Chemical Systems Technologies ... vs Simbhaoli Sugar Mills Ltd.
2013 Latest Caselaw 484 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 1st February, 2013

+                    CS(OS) 1480/2009 & CC No.27/2010.


       CHEMICAL SYSTEMS TECHNOLOGIES (INDIA)
       PVT. LTD.                                  ..... Plaintiff
                   Through: Mr. Jayant Nath, Sr. Adv. with Mr.
                            Udit Gupta, Adv.


                                     Versus


       SIMBHAOLI SUGAR MILLS LTD.                           ..... Defendant
                          Through:      Mr. Nalin Tripathi, Mr. Anurag
                                        Sharma & Mr. Gautam Talukdar,
                                        Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

IA No.4234/2012 (u/O 12 R-6 CPC).

1.

The plaintiff has sued for recovery of Rs.1,28,16,407/- being the

balance of the price of the new technology for Cane Juice Purification sold,

supplied, erected and commissioned by the plaintiff to/for the defendant,

together with interest and cost. The defendant, besides contesting the said

claim of the plaintiff, has also filed a counter claim for refund of the

advance price of Rs.1 crore paid to the plaintiff. After the pleadings have

been completed and admission/denial of documents done, the plaintiff has

applied for a decree under Order 12 Rule 6 of the CPC on admissions. The

defendant has filed a reply contesting the said application. The counsels

have been heard.

2. The transaction between the parties is pursuant to a Purchase Order

dated 11th February, 2006 placed by the defendant on the plaintiff, detailing

the scope of supply, the technical services to be provided by the plaintiff to

the defendant, etc. The said document filed by the plaintiff has been

admitted by the defendant and Exhibit P-1 put thereon. The price, as per the

said document, payable by the defendant to the plaintiff was

Rs.1,97,50,000/- inclusive of customs duty, packing, forwarding and

insurance but exclusive of Sales Tax @ 4% against Form „C‟ and freight,

and payable by the defendant to the plaintiff as under:-

         Advance                              -            Rs.100.00 lacs

         Against delivery at site, pro-rata   -                  80.00 lacs

         Completion of erection at site       -                  10.00 lacs

         On commissioning                     -                   7.50 lacs

                                                            Rs.197.50 lacs

3. It is also the admitted position that the equipment under the

aforesaid Purchase Order was delivered by the plaintiff to the defendant and

erected at the Mill of the defendant and Minutes of Meeting dated 20th

January, 2007 drawn. The said document filed by the plaintiff has been

admitted by the defendant and Exhibit P-2 put thereon. The said document,

against as many as 19 items, under the head „Erection & Trials', records

satisfaction of the defendant.

4. The plaintiff, between 25th October, 2006 & 17th January, 2007

raised invoices on the defendant, of the total value of Rs.2,28,16,407/-, also

containing the particulars of the successive dispatches made by the plaintiff

to the defendant and copies thereof filed by the plaintiff, have been admitted

by the defendant and Exhibit P-3 to Exhibit P-17 put thereon.

5. The defendant issued Form „C‟ dated 17th March, 2007 and 5th June,

2007 to the plaintiff for purchases of the value of Rs.2,19,86,967/- and

Rs.1,53,078/- respectively from the plaintiff. Copies thereof filed by the

plaintiff have been admitted by the defendant and Exhibit P-18 & P-19 put

thereon.

6. The defendant, vide letter dated 17th May, 2008 to the plaintiff stated

as under:-

"Sub: Shifting of membrance filtration system from our site

Dear Sir, This has reference to our earlier communication for the above, in which we had ruled out the possibility for making crystal sugar separately from filtered juice received out of membrance filtration with existing equipment and machinery in our factory and had requested you to take the system back, but till date no one has approached us for taking the system back. You are once again requested to give instructions to the concerned persons to take the above system back."

The original letter filed by the plaintiff has been admitted by the

defendant and Exhibit P-20 put thereon.

7. The defence of the defendant to the claim of the plaintiff is:-

(a). that the plaintiff had represented to the Technology

Information, Forecasting and Assessment Council (TIFAC) that

it had requisite expertise and experience in designing, supplying

and erecting plant and machinery for production of refined

quality sugar through Cane Juice Clarification using

„Membrane Separation Technology‟ and the defendant on the

assurance of TIFAC, placed an order for erection of one such

plant at its site, on the plaintiff, after entering into an

Agreement dated 10th February, 2006 with TIFAC;

(b). that the advance of Rs.1 crore to the plaintiff was paid by

TIFAC and the balance amount was also to be paid by TIFAC

after successful operation of the plant;

(c). that TIFAC is a necessary party to the suit;

(d). that trials on the equipment/technology supplied by the plaintiff

to the defendant started on 20th January, 2007 but no production

was possible;

(e). that though the plaintiff repeatedly attempted to rectify the

system but failed;

(f). that the „C‟ Forms were issued assuming that the plant will

function properly;

(g). that on 17th May, 2008 the defendant, after waiting for one and

a half years, asked the plaintiff to take back the plant;

(h). though the plaintiff agreed to take back, but without refunding

the advance money of Rs.1 crore received or obtaining NOC

from TIFAC.

On the same pleas, the defendant has made a counter claim for

refund of the advance price of Rs.1 crore paid to the plaintiff.

8. The senior counsel for the plaintiff has contended that the terms &

conditions of supply stand admitted and the only parameter prescribed

therein to be achieved by the equipment supplied by the plaintiff is of "20

m3 / hour of raw cane juice". He has, to show the admission of the defendant

of the said parameter having been met, invited attention to the FIR dated 23rd

July, 2010 lodged by the defendant against the plaintiff relating to the same

transaction and in which it is stated:-

"Thereafter, the above- named persons tried to operate the Plant on clear juice but the plant, on clear juice also, could not go above the flow of 50 cube meter per hour, which was very less than the flow rate required in the system of the applicants"

The senior counsel for the plaintiff has argued that the aforesaid is

an admission of the defendant of more than prescribed parameter having

been achieved.

9. The counsel for the defendant has however on a reading of the entire

FIR showed that the grievance of the defendant therein also is of the plant

not working and of attempt made to run the plant on „clear juice‟ as distinct

from „raw cane juice‟ having also failed. It is argued that the flow of 50 cube

meter per hour mentioned in the FIR, is of „clear juice‟ and not „raw cane

juice‟ which the equipment was to purify.

10. Merit is found in the aforesaid contention of the counsel for the

defendant and the part of the FIR on which reliance is placed to show

admission of the prescribed capacity having been met, is not found to be an

unambiguous admission of the same.

11. The senior counsel for the plaintiff has then pegged his case on the

„C‟ Forms and has argued that the issuance thereof is an admission of the

balance price being due from the defendant to the plaintiff. It is argued that

the „C‟ Forms would not have been issued had the plaintiff not completed its

part of the contract contained in the Purchase Order aforesaid.

12. The senior counsel for the plaintiff has also contended that the

defendant has not written a single letter of rejection of the goods/equipment

supplied by the plaintiff; the letter dated 17th May, 2008 supra relied upon is

not of rejection on the ground of the equipment being not as per the order

but of return on the ground of the defendant ruling out the possibility for

making crystal sugar separately from filtered juice received out of

membrance filtration, owing to the same not matching with the existing

equipment and machinery of the plaintiff. It is yet further argued that the

defendant however did not allow the plaintiff to take back the equipment

also by putting unreasonable conditions on the plaintiff of obtaining no

objection from TIFAC and refunding the advance amount of Rs.1 crore. It is

yet futher argued that the FIR was got registered by the defendant, after the

institution of present suit and taking advantage of the local clout yielded by

the defendant. The senior counsel informs that there is stay of FIR from

Allahabad High Court.

13. Per contra the counsel for the defendant has invited attention to the

photocopy of the Agreement dated 10th February, 2006 between TIFAC and

the defendant and argued that the Purchase Order dated 11 th February, 2006

placed by the defendant on the plaintiff is of the very next date and it is

evident that TIFAC is a necessary party to the suit. He has further informed

that in fact TIFAC also has filed a suit for recovery of Rs.1 crore with

interest from the defendant and which is also pending adjudication in this

Court. He has further argued that issuance of „C‟ Forms cannot be an

admission of liability.

14. The senior counsel for the plaintiff in rejoinder has clarified that the

advance price of Rs.1 crore was paid to the plaintiff by the defendant,

though had been funded by TIFAC. He has also contended that there is no

reference to TIFAC in the Purchase Order and the liability for payment of

the balance price to the plaintiff as per the Purchase Order is of the

defendant only. Attention is also invited to yet another document being the

letter dated 21st September, 2008 of the defendant to the plaintiff seeking

confirmation from the plaintiff of the sum of Rs.1,21,37,542/- being due

from the defendant to the plaintiff. It is argued that the denial by the

defendant in admission/denial, of the said document is mala fide. Attention

is also invited to para 11 of the plaint containing reference to the said

document and to the corresponding para of the written statement of the

defendant to contend that the denial is not specific as required by law.

15. I have considered the rival submissions. The transaction subject

matter of suit is a commercial and documented one, between two corporate

entities. Such transactions cannot be viewed applying the principles of

construction of pleadings laid down in judgments/precedents of a bye-gone

era, relating to transactions of a different nature. Abraham Lincoln famously

said, "the dogmas of the quiet past, are inadequate to the stormy present - the

occasion is piled high with difficulty, and we must rise with the occasion - as

our case is new, so we must think anew and act anew". The plaintiff and the

defendant are located far away, in different States and in the present day of

availability of modes of communication through internet, the officers of

corporate entities, as the parties hereto, are known to prefer communicating

through email rather than telephonically. No law is forever and the forces of

progress often enough demand a change in the processes of law. Judgments

which are law have to keep pace with social demands and expectations from

Courts.

16. Though undoubtedly there is no document of successful

commissioning of the equipment and plant supplied by the plaintiff to the

defendant or of the same having achieved the capacity/parameters assured

but the satisfactory completion of erection of the said equipment and water

trials done, on 20th January, 2007 stands admitted. The plea of the defendant

in its written statement being that the plant and equipment supplied by the

plaintiff did not work, it has been enquired from the counsel for the

defendant whether any communication was sent by the defendant to the

plaintiff to this effect after 20th January, 2007. The counsel for the defendant

has candidly stated that save for the letter dated 17 th May, 2008 supra, there

is no other communication.

17. It is not the case of the defendant in its written statement even that

any telephonic calls or personal calls in this regard were made to the

plaintiff. The position which thus can be taken as admitted is that the

defendant, after the delivery of the equipment having been completed on 17 th

January, 2007 and satisfactory erection and water trials having been done on

20th January, 2007, neither complained that the plant equipment was not

performing as assured nor rejected the said goods supplied by the plaintiff

nor sought refund of the advance price. Attention of the counsels is invited

to Sections 41 & 42 of the Sales of Goods Act, 1930 whereunder a buyer is

deemed to have accepted the goods when he retains the goods for a

reasonable time without intimating to the seller that he has rejected them.

This Court in Lohmann Rausher Gmbh vs Medisphere Marketing Pvt.

Ltd. 117 (2005) DLT 95 held that the long gap after which goods were

ostensibly rejected on the premise that they were defective/sub-standard, is

clearly fatal in the context of Sections 41 & 42 of Sale of Goods Act.

18. If, inspite of satisfactory erection and water trials, the plant and

equipment had failed on raw can juice or had not achieved the desired

capacity, it is inconceivable that the paid employees of the defendant which

is a corporate entity, would not have sent a single communication to the

plaintiff and would sit quietly. The FIR, as has been lodged after the

institution of the suit, would have then been lodged immediately. Similarly,

if during this time, repeated efforts were being made to commission the

plant/equipment or for it to achieve the agreed targets, it is inconceivable

that there would be no correspondence in this regard. The technical persons

of the plaintiff would then have been visiting the Mill of the defendant and

there would have been communications fixing the dates of visits and

Minutes of such meetings would have been drawn. Experience of life shows

that during such visits to Sugar Mill Towns, the visiting teams stay in the

guesthouse of the Sugar Mills only and of which there would have been

documentary records. Not only have no such records been produced but no

dates of the so called efforts made by the plaintiff to commission been given

and no names of any visiting technical personnel of the plaintiff pleaded.

The only inference is that there were none.

19. I have weighed, whether it can be argued that all the aforesaid is

evidence and not to be pleaded but have concluded, no. As aforesaid, these

are commercial disputes between corporates represented by professionals

and experts and the standards of pleadings to be applied in such disputes

cannot be the same as applied to family disputes or transactions between lay

persons. A defendant, who admits delivery of goods, successful erection,

issuance of „C‟ Forms of the value of price of goods and does not reject the

goods but still denies liability pleading failure of commissioning inspite of

efforts has to make precise unequivocal pleadings of the efforts so made

with particulars of date, time, names, results and if fails to do so, incurs the

risk of deemed admission of liability. Unless the Courts construe the

pleadings so in commercial disputes, taking note of the modern prevalent

business practices, they will not only be doing disservice to the procedural

law of pleadings, filing of documents, admission denial but also failing in its

duty towards trade and commerce, flourishing whereof depends on

expeditious disposal of disputes. The Courts cannot be unmindful of the fact

that realizing the need for expeditious adjudication of commercial disputes, a

move is underway to establish a commercial division in the High Courts for

expeditious time bound disposal of commercial disputes. Though the

Commercial Division of High Courts Bill, 2009 being Bill No. 139 of 2009

has for time being been withdrawn, perhaps to amend, from the Parliament,

but I see no reason for the Courts not taking steps on their own in this regard

and in deciding commercial disputes by applying the prevalent commercial

practices and commercial sense and by treating commercial disputes as a

class unto themselves. The Courts cannot thus, even in the face of bald

pleas, put the suits to trail, which owing to the heavy load of work in the

Courts, takes several years and thereby blocking the dues of a rightful

claimant and which may be the death knell for a small business. Pleas,

unsupported by document, relating to a transaction otherwise through

documents, have to be specific and if found to be lacking in particulars,

which in the ordinary course would have been available, run the risk of

being considered as not raising any issue, within the meaning of Order XV

of the CPC.

20. The date of issuance of „C‟ Forms becomes significant in this

regard. The first „C‟ Form dated 17th March, 2007 is issued after two months

of the admitted delivery and satisfactory erection on 17th and 20th January,

2007 respectively of the plant and equipment and the second „C‟ Form dated

5th June, 2007, after another three months. The defendant in the said long

time of 2/5 months, if the plea in the written statement of the system having

failed inspite of efforts of the plaintiff is to be treated as a material one,

raising an issue, would have definitely known that the goods were defective;

the defendant had it not considered itself liable to pay the balance price of

the goods, would not have issued the „C‟ Forms with respect thereto.

21. The issuance of the „C‟ Forms is an acknowledgment of the

defendant having informed its taxation authorities of having purchased

goods of the value thereof, on payment of concessional rate of tax. The

defendant cannot be permitted to have conflicting stands before its taxation

authorities and vis-à-vis plaintiff.

22. The Supreme Court in Phool Chand Gupta Vs. State of A.P. (1997) 2

SCC 591 and Shree Digvijay Cement Co. Ltd. and Another Vs. State of

Rajasthan (2000) 1 SCC 688 has held that issuance of 'C' Form is a proof of

the sale of the goods having being effected and the goods having been

accepted without any demur. The Company Judge of this Court in M/s

Gulati Agencies (P) Ltd. Vs. M/s Hallex Applied Power Pvt. Ltd.

MANU/DE/5118/2012 and in M/s Shyam Dri Power Ltd.

Vs. Bhav Shakti Steel Mines Private Limited MANU/DE/4106/2012 and

Company Appeals No. 84/2012 titled M/s Hallex Applied Power Pvt. Ltd.

Vs. M/s Gulati Agencies (P) Ltd. and No. 81/2012 titled Bhav Shakti Steel

Mines Pvt. Ltd. Vs. Shyam Dri Power Ltd. whereagainst were dismissed on

12.10.2012 and 19.09.2012 respectively, has been relying on such 'C' Forms

coupled with other circumstances to arrive at a conclusion as to whether the

defence to a petition for winding up, is a sham or moonshine or not. Mention

may though be made of Elite Vessels Vs. Flex Engineering Ltd.

MANU/DE/1169/2004 where a Single Judge of this Court merely on the

basis of 'C' Forms and in the absence of anything else, held the dispute to be

a bona fide one. Similarly, a Single Judge of the Bombay High Court in In

Re: Reunion Electrical Mfrs. (P.) Ltd. MANU/MH/0627/2006 also held 'C'

Form to be not an acknowledgement of liability.

23. Thus, though 'C' Form may not be an acknowledgement of liability

but along with other facts, can certainly be relied on to take a view on

whether there is an implied admission or not.

24. Notice may also be taken of M/s Paharpur Cooling Towers Limited

Vs. Dalmia Consumer Care Private Limited MANU/DE/0910/2008 where

the defence that the goods are defective, without any written communication

of the defect having been sent to the seller was held to be a moonshine and a

sham defence set up only to defeat the winding-up petition.

25. The Supreme Court in Charanjit Lal Mehra Vs. Smt. Kamal

Saroj Mahajan (2005) 11 SCC 279 has held that an admission under

Order 12 Rule 6 can be inferred from the facts and circumstances of the

case and that Order 12 Rule 6 is enacted in order to expedite trial and

where the courts find that the suit can be disposed of on such

admissions, the court should not hesitate from doing so. Reference

may also be made to Shri Vimal Khanna Vs. Sh. Kishan Chand

Khanna MANU/DE/0812/2010 where a Division Bench of this Court

reiterated that the plaintiff, if otherwise found entitled to a decree on

admissions, cannot be deprived thereof by astute drafting of the written

statement or by taking pleas therein which have no legs to stand upon.

Another Division Bench of this Court in P.P.A. Impex Pvt. Ltd Vs.

Mangal Sain Mittal 166 (2010) DLT 84 extended the principle laid

down in T. Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467 in

relation to a plaint, to the written statement also and held that a defence

which is implausible and on a meaningful, not formal reading, is

manifestly vexatious and meritless, clever drafting should not be

allowed to create an illusion and such defences should not be

needlessly permitted to go to trial.

26. Merit is also found in the contention of the plaintiff that even the letter

dated 17th May, 2008 supra of the defendant is not of rejection of the goods.

Rather the same is in continuation of some earlier communication which has

not been produced about "shifting of membrance filtration system" from the

mill of the defendant owing to the defendant having ruled out the possibility

of use thereof along with the existing equipment and machinery in its

factory. The defendant even then did not make any complaint of the goods

being not as per the Purchase Order. Rather the willingness of the plaintiff to

take back the goods and which was obstructed by the defendant shows that

the goods even then had value.

27. It is unfortunate that even in the face of the documents which have

subsequently been admitted by the defendant, the defendant in its written

statement denied that any invoices were received by the defendant from the

plaintiff. The same shows that the defendant does not hesitate in verifying

false pleadings. The pleadings in the context of the account confirmation

letter dated 21st September, 2008 have to be viewed in this context. The

plaintiff in para 11 of the plaint stated as under:-

"11. That it is noteworthy that vide communication dated 21st September, 2008 the defendant unequivocally and unconditionally accepted that as per their books of account a balance of Rs.1,21,37,542/- was payable to the plaintiff as on 31.8.2008. They requested the plaintiff to write a communication to the said effect to their Chartered Accountant. The plaintiff duly wrote to the said Chartered Accountant that the outstanding dues of the defendant is Rs.1,28,16,407/-. Hence defendant has unconditionally and unequivocally

acknowledged its dues. It has however continued to illegally withhold the same in a illegal and unjustified manner."

The defendant in its written statement responded thereto as under:-

"Para 11 as stated is false and denied. It is denied that any communication dated 21st September, 2008 or any other date was sent to the plaintiff as alleged"

28. The letter dated 21st September, 2008 is on the same letterhead of

the defendant as other admitted documents. The issuance of such letter

seeking confirmation of accounts is widely prevalent in the commercial

world. The said letter in fact requires confirmation by the plaintiff to M/s

A.F. Ferguson & Co. Chartered Accountants of the defendant. Such letters,

since are sent to a large number of persons with whom the companies have

accounts, are generally initialed, as the subject letter also is. For the

defendant to have specifically denied the pleadings in para 11 of the plaint,

the defendant ought to have pleaded as to whether M/s A.F. Ferguson & Co.

were its Chartered Accountants in the relevant year or not and whether or

not the amount of Rs.1,21,37,542/- of which confirmation was sought shown

in the Books of Accounts of the defendant as on 31 st August, 2008 as due to

the plaintiff. Even at the time of hearing when it is asked from the counsel

for the defendant as to whether the said amount is still standing to the credit

of the plaintiff in the Books of Accounts of the defendant, the reply of the

counsel for the defendant is that merely because the same may be so shown

does not stop the defendant from contesting the claim of the plaintiff. I am

unable to agree. A purchaser of goods would not enter the price thereof in its

Books of Accounts as to the credit of the seller if has rejected the said goods

and would be at best shown as a contingent liability. As aforesaid, a person

is not entitled to have two faces, one for the taxation authorities and other for

its creditors. On a meaningful reading of the pleadings it has to be

necessarily held that the defendant is continuing to show the claim of the

plaintiff in its own Books of Accounts as due to the plaintiff and the

insistence on putting the plaintiff to trial on the said claim is clearly mala

fide.

29. The Supreme Court recently in M/s Gian Chand Brothers Vs.

Rattan Lal MANU/SC/0015/2013 reiterated that it shall not be sufficient for

a defendant to deny generally the grounds alleged by the plaintiff, but he

must be specific with each allegation of fact. It was further held that where

there is evasive denial, the defendant cannot be permitted to lead evidence,

when nothing is stated in the pleadings. With respect to books of accounts

also, it was reiterated that accounts regularly mentioned in the case of

business are to be taken as correct unless there are strong and sufficient

reasons to indicate that they are unreliable.

30. That brings me to the aspect of TIFAC. Even though the defendant

has filed only photocopies of Agreement with TIFAC and which have been

denied by the plaintiff but the same can always be used against the

defendant. The said documents also show that TIFAC had only agreed to

render financial assistance to the defendant for the purchase of the said

equipment by the defendant from the plaintiff. There is no letter of the

defendant to TIFAC also complaining of the equipment supplied by the

plaintiff and it is only in reply to the letter dated 22nd October, 2009 of

TICAC that the defendant for the first time on 27th October, 2009 i.e. after

the defendant was already resisting this suit that the defendant replied on the

same lines to TIFAC also.

31. The Code of Civil Procedure requires issues to be framed only on

„material‟ propositions of fact and law. The legislature has not required issue

to be framed merely on a denial being made. When the parties are found to

be dealing with each other in writing and there is no plea also of any verbal

communications between any officers of the two corporate entities, the pleas

of rejection of goods and/or of the goods supplied being not as per the

Purchase Order, cannot be said to be material so as to be required to be

proved by examination and cross examination of witnesses. Allowing so

would amount to putting a premium on dishonest pleadings and litigation to

be used as a tool of oppression.

32. It is significant that the FIR by the defendant of the goods supplied

by the plaintiff being defective also has been lodged only after the suit has

been filed; had the defendant felt itself cheated by the plaintiff, the same

would have been immediately after the supply and delivery of goods which

was nearly three years prior to the lodging of the FIR.

33. I am therefore satisfied that a case for decreeing the suit on

admissions, as far as the principal amount is concerned, is made out.

Reference may be made to the dicta of the Division Bench of this Court in

Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT 483, (an appeal

whereagainst being SLP(Civil) No. 20273/2007 was dismissed on 12th

November, 2007) where on a conspectus of the case law on the subject, it

was observed that admissions can even be constructive admissions, which

can be inferred from vague and evasive denial in the written statement while

answering specific pleas in the plaint and further, that admissions can even

be inferred from the facts and circumstances of the case.

34. That leaves the aspect of interest. The plaintiff has claimed interest

prior to the institution of the suit and pendente lite at 16% per annum,

claiming the same to be the market rate of interest. There is admittedly no

contract between the parties as to interest. The rate of interest claimed by the

plaintiff is found to be excessive and it is deemed appropriate to award

interest to the plaintiff, for the period prior to the institution of the suit at the

rate of 11% per annum and pendente lite and future at the rate of 9% per

annum, in consonance with the average rate of interest paid by Banks on

Fixed Deposits.

35. The suit is accordingly decreed for recovery of Rs.1,28,16,407/-

with interest from the date of the invoices up to the date of institution of the

suit at the rate of 11% per annum and pendente lite and future at the rate of

9% per annum. The plaintiff shall also be entitled to costs in accordance

with schedule.

36. As far as counter claim of the defendant for refund of the advance

price of Rs.1crore is concerned, the same, in view of the above, has to

necessarily fail and is dismissed. The same having been dismissed at an

initial stage, no costs.

Decree sheet be prepared.

\

RAJIV SAHAI ENDLAW, J

FEBRUARY 1, 2013 pp.

(corrected and released on 4th March, 2013)