Moushumi Bhattacharya, J. - (1.) This is an application for judgment on admissions made by the plaintiff in a suit claiming a decree for Rs. 16,51,85,702/- on account of outstanding payments due from the defendant to the plaintiff under a Memorandum of Understanding (MoU) entered into between the parties for removal of Hard Shale and Carbonaceous Shale at Tirap Colliery. The arrangement between the parties envisaged in the MoU is that the defendant would procure the contract for the work from North-Eastern Coalfields (NEC) and hand over the said work on sub-contract to the plaintiff for executing the work in accordance with the terms of the MoU dated 26th March, 2013. The work order contemplated a period of thirty six months and back-to-back arrangements for the defendant paying the plaintiff upon obtaining the payment from North-eastern Coalfields after keeping a margin of 12.50% of the actual rate of the letter of intent issued by NEC. In other words, the money received by the defendant from NEC would be paid by the defendant to the plaintiff after deducting the rate of margin mentioned in the MoU. The relevant clauses of the MoU are set out below. "(f) That the party of the First part will keep 12.50% on account of its margin of actual rate as per LOI issued by North Eastern Coalfields Limited (NECL) and will pay the Balance amount to the party of the Second part. (g) That the party of the first part will make to the party of the Second part, immediately after receiving the payment from North Eastern Coalfields Limited, after deduction of TDS as per Income Tax Act, 1961 and the Mutually agreed amount as per point no. (f) i.e. 12.50% of value of work done." The petitioner/plaintiff is admittedly not privy to the contract between the defendant and NEC. The defendant has made substantial payments to the plaintiff till date amounting to approximately Rs. 79 crores. The decree claimed in the plaint relates to the balance amount allegedly due and owing to the plaintiff.
(2.) The dispute in the instant application under Order XII Rule 6 of The Code of Civil Procedure, 1908, is the rate agreed to be kept by the defendant before making the payments to the plaintiff of the amount received by the defendant from NEC. The defendant relies on the rate agreed by the parties in the MoU while the petitioner relies on the rate of 5% which the petitioner claims has been continuously followed in the transactions subsequent the MoU. The petitioner has prayed for final judgment and decree for a sum of Rs.13,64,26,682/- to be passed against the defendant on the basis of a rate of 5% margin to be kept by the defendant/respondent on the balance amount which remains due and owing to the petitioner.
(3.) Mr. Ratnanko Banerji, learned senior counsel and Mr. Reetobroto Mitra, learned counsel appearing for the plaintiff/petitioner relies on the following documents to show that despite the rate mentioned in the MoU, the parties proceeded on the basis of 5% being the agreed rate to be kept by the defendant as margin before making the payment to the plaintiff. These documents are; i) An E-mail dated 19th February, 2016 from the plaintiff to the defendant which states, inter alia, that the defendant has deducted an amount of Rs.1,02,07,373.43/- towards 5% commission for the R.A Bills after 11th September, 2015. ii) The reply of the defendant on the same day i.e. 19th February, 2016 which requests the plaintiff to indicate whether an amount more than 5 crores is due to the defendant and further states that the defendant's share of commission is 6% (and not 5%). iii) Working Notes prepared by the defendant giving the details of R.A Bills where 95% of the Bill amount has been shown to have been paid by the defendant to the plaintiff from the money received by the defendant from NEC. (This document is annexed of the affidavit-in-opposition of the defendant). iv) Forms 26AS and/or the TDS Certificates of the petitioner for the relevant financial years which shows that the defendant had deposited TDS for the amounts reflected in the certificates. (The statement of such amount would show that a rate of 5% had been kept by the defendant as commission).;