following contracts with them:

CC-CS/1073-NER/REW-4244/3/G2/CA- I/9229 dtd: 01.10.2021 (ARP-DMS-05A) CC-CS/1073-NER/REW-4244/3/G2/CA- I/9231 dtd: 01.10.2021 (ARP-DMS-05B)

However, if there is any differential amount that will be payable over and above the amount due to M/s Naolin Infrastructure Pvt. Ltd., POWERGRID shall try to liquidate the same from other payable dues of M/s Naplin Infrastructure Pvt Ltd on their authorization to POWERGRID if necessitated.

6.0 If POWERGRID have to make direct payment through LC to the sub-vendor i.e., M/s Skipper Limited then an amount equivalent to LC charges at the applicable SBI rates for the validity period of this comfort letter or as extended will be deducted from the vendor i.e., M/s Naolin Infrastructure Pvt. Ltd. along with taxes thereon.

7.0 That on supply of materials you will submit your claim in the form of contract with M/s. Naolin Infrastructure, Hyderabad along with supporting documents as per terms of the contract with M/s Naolin Infrastructure Pvt. Ltd, Hyderabad. Copy of which (invoice etc.) shall also be sent to POWERGRID, Itanagar Office along with an undertaking on your letter head certifying the correctness of the amount so claimed as per your contract with M/s Naolin Infrastructure Pvt. Ltd, Hyderabad.

8.0 That further, you will also send a priced copy of your order placed by M/s Naolin Infrastructure Pvt. Ltd, Hyderabad so that POWERGRID can verify the amount admissible to you before release of the payment to you,

9.0 That we will request you to honor this comfort letter for direct payment and take priority action for supply of Galvanized Steele Tubular Poles of 12 Mtrs & 14.5 Mtrs for Package ARP DMS 05A&5B under Comprehensive Scheme for Strengthening of Transmission & Distribution System in Arunachal Pradesh and help POWERGRID in meeting the targets.

10.0 This comfort letter shall be valid up to 02 months from the date of issue or extension thereof

Thanking you,

Yours faithfully, For and on behalf of Power Grid Corporation of India Limited,

(NS Thakur) C G M, Itanagar."

33. The email dated 10th August, 2022, sent by the defendant no. 1 to the

plaintiff as well as to the defendant no. 2 reads as follows :

"From: N S Thakur [mailto:[email protected]] Sent: Wednesday, August 10, 2022, 11:21 AM

To:Vijayaranjan<[email protected] m>;[email protected] Cc:[email protected];dharmendra.singh@skippe rlimited.com; Gyaneshwar Prasad Payasi <[email protected]>; Adish Kumar Gupta <[email protected]>

Subject: Re: NIPL Payment Schedule - M/s. Skipper Ltd.

Dear Mr. Vijay Rajan

Please note that payment should be made to M/s Skipper Ltd directly by M/s Naolin Infra Ltd within 07 days otherwise Powergrid will make payment as per the terms and condition of comfort letter. Also till the clearance of due payments of all supplier no payments shall be released to your company. Matter may please be treated as most urgent.

With Best Regards, N S Thakur Chief General Manager Contact: 09001890546"

34. The defendant no.1 has issued comfort letter dated 5th February, 2022

to the plaintiff as per request and agreed by the defendant no.2 that the

defendant no. 1 will release payments after receipt of the materials/

equipment at site, the defendant no. 1 will release direct payment to

the plaintiff against the supplies within 30 days.

35. As per Clause 5.0 of the Comfort Letter, payment shall be made on

receipt of materials and equipment at site duly verified jointly with the

representative of the plaintiff and on submission of properly raised

bill/invoice/documents by the defendant no.2 along with a declaration

for indemnifying defendant no.1 against any statutory defaults. The

plaintiff has not disclosed any document to establish that materials and

equipment were jointly verified and submitted bill/invoice/documents

to the defendant no.2 along with declaration for indemnifying defendant

no.1 against any statutory defaults.

The plaintiff also not disclosed any documents to say that the

plaintiff has complied with the terms and conditions of the contract. As

per Clause 7.0, the plaintiff has to submit its claim in the form of

contract with the defendant no.1 along with supporting documents as

per terms of the contract and the copy of the same to be sent to the

defendant no.1 with an undertaking that about the correctness of the

amount claimed by the plaintiff but no such documents are placed on

record or any averments were made in the present application.

36. In the case of Himani Alloys Limited (Supra), the Hon'ble Supreme

Court held that:

"11. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear,

unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon."

37. In the case of Motabhoy Mulla Essabhoy (Supra), the Privy Council

held that an admission in pleading cannot be so dissected, and if it is

made subject to a condition, it must either be accepted subject to

condition or not accepted at all.

38. In the present case in the comfort letter, the defendant no.1 has

admitted that defendant no.1 will release payments after receipt of

materials/ equipment at site but the said admission is with conditions

as mentioned in sub clauses of Clause 5.0, Clause 7.0, 8.0 and 9.0.

The plaintiff has not disclosed any documents with regard to fulfilment

of the conditions in the said letter. Even after issuance of comfort letter

dated 5th February, 2022, the defendant no.2 has paid some amount to

the plaintiff. It is also the case of the defendant no.1 that the defendant