9911796707
TMI Blog2002 (2) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... o the quality or quantity. The Defendants made part payment to the Plaintiffs of a sum of Rs. 60,00,000 between October, 1996 and March, 1997. The remaining amount of Rs. 15,88,413.63 was however not paid by the Defendants to the Plaintiffs. This transaction was of 14-6-1996. Thereafter, there was exchange of correspondence between the parties. One such letter was a letter written by the Plaintiffs dated 12-5-1998, wherein, details of the bills raised and payment received till then was mentioned, and the Plaintiffs called upon the Defendants to certify the balance payment due to the Plaintiffs as per the enclosed statement. The Plaintiffs case is that the authorised signatory of the Defendants thereafter certified at the foot of the said letter, as follows : " To Whomsoever it may concern We hereby certify that the balance amount payable to M/s. Techno Fire Protection Services Private Limited as on 31st March, 1998 as our books of account is Rs. 15,88,413.63 (Rupees Fifteen Lakhs Eighty Eight Thousand Four Hundred Thirteen and Paise Sixty Three Only). For MTZ Polyester Ltd. Sd/ Authorised Signatory". The rubber stamp of the Defendants was affixed to the said letter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on the order passed by Mr. S.S. Nijjar, J. on 9-2-2000 and it is emphatically argued, relying upon the endorsement of the Defendants on the Plaintiffs letter dated 12-5-1998 that it was an admission of liability by Defendants towards the Plaintiffs. In the body of the letter, it was stated that since the Plaintiffs statutory auditors required a confirmation of balance from defendants for the purposes of accounts, the same be given. It was on this letter of the Plaintiffs that Defendants certified that the balance amount payable to the Plaintiffs as on 31-3-1998 as per their books of account was Rs. 15,88,413.63. 8. When the Notice of Motion was argued for ad interim relief, after hearing both the sides, Mr. D.K. Deshmukh, J. on 13-6-2001, passed order in terms of prayer clause ( a ) and allowed the Plaintiffs to withdraw the amount of Rs. 15,88,413.63 which was deposited by the Defendants in the Office of the Prothonotary and Senior Master, High Court, Bombay, pursuant to the order dated 9-2-2000 passed in Company Petition No. 1179 of 1999. 9. It was observed by Mr. D.K. Deshmukh, J. as follows : "Now the amount has been deposited by the Defendant. The Defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any security to the satisfaction of the Court, if they are allowed to withdraw the said amount, till the suit is finally heard and decided. 12. Thus, these two Notices of Motion are for the same reliefs namely for withdrawal of the amount of Rs. 15,88,413.63. The Notice of Motion taken out by the Plaintiffs is in pursuance to the liberty granted by Mr. S.S. Nijjar, J. and Mr. Tulzapurkar, who is appearing for the Plaintiffs forcefully argued that the Notice of Motion taken out by the Defendants be dismissed outright because no liberty was granted to Defendants by Mr. S.S. Nijjar, J. to take out the Notice of Motion for withdrawal of that amount while the Plaintiffs Notice of Motion was in pursuance to the liberty granted to them. He also argued that this amount is an admitted amount and, therefore, he is entitled and is justified in praying for withdrawal of the said amount. According to him, even after the withdrawal of the said amount, which is an admitted liability of the Defendants payable to the Plaintiffs, the interest portion to which the Plaintiffs are entitled, still remains to be paid and the suit can be fought subsequently for that portion only. Simply put, the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch show the Plaintiffs in a poor light, as there are repeated complaints from the Defendants about not carrying out the work properly. There is also a note dated 21-3-1997 (Exhibit 19 on page No. 77 of the Written Statement) which says that the Plaintiffs "Techno Fire just do not have the capability of doing such a massive job with the result that the work was suffering and no progress was there". The details are given below, where various types of complaints are meticulously recorded. 14. Even about the payment, the contention of the Defendants very specifically is that, the Defendants have overpaid the amount to the Plaintiffs and that, in fact are claiming a set-off from the Plaintiffs. It is pertinent to note that the date of the Written Statement is 12-4-2001, which is filed in Court on 21-4-2001, when the Plaintiff had not taken out their Notice of Motion No. 1056 of 2001, as the same was taken out on 27-4-2001. Thus, the contention of the Plaintiffs that the Defendants accepted their services and the delivery of the fire hydrant system without demur, is incorrect. The Plaintiffs have not annexed any correspondence throwing light upon dissatisfaction of the Defendants, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, there was no dispute, the appeal was filed in the Supreme Court, wherein, the Supreme Court observed that the permission to withdraw the amount could not be made conditional by asking the appellant company to furnish security before withdrawal. In the above mentioned case cited by Mr. Tulzapurkar, it has to be noted that there was no dispute whatsoever between the parties with respect to the amount with respect to which, permission of withdrawal was given. Thus, there was no dispute whatsoever with respect to this amount, and therefore, the Supreme Court held that there could not be any condition of furnishing security before the order of withdrawal came to be passed. 16. In the present case at hand, however, the facts are different. The Defendants are disputing the amount of Rs. 15,88,413.63, which according to them the Plaintiffs contention that it is an admitted liability of the Defendants is not correct. The correspondence between the parties makes it very evident that this amount is disputed. In fact, the Defendants contention is that they are not liable to pay this amount, and that, they have made over payment to the Plaintiffs, and for this, they have a claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. This order was carried in appeal before the Division Bench, and the Appeal Court reduced the amount to Rs. 15,00,000. The Appellants then carried the matter before the Supreme Court, but the appeal was dismissed. The Supreme Court only extended the time to deposit the amount, and the appellants deposited the amount accordingly as per the directions of the Supreme Court, within the stipulated period. When the matter appeared before the Chamber Judge, to ascertain whether the amount was deposited within the stipulated period, the respondents (Original Plaintiffs) made oral request for directing the Prothonotary and Senior Master to hand over the amount of Rs. 15,00,000 to the Respondents, and the learned Chamber Judge acceded to that request. The learned Chamber Judge observed that the respondents could withdraw the amount on furnishing bank-guarantee and on undertaking that the amount would be brought back if so directed. This order passed by the Chamber Judge was carried in appeal, and the Division Bench set-aside the order passed by the Chamber Judge, observing that the learned Chamber Judge had no jurisdiction to direct the payment of the amount to the Respondent in absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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