Nuclear Power Corporation Of ... vs Canbank Mutual Fund & Ors.
2012 Latest Caselaw 1700 Del

$~R-37
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: March 13, 2012

+                       RFA(OS) 83/2007

       NUCLEAR POWER CORPORATION OF INDIA
                                           ..... Appellant
           Represented by: Mr.Arun Batta, Advocate

                              versus

       CANBANK MUTUAL FUND & ORS. ....Respondents
           Represented by: Mr.Jay Savla with Ms.Meenakshi
                           Ogra and Mr.Shilpi Choudhary,
                           Advocates

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE PRATIBHA RANI


PRADEEP NANDRAJOG, J. (Oral)

1. The issue at hand is short and thus, we shall be brief; additionally for the reason we are affirming the impugned decision dated September 10, 2007. The reasoning by the learned Single Judge is correct and each and every word spoken is affirmed by us.

2. Brushing aside the first three technical issues, pertaining to the plaint being signed and verified and the suit instituted by a duly authorized person; the suit being barred by res judicata; and being barred by limitation, the core issue was: Whether with the payment of `5.5 crores made by the defendant to the plaintiff on March 31, 1999, was by way of a full and final settlement being given effect to.

3. The issue argued in appeal is premised on the said issue, which we find is linked to the next two issues which

were settled on September 02, 2005 i.e. whether the payment made on March 31, 1999 was pursuant to a meeting held on March 03, 1999. Needless to state if it was opined or held that `5.5 crores paid by the defendant to the plaintiff on March 31, 1999 was not in furtherance of the meeting held on March 03, 1999, the suit had to succeed for the reason the plaintiff would be entitled to first appropriate the money received towards interest and then the principal amount and sue for the balance.

4. We highlight that the reasoning of the learned Single Judge, while deciding the said three issues, is to be found in paras 47 to 63 of the impugned decision.

5. Now, it is not in dispute that pertaining to the bonds issued by the appellant and purchased by Canbank Financial Services Ltd. (Canfina) there was a dispute on the subject of money payable by Canfina to the appellant i.e. Nuclear Power Corporation of India. There was no such issue pertaining to any money payable by Canbank Mutual Fund to the appellant. But the appellant held back payment even to Canbank Mutual Fund.

6. The principal trustee of Canbank Mutual Fund, which also happens to be the principal trustee of Canfina i.e. Canara Bank had discussions with the officers of the appellant and various meetings were held, record whereof was minuted. One such meeting is dated March 03, 1999.

7. Though the minutes of the meeting form part of the record of the suit, but we find that the same are not exhibited. A document Ex.DW-1/7, being appellant's letter has been exhibited and there is a reference therein to a meeting held on March 03, 1999. The minutes of the said meeting have been filed along with the said letter, but have not been exhibited.

8. The said minutes, treating them to be proved, record a settlement between the Additional Secretary, Department of Atomic Energy, the representatives of the appellant, representatives of Canara Bank and Canfina. No representative of Canbank Mutual Fund is recorded as being present. The minutes referred to a dispute between NPCIL i.e. the appellant and Canara Bank/Canfina. There is no reference in the minutes to Canbank Mutual Fund.

9. Thus, the attempt of learned counsel for the appellant to urge that since Canara Bank, the principal trustee of Canbank Mutual Fund participated in the meeting and agreed to the decision minuted therein, it binds Canbank Mutual Fund, is negated by us for the reason the minutes clearly evidence the thrust to resolve the dispute between the appellant and Canfina. This is the reason why representatives of Canfina were present and no representative of Canbank Mutual Fund was present. The appellant is unnecessarily trying to take advantage of it being recorded in the minutes that the ongoing dispute between NPCIL and Canara Bank/Canfina was being resolved by highlighting the presence of Canara Bank.

10. That apart, we have a more weighty reason to hold against the appellant. The same is that the minutes of the meeting dated March 03, 1999 resulted in a written agreement, Ex.DW-1/1 which clearly records the settlement between Canfina and the appellant. Not only that. The bonds which were the subject matter of settlement are listed out in Annexure-1 to the agreement and learned counsel for the appellant concedes that the bonds, on the strength of which Canbank Mutual Fund instituted the suit, i.e. Ex.PW-1/1 to Ex.PW-1/9 also exhibited as Ex.P-2 to Ex.P-10 are not

mentioned in Annexure-1 to the agreement Ex.DW-1/1 which has been signed between the parties on March 31, 1999.

11. It is settled law that when negotiations between parties culminate in a written agreement, it is the written agreement which binds and not what was discussed. Ex.DW- 1/1 has been signed i.e. executed by Canfina and the appellant. Canbank Mutual Fund is not a signatory thereto. Further, the voucher Ex.DW-1/10 of the appellant, under cover of which they tendered payment to Canbank Mutual Fund does not record that the payment tendered was towards a full and final offer, or under any settlement.

12. We highlight that it is otherwise not in dispute between the parties that Canbank Mutual Fund was the registered holder of 9 bond certificates, Ex.PW-1/1 to Ex.PW- 1/9 and was entitled to a sum of `5.5 crores, being the principal sum on the redemption date recorded on the bonds i.e. August 22, 1997 and the bonds were issued on December 14, 1992. Six monthly interest was paid by the appellant as and when it was due till the bonds matured, but the principal sum of the bonds was not paid on August 22, 1997 and there was thus a claim of Canbank Mutual Fund to the principal sum mentioned in the bonds as also interest towards late payment. The appellant paid `5.5 crores to Canbank Mutual Fund on March 31, 1999. By said date interest in sum of `41,81,000/- calculated @ 13% per annum i.e. the sum mentioned in the bond, had become due. Thus, the respondent appropriated said sum towards interest and the balance towards principal for the reason while tendering payment, the appellant had not directed the same to be appropriated in a particular manner, and even otherwise, had it been so done, it would have made

no difference because by said date interest accrued was in any case `41,81,000/-.

13. We have briefly highlighted the core issue with reference to Ex.DW-1/1 to bring home the point which the learned Single Judge has brought out by discussing the entire gamut of evidence, which we do not re-discuss for the reason we adopt the reasoning of the learned Single Judge on the subject.

14. The appeal is dismissed.

15. Noting that the decretal amount is lying deposited in this Court in terms of the order dated November 30, 2007, which amount has been invested in a Fixed Deposit, we direct the Registry of this Court to endorse the FDR in the name of the respondent No.1 and hand over the same to the counsel on record. We note that respondents No.2 to 5 are the trustees of respondent No.1.

16. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 13, 2012 rk