- (1.) This is an appeal against the judgment and order dated 1st March 2010 passed by the first court on an application taken out by the defendant/appellant for variation and modification of the principal order dated February 9, 2010 which was subsequently modified by an another order dated February 16, 2010.
(2.) Admittedly the suit in question is a suit simplicitor for claim of money. The case made out by the plaintiff/respondent is that the defendant/appellant through its authorised person approached the respondents for entering into financial agreement to provide finance either by direct investment or by financial sale agreements. By an agreement between the appellant and the respondent the respondents have financed the appellant 's business either by direct investment or by entering into a high seas sales contract for supply of hard coking coal in bulk. It is further sated that by such arrangement it was agreed that the respondents shall be allotted 35% of the equity shares of the appellant company and the representative of the respondent No. 1 herein shall be one of the directors of the Board of Director of the appellant company. Pursuant to such arrangement the respondent No. 1 entered with the appellant six High Seas Sales Contract and raised six invoices for the price of hard coking coal. In addition thereto the respondent No. 1 also raised three debit notes for the bank charges incurred for opening of foreign Letter of Credit in relation to two invoices. The aforesaid investment was further agreed to fetch an interest @ 18% per annum which was subsequently modified orally to 17.5 % per annum. The respondent No. 1, by way of such arrangement, advanced various sums on different accounts and the appellant also made payment from time to time leaving a balance of the principal sum of Rs. 1,38,80,683.04p.
(3.) Similarly the respondent No. 2 also entered two High Seas Sales Contract with the appellant and also raised one debit note for differential amount of foreign exchange fluctuation and other cost and have also received payment from the appellant from time to time and as on January 31, 2010 a sum of Rs. 2,42,56,056.63p. was due and payable. The claim has been duly crystallized in paragraph 22 and 23 of an application being GA No. 359 of 2010.;