Full Judgment
O-837 GA No.1604 of 2015 CS No.105 of 2015 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction DEAN SYSTEMS Versus R.M.SINHA & Co.BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : 18th July 2016.
Appearance: Mr.Debnath Ghose, Advocate Mr.Aritra Basu, Advocate ...for the plaintiff.
Mr.Debdut Mukherjee, Advocate Ms.Saswati Chatterjee, Advocate ...for the defendant.
This is a misconceived petition and in complete abuse of the process.
The plaintiff even has the gall to describe it as one for judgment on admission without any scrap of paper showing any admission.
An undeserving order is enjoyed by the plaintiff which is liable to be vacated.
The case in the petition is that a back-to-back contract was entered into between the parties upon the defendant being engaged by the State of Bihar for a particular project.
relies on parties.
an undertaking executed on March 21, The plaintiff 2011 by the Clause 3.0 of the document provides as follows: “All the terms and conditions of the original contract as specified by the ultimate Client are also accepted and to be followed by the sub-contractor.
This agreement is based on back to back basis including payments.” The plaintiff is the sub-contractor and the plaintiff claims that not only has the work been completed, but the ultimate employer has also accepted and endorsed the same and has issued a completion certificate in such regard.
The plaintiff claiMs.inter alia, refund of the security deposit and payment of the bills on account of management and operation of the Gandak Barrage at Valmikinagar.
Though the plaintiff has sought a judgment on admission, the plaintiff has not been able to cite any document where the defendant has admitted or acknowledged its liability to the extent of any part of the plaintiff’s claim.
The plaintiff seeks to exhort that merely because this is a back-to-back contract and the defendant may have received the payment from the ultimate employer, the plaintiff is entitled to refund of the security deposit and the payment in respect of the management and operation work at the barrage site.
A copy petition.
of the plaint is appended to the interlocutory The particulars of the claim appear from paragraph 41 of the plaint.
The plaintiff has demanded refund of a performance security, refund of the monies on account of security deposit deducted from its bills and the operation and maintenance charges for three separate periods.
The further claims are on account of alleged damage suffered due to the non-issuance of the completion certificate and damages on account of loss of business due to the illegal termination of the operation and maintenance work.
It has, thankfully, been submitted that no order of attachment or the like is sought against the claim for damages for non-issuance of the completion certificate or the other perceived loss on account of the alleged illegal termination of the operation and maintenance contract.
The statements in support of an order in the nature of attachment before judgment are found from paragraph 40 onwards of the petition.
They are the usual lines that reflect the frustration of the plaintiff for having to wait years together for a money suit to be decided but those that make out no grounds to meet the high test for passing attachment before judgment.
any wrongful conduct on an order in the nature of There is no credible allegation of the part of the defendant alienating any of its properties.
defendant or of the The spirit of the averments in the petition is that since the petitioner has made a money claim, an order of attachment before judgment should follow in the usual course.
That there had been a raging dispute between the parties is evident from the documents pertaining to the period immediately preceding the institution of the suit.
For instance, the defendant has relied on a letter of July 20, 2013 issued by the defendant to the plaintiff following the plaintiff’s insistence that the completion certificate should be issued.
It would be evident from such letter that there were differences between the parties which surfaced at a joint meeting held at the office of the defendant on June 13, 2013.
There were at least four letters written by the plaintiff to the defendant after the meeting of June 13, 2013 which were cumulatively defendant’s letter of July 20, 2013.
replied to by the The defendant complained of its officers having “clearly explained to Mr.D.Basu Roy the reason for non issuance of completion certificate to which he then did not object.” The letter referred to a subsequent change of tack on the part of the plaintiff in making numerous complaints after the meeting.
The plaintiff says that the letter was duly replied to on behalf of the plaintiff and it was pointed out why the completion denied.
certificate had to be issued and could not be However, what is of importance is that the parties were at loggerheads on such issue and the dispute had continued for a substantial period prior to the institution of the suit.
As far as the refunds of security deposit and performance security are concerned, the defendant has claimed that a substantial part of its security has been withheld by the ultimate employer.
The defendant has also relied on the observations made by the ultimate employer in response to a query raised under the Right to Information Act, 2005.
Paragraph 9 of the translated document following page 206 of the affidavit in opposition refers to the pursuant defendant to the in poor agreement light.
However, between the it is parties evident herein, that the defendant’s part of the operation and maintenance work at the relevant point of time was undertaken by the plaintiff herein.
It appears from the ultimate employer’s narration of events that the entire system failed on or about July 16, 2014 and that no steps were taken for the correction or the repair of the system despite demands.
Again, it appears from the documents relied upon by the defendant that there is a bona fide dispute between the parties as to the conduct of the operation plaintiff at the barrage site.
and maintenance work by the In such circumstances, at least at this stage, it cannot be said that the defendant has no right to withhold the payments against the bills on account of maintenance and operation charges raised by the plaintiff.
Usually, a money suit as the present one, without the claim for damages therein, should be no more than an afternoon’s business in a regular suit court; but because of the numbers with which judges grapple such suits can take some eight or ten or longer years to be disposed of.
In a sense, the plaintiff cannot be blamed for seeking to find shortcuts to obtain a decree prior to the trial or obtain coercive orders that would encourage the defendant to, willy-nilly, settle the claim.
However, an order in the nature of attachment before judgment may be passed only when the plaintiff has an unimpeachable claim and it appears that the defendant may be taking steps to defeat the realisation of the money when the unimpeachable plaintiff character succeeds.
of the In the present plaintiff’s claim case, the is not established and it is not necessary to go into the other aspect of the matter for which, despite the lip service in the petition, there is no substance in the allegations as to the defendant’s slippery conduct.
In view of the substantial defence to the plaintiff’s claim as evident from the affidavit in opposition, the plaintiff is not entitled to any order in the nature of attachment before judgment or the like.
The defendant has substantial answers on merits to the several heads of claim in pursuance whereof the prayer for attachment is made.
GA No.1604 of 2015 is dismissed.
The subsisting order stands vacated.
There will, however, be no order as to costs.
Since the defendant seeks four weeks to file its written statement, the time for the defendant to statement is enlarged by four weeks from date.
file its written Documents should be discovered within six weeks therefrom and inspection completed forthwith thereupon.
The parties should ensure that the suit is made ready in all aspects such that it may be placed before the appropriate Bench for trial immediately after the puja vacation.
Urgent certified website copies of this order, if applied for, shall be supplied to the parties, upon compliance of all requisite formalities.
(SANJIB BANERJEE, J.) S.
Kumar