A.K.Nandi, J. - (1.) - Two companies have fallen out. One has sued another for recovery of a sum of five lakhs and odd, and for injunction, both permanent and temporary, restraining the other from realising his dues from Engineers India Limited.
(2.) Engineers India Ltd. accepted the tender of Pragati Engineering Private Ltd. for a project at Manuguru in Andhra Pradesh. By means of correspondence between the two contending parties, the plaintiff-appellant M.L. Dalmiya & Co. Ltd. and the respondent No. 1 Pragati Engineering Pvt. Ltd, the former accepted the sub-contract under the latter to execute the work. In no time dispute arose over payment. The appellant M.L. Dalmiya & Co. Ltd., alleged that the respondent No. 1 Pragati Engineering Pvt. Ltd. did not adhere to the payment schedule agreed upon by the parties. In a meeting held on 19.9.86 the parties principally came to two terms. The respondent No. 1 would issue cheques for a sum of Rs. 240000/- to the appellant. He would also execute an irrevocable power of attorney which would authorise the appellant to submit bills and receive payments from respondent No. 2 Engineers India Limited. An obligation to intimate the particulars of such bills and payment to the respondent No. 1 was cast upon the appellant. The respondent No. 1 issued cheques for Rs. 240000/- and Rs. 50,000/- which were all dishonoured and bounced. The appellant, however, received payment of Rs. 205845.22 from respondent No. 2 virtue of the irrevocable power of attorney. Nevertheless the appellant stopped execution of the work on the plea that the cheques were all bounced. By a next meeting on 17.12.86 the parties sought to resolve their dispute. In pursuance of an agreement arrived at in this meeting the appellant received a further payment of Rs. 125000/- from respondent No. 2. It is claimed that the appellant thereafter completed the work and submitted his final bill for Rs. 654916.84 on or about 22.7.87. The appellant received a further payment of Rs. 194679/- from respondent No. 2 on 25.8.87 and 15.9.87. The balance of Rs. 460237.84 remained outstanding. In order to avoid payment the respondent No. 1 revoked the irrevocable power of attorney on or about 8.2.88 and is trying to collect its dues from respondent No. Z. So the appellant seeks to resist the realisation of the dues by the respondent No. 1 from respondent No. 2 by means of an order of injunction.
(3.) The respondent No. 1 in his affidavit-in-opposition admits to have entered into the alleged sub-contract by means of correspondence. The terms were all laid down in letters dated 14.5.85, 19.12.85 and 15.1.86, It is admitted that pursuant to the terms laid down in the meeting on 19.9.86 issued cheques for Rs. 240000/- and executed a power of attorney as alleged. But a payment of Rs. 125000/- was received by the appellant from respondent No. 2. It is contended that the whole amount of Rs. 240000/- has been paid by further payment and adjustment. Finally it was discovered that by virtue of power of attorney the appellant received an over payment of Rs. 79930.80 which they promised to repay in writing. The appellant did not forward copies of bus submitted to respondent No. 2 nor the statement of payments received from respondent No. 2 as agreed upon. It did not complete. the work nor obtained completion certificate from respondent No. 2. Further, the appellant did not submit measurement of works nor carried out the material reconciliation. It did not furnish the performance Bank Guarantee either. In such circumstances, the respondent No. 1 alleges, that it had to revoke the irrevocable power of attorney. It is urged that the appellant having suppressed material facts cannot get injunction.;