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TMI Blog2017 (7) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... The Defendants : Mr. Rushil Chandra, Advocate for D-5 IA 25813 / 2015 ( under Order XII R . 6 CPC - by plaintiff ) MS . JUSTICE MUKTA GUPTA 1. Before dealing with this application, it would be appropriate to note the order dated 24th April, 2014 passed by this Court in the present suit as under: 1 . The suit is listed for framing of issues . 2 . The counsel for the plaintiff as well as the counsel for the defendants no . 1 to 3 who are the only contesting defendants have handed over proposed issues which are taken on record . 3 . However not finding any clarity therein, the pleadings have been perused . 4 . On perusal of the pleadings, it appears that there is no dispute requiring recording of the evidence . 5 . During the hearing, it has been informed that the plaintiff, defendant no . 2 and the defendant No . 3 formed the defendant No . 1 Consortium for carrying out some works for the defendant no . 5 Organizing Committee for the Delhi Commonwealth Games, 2010 . The said works have admittedly been carried out . However arbitration between the defendant no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties . 14 . Rather than framing issues, it is deemed expedient to hear the parties on the said aspect and issues shall be framed thereafter only if the need therefor arises . 2. Plaintiff filed CS (COMM) No. 1590/2016 for recovery, declaration, dissolution and rendition of accounts and mandatory injunction against the defendants and claims that defendant Nos. 1 to 3 are jointly and severely liable to rendition of accounts, mandatory injunction and recovery. 3. Plaintiff is a company incorporated under the Companies Act, 1956 having its registered office at 9, 1st Floor, Printing Press Area, Wazirpur, Delhi. Defendant No. 1 PICO Deepali Overlays Consortium (in short PDOC ) is a compendium of the plaintiff, PICO Hong Kong Limited (in short PHK ), defendant No. 2 and PICO Event Marketing (India) Private Limited (in short PEMI ) defendant No. 4. Defendant No. 2 is a company incorporated under the laws of Hong Kong having its registered office at Hong Kong whereas the defendant No.3 is a company incorporated under provisions of the Indian Companies Act, 1956 and is a subsidiary of PICO India Exhibits Contractor Pvt. Ltd. (in short PIEC ) which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE PARTIES HEREBY AGREE TO THE FOLLOWING : 1 . NO INCORPORATION OF SEPARATE LEGAL ENTITY The JV members will not incorporate a separate legal entity as envisaged under the Earlier Agreement and the JV shall undertake the project and enter into the Contracts with Delhi 2010, as an unincorporated joint venture consortium . In the recitals, the references in the Earlier Agreement to Company shall be replaced by references to consortium and the word incorporated shall be replaced by unincorporated . Recitals D is deleted . 2 . SCOPE OF WORK 2 . 1 Scope of works ( 1 ) After the assignment of the works to each member, if there are any profits and assets earned and retained in the JV, Deepali shall not be entitled to any share of such profits and assets . ( 2 ) Each party shall participate in the works tendered to the CWGOC Delhi 2010 . The scope of works are assigned to members as follows : Deepali : Works confirmed by CWGOC Delhi 2010, listed in Appendix 2 PHK PEMI : All other works confirmed by CWGOC Delhi 2010, listed in Appendix 3 Any changes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are / were responsible to carry out / have carried out the works as per the assigned works shall be solely, exclusively and to the exclusion of other Members of the Consortium be liable to the other Members or such party / agency etc . and each Member hereby indemnifies and holds good against all such losses, actions, damages etc . the other Member ( s ) for any such claim / liability etc . 2 . 2 . 2 . 3 . 2 . 4 . 3 . AMENDMENTS TO THE EARLIER AGREEMENT 3 . 1 Article 4 . 1 : delete at the common expense of the JV members Article 5 : delete within the timeframe of five ( 5 ) calendar years after the date of signature of this Agreement 3 . 2 Article 7 : delete in its entirety and replace with The risks and liabilities of each party shall be as per the scope of work to be undertaken and the participation of each party as contained in the Addendum . In the event the risks and liabilities that materialize are general in nature and cannot be determined to be attached to any individual scope of work by any party, such as a general deduction by CWGOC Delhi 2010 from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377;30,35,40,044/- from defendant No. 5 to defendant No. 1 has not been disputed. 11. Further, in Para 19 of the written statement defendant Nos. 1 to 3 admitted that all the payments noted above have been received from 14th June, 2010 to 18th October, 2010. 12. An affidavit of Shri Chung Chee Keong on behalf of defendant Nos. 1, 2 and 3 has been filed for admission/denial wherein the addendum dated 1st June, 2010 to the Consortium Agreement has been admitted. 13. Further, as per the affidavit, document at Serial No. 50 which is the email dated 10th March, 2011 relied upon by the plaintiff is denied for the reason that it is a correspondence exchanged by the parties during settlement and is a confidential document thus barred by Section 23 of the Indian Evidence Act, 1826. 14. Thus sending of the email dated 10th March, 2011, has not been denied and only a plea has been taken that it is inadmissible in evidence in view of the bar under Section 23 of the Indian Evidence Act, 1826. 15. In the above noted application, in Paras 13 and 14 the plaintiff/applicant has relied upon the email dated 10th March, 2011 which contradicted the stand of defendant No. 2 before this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o come to the conclusion that the admissions are unequivocal, unqualified and unambiguous . In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies . Even a contrary stand taken while arguing the matter would be required to be ignored . 18. In the light of the law laid down though this Court does not find an unequivocal and clear admission of defendant Nos. 1 to 3 for a liability of the plaintiff to the tune of ₹6,99,24,861/- however considering the fact that the email dated 10th March, 2011 along with attachment is an admitted document wherein a clear admission has been made out on behalf of defendant Nos. 1, 2 and 3 to pay sum of ₹4,19,05,956/- to the plaintiff, this Court deems it fit to pass a preliminary decree in favour of the plaintiff and against the defendant Nos. 1 to 3 jointly and severely. It is ordered accordingly. Defendant Nos. 1, 2 and 3 shall jointly and severally pay a sum of ₹4,19,05,956/- to the plaintiff with an interest @9% per annum from after 10 days of receipt of the amount which in any case was on or before 18th October ..... X X X X Extracts X X X X X X X X Extracts X X X X
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