Delhi High Court
Hindustan Clean Energy Ltd ... vs Pyramid Spaces Pvt Ltd on 5 December, 2018
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th December, 2018
+ CS (COMM) 1115/2016 & I.A. 5971/2014
HINDUSTAN CLEAN ENERGY LTD ERSTWHILE MOSER
BAER CLEAN ENERGY LTD. ..... Plaintiff
Through: Mr. Tarun Singla, Advocate (M-
9810202014) along with Mr.
Sidhartha Kala, AR
versus
PYRAMID SPACES PVT LTD ..... Defendant
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present suit for recovery was filed under Order XXXVII CPC
seeking a recovery a total principal sum of Rs.21,06,90,112/-. The suit was
registered and summons for appearance were issued in the prescribed form.
After the Defendant entered appearance, leave to defend application was
filed by the Defendant. The matter was heard on the last date i.e., 10th
October, 2018. After conclusion of arguments, Ld. Senior Counsel for the
Defendant sough an adjournment on the ground that he shall seek
instructions. Today, the matter was listed for counsel for the Defendant to
report with their instructions. None has appeared for the Defendant since
morning. The matter was passed over on three occasions. The counsel for
the Plaintiff has sent a message to the Defendant's counsel and attempted to
contact them but to no avail. Despite three passovers, none appears for the
Defendant. Accordingly, the Court proceeds further to decide the matter.
2. The factual background of the suit is that the Plaintiff entered into a
transaction for purchase of land, with the Defendant vide MOU dated 2nd
May, 2011 with the Defendant. The Plaintiff was to purchase the land
located in villages Kamalpur & Rajpar, Taluka Dasada, District Surendra
Nagar, Gujarat at the consideration amount of Rs.7,65,001/- per acre. The
said amount included the cost of land at Rs.6,00,000/- per acre along with
the mutation and Non-Agricultural Conversion User Charges.
3. Another MOU was also entered into on 28th June, 2011 with the
Defendant company for acquisition of 300 acres of land in Villages
Zainabad & Ahmedgarh, Taluka Dasada, District Surendra Nagar, Gujarat
for sale consideration of Rs.8,10,001/- per acre which included the land cost
of Rs.6,45,000/- along with mutation and Non-Agricultural Conversion User
Charges.
4. The Defendant was paid an advance sale consideration amount of
Rs.32,42,48,279/- through Real Time Gross Settlement (R.T.G.S.) during
the period of 9th May, 2011 to 6th December, 2011, initially. Thereafter by
5th March, 2012, a total sum of Rs.41,44,74,303/- was paid to the Defendant.
The details of the payments made are contained in paras 10 and 11 of the
plaint. However, despite the payment of Rs. 41,44,74,303/-, the total land
that was transferred to the Plaintiff is stated to be to the tune of sale
consideration amount of Rs.33,47,55,950/-. Out of the said amount,
Rs.5,45,61,601/- was paid directly to the farmers. Thus, a total amount of
Rs.13,42,79,954/- remained with the Defendant in the form of extra payment
for which no land was transferred. In addition, the Plaintiff also claims the
Bin Kheti Premium which was to be paid to the Government to the tune of
Rs.4,57,72,255/-. On the said amounts, interest is also prayed for.
5. On the last date when submissions were made on the leave to defend
application, it was argued that the actual payment was not made by the
Plaintiff but was made by third parties and hence the suit by the Plaintiff is
not maintainable. It was further submitted that time was not the essence of
the contract between the parties. Since, there is no specific admission or
acknowledgment of the debt, the Order XXXVII suit was not maintainable.
6. The counsel for the Plaintiff submits that out of the total amount an
amount of Rs.12,10,72,191/- was in fact paid by the Plaintiff itself and the
remaining payments were made on the instructions of the Plaintiff by its
Prospective & Strategic Buyer companies, namely, Ujjawala Power Private
Limited, Responsive SUTIP Limited and Chattel Construction Private
Limited. It is thus submitted that the Plaintiff is entitled to sue as the
amounts were paid under the MOUs between the Plaintiff and the
Defendant.
7. A perusal of the plaint and the leave to defend application as also
submissions made on the last date clearly shows that the receipt of the
amounts is actually not disputed. What is disputed is merely the locus of the
Plaintiff and the submission that time was not the essence of the contract.
These MOUs go back to the date of 2nd May, 2011 and 28th June, 2011.
Seven years is a long period for performance of any contract. The Defendant
does not dispute the receipt of the money or the transactions entered into.
8. The execution of the two MoUs is admitted. In paragraph (s) and (y)
of the affidavit accompanying the Leave to Defend application, the
Defendant merely states that the advance amount `was substantially
adjusted' or `entire amount was adjusted'. No specific figures are
mentioned. The entire allegation in the leave to defendant is that the Plaintiff
defaulted in performing obligations under the MoU, but there is no denial of
receipt of the amounts mentioned in the Plaint. The further stand of the
Defendant is that it had issued corporate guarantees and some cheques of
which it sought return due to the losses caused to it by the Plaintiff. In this
regard, suits are claimed to have been filed by the Defendant in the courts in
Gujarat. It is further claimed that the accounts are not yet settled and it has
to recover sums from the Plaintiff. The leave to defend application is also
not pressed today inasmuch as none has appeared for the Defendant.
9. A perusal of the pleadings shows that the Plaintiff states in reply to
the leave to defend application that the Defendant has admitted the receipt of
the amount of Rs. 41,43,42,972/- in its Balance Sheet. Corporate guarantees
were issued by the Defendant for Rs. 2 crores each as also three cheques for
Rs.5 crores were also issued. This Court is satisfied to the extent that
payments were made under the MOUs to the Defendant, and the unutilized
amount cannot be retained by the Defendant. This is however without
prejudice to the claim of the Defendant that it is entitled to liquidated
damages from the Plaintiff in the proceedings filed in Gujarat. Since
separate proceedings are claimed to be pending in the said court, this Court
has not gone into the merits of the said claims of the Defendant against the
Plaintiff.
10. The Plaintiff is thus entitled to a sum of Rs.13.42 crores. However, in
respect of the Bin Kheti Premium amount which is prayed for by the
Plaintiff, apart from the notification of the Government which prescribed the
rates for Bin Kheti Premium, no evidence has been placed on record
showing that the premium was in fact paid by the Plaintiff or anyone on its
behalf. Thus, this amount is not liable to be granted in favour of the Plaintiff.
If the Plaintiff is able to obtain any evidence to show that it in fact deposited
the said amounts with the Governmental Authorities, the remedies of the
Plaintiff are left open, provided the same is maintainable in law.
11. The leave to defend application is dismissed as having not been
pressed. A decree for the sum of Rs.13,42,79,954/- is granted along with
interest @ 8% p.a. from the date of filing of the suit till date of decree.
Defendant would be entitled to adjustment of any amounts which have been
paid by the Defendant either in the form of encashment of corporate
guarantees or securities. If the payments are not made within 8 weeks, then
interest @ 12% p.a. would be payable on the decretal amount.
12. Suit is decreed in the above terms. Decree sheet be drawn
accordingly. Costs to the extent of the Court fee and legal expenses are
granted to the Plaintiff.
13. The suit and all pending I.As. stand disposed of.
PRATHIBA M. SINGH
JUDGE
DECEMBER 05, 2018
Rahul
