- (1.) This appeal is directed against a deemed decree passed in an application for judgement upon admission. The judgement was delivered on 7th February, 2019. The plaintiff has filed a suit for recovery of money. During the pendency of the suit the plaintiff has filed an application for judgement on admission for a sum of Rs.16,51,85,702/- on account of outstanding payments due from the defendant to the plaintiff under a Memorandum of Understanding 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."
(2.) 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.
(3.) In the application for judgement upon admission, the plaintiff has relied upon several TDS certificates issued by the defendant as well as some of the e-mails exchanged by and between the parties to show that the appellant has admitted its liability. The defendant, however, appears to have raised dispute with regard to the percentage of commission payable by the defendant to the plaintiff for the services rendered. The defendant relied upon the rates agreed by the parties in the MoU while the plaintiff relied upon the rate of 5% which according to the plaintiff was followed continuously in respect of the transaction subsequent to the MoU.;