ABB INDIA LTD vs POWER FINANCE CORPORATION LIMITED & ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 05.02.2024
Judgment pronounced on: 26.04.2024
+ CS (COMM) 648/2021, I.A. 16573/2021, I.A. 3015/2022
ABB INDIA LTD ……….. Plaintiff
Through: Mr. Arvind K. Nigam, Sr. Adv. with Mr.Manoj, Ms. Aparna Sinha, Mr. Harshit Gupta, Ms. Varsha Agarwal,Advs.

Versus

POWER FINANCE CORPORATION LIMITED & ANR.
…..Defendants
Through: Mr. Balbir Singh, Sr. Adv. with Mr. Yashish Chandra, Mr. Varun Kumar Tikmani, Mr. Shivam Sharma, Advs. for defendant Nos. 1 and 2.

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

I.A. No. 3015 of 2022
1. This is an application seeking rejection of plaint filed on behalf of defendant No. 1 and 2 (collectively as “defendants”) under Order VII Rule 11 of CPC.
BREIF BACKGROUND
2. The present suit has been filed by the plaintiff against the defendants for breach of contract and damages. The substantial prayers in the present suit read as under:-
“A. Pass an order declaring that the Defendants are obliged to make payment of the admitted amount of outstanding as per the June 2017 MoM;
B. Pass an order directing Defendants to pay an amount of INR 193,14,90,933/- (Rupees One Hundred Ninety Three Crores Fourteen Lakhs Ninety Thousand Nine Hundred Thirty Three only) suffered by the Plaintiff by the Defendants’ breach of the terms and conditions the Minutes of Meetings dated June 29, 2017 and for misappropriation of sums owed to the Plaintiff thereunder;
C. Pass an order directing the Defendants to pay interest pendente lite at 12% per annum to the Plaintiff till the date of receipt of payment;”
3. It is stated in the plaint as under:-
4. For the purposes of initiation and execution of the power project being Substation Portion of 765 KV S/C Mainpuri, Bara Line with 765 KV/400 KV AIS at Mainpuri and associated scheme/work in the state of Uttar Pradesh (“Project”), Uttar Pradesh Power Transmission Corporation Ltd. (a government of Uttar Pradesh undertaking) (“UPPTCL”) created a wholly owned subsidiary in 2009 i.e. a special purpose vehicle called South-East U.P. Power Transmission Co. Ltd (“SEUPPTCL”).
5. Sometime in between 2009 and 2011, bids were invited for carrying out work on the project, wherein Isolux Corsan India Engineering & Construction Pvt Ltd (“Isolux”) emerged as successful bidder and was awarded the tender for the Project.
6. In November 2011, the plaintiff company was engaged by an unincorporated joint venture between Isolux and C&C Constructions Limited namely, ICI-C&C Mainpuri JV (“JV”) for design, supply, transportation, erection, testing and commissioning, including civil works for the project. Subsequently, the parties (i.e. JV and Plaintiff) entered into three separate Contracts dated 18.11.2011 for a total Contract price of INR 912,00,00,000/-, viz.:
A). Civil Works Contract with consideration amounting to
INR 94,50,00,000/-,
B). Services Contract with consideration amounting to INR
17,50,00,000/-; and
C). Supply Contract with consideration amounting to INR
8,00,00,00,000/- (collectively referred as Contracts).
7. The aforementioned contracts provided the plaintiff with planned payments on achievement of milestones. In addition, the Contracts gave the plaintiff the right to suspend work in the event of a payment delay until the plaintiff had received the overdue amount.
8. In December 2014, the Contracts were novated by way of Novation Agreements dated December 11, 2014 (“Novation Agreements”) whereby the Contracts were assigned in favour of Isolux and the total Contract price was enhanced to INR 1068,09,54,211/-.
9. As the amounts due to the plaintiff in terms of the achieved milestones were not forthcoming, despite the plaintiff continuing to perform its obligations, the plaintiff suspended the work under the project by issuing a notice of suspension on March 11, 2016. The Parties hereto, along with Isolux and SEUPPTL, met on numerous occasions thereafter, between March 2016 and June 2017, to resolve the impasse resulting from the non-payment of dues to the plaintiff, during which meetings, allegations by Isolux that the plaintiffs work was defective were also resolved.
10. At the instance of defendant No. 1, meetings were held on 21.04.2017, 19.05.2017, 22.05.2017 and 26.05.2017 between the parties herein alongwith Isolux and SEUPPTCL, after much deliberation, an agreement/understanding was reached between the parties which resulted in the execution and signing of a binding document, i.e., Minutes of Meeting dated June 29,2017 (“June 2017 MoM”), signed jointly by Defendant No. 1 (for itself and on behalf of Defendant No. 2), SEUPPTCL, the plaintiff and Isolux, containing the terms and conditions for the creation and maintenance of the payment mechanism as contemplated and agreed upon by the parties thereto.
11. In June 2017 MoM, the parties agreed that the plaintiff would carry out the energization of Commercial Operation Date -1 (“COD-1”) on the condition that it would be paid its outstanding dues in a continued and progressive manner from the monthly revenues from the project, which were deposited into the Trust and Retention Account (“TRA”) and managed by the defendants, till the plaintiffs dues were cleared. The parties agreed that a certain fixed sum shall be made available to the plaintiff (without demur and interruption) every month till the full satisfaction of its dues. Pertinently, this payment mechanism was intended to be automated, to be continued without interruption and something that could not be altered or stalled under any circumstance by any party.
12. It was further agreed that a certain portion of the Monthly Transmission Charges (“MTCs / revenues”) generated by the project would be earmarked and assigned to the plaintiff so as to ensure that the same could be paid to the plaintiff in a regular manner and without interruption, and towards that end, all parties agreed to assign (by way of transfer of title), a fixed and ascertainable portion of the sums received as revenues from the project, to the plaintiff. The assigned portions would be paid to the plaintiff at regular intervals in a staggered manner over a pre-determined period of time. This payment was to be made from the TRA, which was controlled by defendant No. 1.
13. It is further stated in the plaint that the de-jure and de-facto control over the TRA (including control over all disbursements/remittances to be made from it) was, to the best of plaintiffs’ information and knowledge, exercised by defendant No. 1 on behalf of the Lenders.
14. Relying upon the various clauses of the June 2017 MoM, the plaintiff states in the plaint that the defendants undertook to facilitate the monthly payments to the plaintiff in terms of June 2017 MoM, as they exercised the control over the TRA, which facilitation was to be done continuously, absolutely and unconditionally.
15. Pursuant to the understanding reached in June 2017 MoM, the following events transpired:-
i. The Plaintiff issued a notice of completion/ hand-over on June 30, 2017 informing the readiness for energization of elements under COD-1.
ii. On the same day, nine Advance Bank Guarantees (ABGs) amounting to INR. 37,89,51,439/- assigned to Defendant No. 1 were released in favour of the Plaintiff, thereby reducing the Plaintiffs outstanding by this amount.
iii. Energization of COD-1 was carried out along with the
Plaintiff.
iv. As the plaintiff had satisfied /fulfilled all the conditions under the June 2017 MoM and milestones set thereunder for the payment mechanism to be triggered, hence payment of INR 1,00,00,000 and INR 5,00,00,000 were made in November 24, 2017 and January 23, 2018 respectively from the TRA to the plaintiff.
16. The plaintiff did all such acts necessary for the energization of COD-1, thus discharging its obligations under the June 2017 MoM. Despite the fact that the plaintiff achieved and completed the energization of COD-1, still the plaintiff received no payment from TRA since/after January 2018, thereby resulting in an outstanding balance of INR 127,99,28,634/- along with interest for delay in payment at 12% per annum.
17. The plaintiff has recently learnt that certain elements of the project under COD-1 has had been commissioned with effect from October 27, 2017 and that the MTCs have been paid into the TRA account from that date. Moreover, the plaintiff has also come across various tariff orders passed by the Uttar Pradesh Electricity Regulatory Commission (“UPERC”) recording the rates of tariff payable to SEUPPTCL for using of the COD -1 765Kvs Bara- Mainpuri Line Transmission line. Therefore, as per the plaintiff, MTCs are being received into the TRA. Filings available on the public domain and accessed by the plaintiff also show and/or indicate that MTCs have been paid to SEUPPTCL for UPPTCL’s use/consumption of the power generated by plants of SEUPPTCL, including the project.
18. Oriental Bank of Commerce filed an application under section 7 of Insolvency and Bankruptcy Code, 2016 (“IBC”) against Isolux which was admitted by the NCLT, Chandigarh Bench and Insolvency Proceedings were initiated against Isolux by way of an order dated 10.10.2018 in C.P. (IB) No. 97/Chd/HRY/2018. Thereafter, the plaintiff filed its claim before the Resolution Professional of Isolux as an Operational Creditor as per ‘Form B’ to the tune of INR 222,42,78,892/-. This claim amount consisted of amounts due to the plaintiff from Isolux in addition to and separate from the amounts due to it under the June 2017 MoM, including, but not limited to, claims for payment against equipment supplied and works done by the plaintiff under the Contracts and compensation for losses incurred by it in respect thereof.
19. Resolution Professional through a communication dated March 14, 2019, accepted and confirmed the plaintiffs claim to the extent of INR 55,76,85,612/- only. This communication was subsequently challenged by the plaintiff before NCLT, Chandigarh vide C.A. No. 576 of 2019.
20. Meanwhile, on February 09, 2019, the plaintiff sent a separate Notice of Default to Isolux (through its Insolvency Resolution Professional, Mr. Vikram Kumar), requesting release of the outstanding amount of INR 84,08,20,000/- (up to February 2019) pending from Isolux/SEUPPTCL in terms of the June 2017 MoM.
21. Isolux was subsequently ordered to be liquidated on February 06, 2020 by NCLT, Chandigarh. Pursuant to such liquidation being approved, the plaintiff filed its claim against Isolux for a sum of approximately INR. 222,42,78,892/- before the Liquidator on March 06, 2020. As set out hereinbefore, the claims before the Liquidator did not include claims for amounts which arise from the June 2017 MoM. The Liquidator, however, wrongfully assessed the plaintiffs’ claims in Liquidation to be (a) that of an operational creditor and (b) limited to INR. 51,81,40,456/-. The plaintiff preferred an appeal against the Liquidator’s assessment which is currently before NCLT, Chandigarh.
22. Defendant No. 1 also instituted insolvency proceedings against SEUPPTCL in 2019 through a petition bearing Company Petition (IB) No.l07/ALD/2019 as a financial creditor before NCLT, Allahabad. Vide order dated July 16, 2020, NCLT, Allahabad admitted the said petition and initiated Insolvency Proceedings against SEUPPTCL. An IRP was also appointed. The IRP subsequently rejected the plaintiffs claims against SEUPPTCL as an operational creditor. The plaintiff preferred an appeal against the decision of the IRP before the NCLT, Allahabad which is also pending before the said Tribunal.
23. The order dated July 16, 2020 initiating CIRP against SEUPPTCL clearly records that the defendant No. 1 has received payments from UPPTCL in lieu of services of SEUPPTCL. The defendant No. 1 has itself admitted that in addition to repayments by SEUPPTCL towards the debt amount, it has received payments from UPPTCL for SEUPPTCL on two occasions i.e. INR 75 crores on April 2018, and INR 65 crores on July 13, 2018 and that such payments were adjusted against interest, costs, delay, charges, etc. The said order clearly records SEUPPTCL’s statements that it had no knowledge of such payments and was kept in the dark by the defendant No.1 about such transactions. It is, thus, stated that the defendants have not only been receiving, remitting, disbursing, dealing with monies received by them on behalf of SEUPPTCL but more importantly, distributing/applying such monies unilaterally and without the approval/knowledge of SEUPPTCL, towards the satisfaction of their own dues.
24. Due to non-payment of dues, plaintiff issued a demand notice dated May 13, 2020, jointly addressed to SEUPPTCL and the defendants wherein it was highlighted that despite commissioning of COD-1 elements in October 2017, the defendants had breached their obligations under the June 2017 MoM by not releasing any payments since January 23, 2018. The plaintiff also stated that, in light of SEUPPTCL and the defendants’ default, the outstanding amount due now stood at an amount of INR 170,11,03,599/-, and that “the defendant No. 1 & 2 are also jointly and severally liable with Isolux and SEUPPTCL” for this amount “to the extent that they have received payments from TRA and the monthly transmission charges, to the exclusion of the plaintiff.
25. SEUPPTCL sent a response dated June 30, 2020 to the aforesaid demand notice, raising baseless claims of defaults/quality issues in relation to the plaintiffs performance of the Works, which had already been resolved by the plaintiff and which, in any event, did not pertain to the dues arising under the June 2017 MoM.
26. Defendant No. 1 also responded to the plaintiffs demand notice, through a letter dated September 04, 2020. In the response, defendant No. 1 refuted any liability to make payments to the plaintiff and stated that the matter pertains to Isolux/ SEUPPTCL and claims must be made against them. The reply stated that Defendant No. 1 took the initiative to organise meetings to resolve the deadlock between the plaintiff and Isolux/SEUPPTCL as the lead lender for the Project because SEUPPTCL had approached it for support in creating the payment mechanism. Further, the reply defendant No. 1 contended that the ‘primary responsibility’ for making payments thereunder is allegedly confined to Isolux/SEUPPTCL, relying on Clause 1(D) of the June 2017 MOM. In addition thereto, the response alleged that there is no privity of contract between the parties.
27. As per the plaintiff, the obligation to make payments under the June 2017 MoM would subsist and continue notwithstanding any and all dispute SEUPPTCL and/or Isolux may have with the plaintiff, more so because of the un-ambiguous non-obstante clause contained in Clause D of the June 2017 MoM, which stated, that “the payment mechanism herein described shall not be suspended nor terminated nor amended by any party thereof except only by mutual written agreement of all the parties thereof (notwithstanding any difference or dispute between parties of this MOM by new investors, utilities or subcontractors of the project or any dispute pending before any court, tribunals, arbitrators or any other Authority) until all amounts due to the plaintiff with respect to COD-1 as mentioned above are received by the plaintiff.” Therefore, the alleged liability of and/or any alleged disputes raised by Isolux/ SEUPPTCL with respect thereto are not relevant for the purpose of enforcement of plaintiffs’ rights under the June 2017 MoM.
28. It is stated that as a result of the defendants failure to ensure that plaintiff is paid from the TRA in terms of the June 2017 MoM, the plaintiffs dues have mounted to INR 193,14,90,933/- comprised of a principal amount of INR 127,99,28,634 and interest at 12% per annum amounting to INR 65,15,61,299/. Defendants are liable to make good the aforesaid amount/ losses directly resulting from their failure to adhere to the payment mechanism under the June 2017 MoM.
29. For cause of action, plaintiff states that the cause of action for filing the present suit first arose in January 2018 when the defendants did not make and/or release the payments from the TRA under the June 2017 MoM to the plaintiff in manner prescribed therein. The cause of action further arose every month that the defendants were bound to release the monthly payment under the June 2017 MoM and failed to do so. Thereafter the cause of action arose on September 04, 2020, when the defendant No. 1 refused to comply with the request made by plaintiff for the release of the amounts assigned to it in breach of its obligations under the June 2017 MOM. The cause of action is a continuous one and continues to subsist, and will subsist till the time relief as sought is granted. Hence the present suit.
30. Notice was issued to the defendants on 14.12.2021 and thereafter written statements were filed on behalf of the defendants.
31. Subsequently, defendants moved the present application i.e. 3015/2022 seeking rejection of plaint. Vide order dated 08.05.2023, notice was issued on the present application and the reply to the application was filed and thereafter rejoinder was also filed.
SUBMISSIONS ON BEHALF OF THE DEFENDANTS
32. Mr. Balbir Singh, learned senior counsel appearing for the defendants argue that the plaint does not discloses the cause of action against the defendants herein as the June 2017 MoM is an unstamped documents. Relying on Section 35 of Indian Stamp Act, 1899 (“1899 Act”), he submits that an instrument which is not duly stamped shall not be acted upon and is inadmissible in evidence for any purpose. Further, Section 35 of the 1899Act ensures that stamp-duty is paid before rights and obligations arising from an agreement are enforced. An unstamped document cannot be relied upon unless the applicable stamp duty and penalty thereupon is paid. Reliance is placed on In Re: Interplay between the Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899, 2023 SCC OnLine SC 1666, relevant paragraph of which is reproduced below:
“41. In terms of Section 35, an instrument which is not duly stamped is inadmissible in evidence for any purpose and it shall not be acted upon, registered, or authenticated. Clause (a) of the proviso to Section 35 stipulates that the bar contained in the provision is removed upon the payment of duty and the penalty (if any). The party or parties may pay the duty chargeable to the person who has the authority to receive evidence by law or by consent of parties. Section 35 is significant because it gives teeth to the Stamp Act by ensuring that stamp-duty is paid before rights and obligations arising from an agreement are enforced.”
33. Learned senior counsel relying on proviso of para D submits that the June 2017 MoM unambiguously does not attribute any liability upon the defendants to make payment to the plaintiff. Rather, categorically, only Isolux and SEUPPTCL are jointly and severally liable to make payments of due amounts to the plaintiff, if any, under June 2017 MoM subject to it standing legally binding and enforceable in law. Thus, the averments made in the plaint are contrary to the contents of June 2017 MoM. Plaintiff has no privity of contract with defendants and there was no intention/consenses-ad-idem between them to enter into any contractual relationship.
34. Thus, no claim whatsoever can exist against the defendants. There is nothing on record to show how defendants are liable to make any payment to plaintiff. Nothing is quoted in the plaint from the June 2017 MoM to show existence of contractual relationship between the plaintiff and defendants. He also relies on the notices dated 09.02.2019 and 11.02.2019 addressed by the plaintiff to Isolux and SEUPPTCL in this regard.
35. He also submits that plaintiff even after filing of the present suit has again taken the same stance in another judicial forum that only Isolux and SEUPPTCL were jointly and severally liable under the June 2017 MoM. In C.A. (AT)(I) No.1020/2022 (ABB Appeal) filed before Hon’ble National Company Law Appellate Tribunal, the plaintiff has categorically stated as follows:
“….Notably, the claim made by the Appellant before the Respondent no.1 was based on contractual agreements between the Appellant and the Corporate Debtor, which culminated into the minutes of meeting dated 21.06.2017 (hereinafter referred to as the ‘Binding MoM’), whereunder inter alia, the Corporate Debtor (along with one M/s Isolux Corsan India Engineering and Construction Private Limited (hereinafter referred to as the ‘Isolux’) categorically and unequivocally admitted the outstanding amount of the Appellant to the tune of Rs. 1,99,36,48,469. Furthermore, the Corporate Debtor and Isolux undertook joint and several liability towards all outstanding payment of the Appellant.…”
36. Thus, ex facie, only Isolux and SEUPPTCL were liable to make payment to plaintiff, if any (subject to MoM being declared as enforceable agreement), and it was never agreed between the parties that any liability would be attributed to defendants herein.
37. Plaintiff only has contractual relationship with Isolux and Isolux has sub-contracted a portion of work to be done in relation to the project owned by SEUPPTCL to the plaintiff. Defendants along with Bank of India (“BoI”) (collectively as “Lenders”) are merely lenders of SEUPPTCL. June 2017 MoM is a matter between the said parties i.e., Plaintiff, Isolux and SEUPPTCL. Only Isolux and SEUPPTCL are jointly and severally liable to make payments of due amounts to the Plaintiff, if any, under June 2017 MoM, subject to it standing legally binding and enforceable in law. The Plaint ought to be rejected on this ground alone.
38. Learned senior counsel further argues that defendant No. 1 being the lead lender for the purpose of development of the project had a limited role of merely facilitating/consenting disbursal from SEUPPTCL’s TRA account to the plaintiff upon such request made by SEUPPTCL. The said payments were made on request made by SEUPPTCL which were consented by defendant No. 1 as part of the procedure upon which release instructions were issued by SEUPPTCL to BoI. Thus, for defendant No. 1 to facilitate/consent disbursal of payments from the TRA to the Plaintiff, a request was needed to be placed by SEUPPTCL. On perusal of SEUPPTCL’s reply dated 30.06.2020, it is clear that in its view, the plaintiff was in breach of its commitment/obligations under the June 2017 MoM, both in terms of scope and timelines. Thus, the defendants have even otherwise not committed breach of any purported obligations under the June 2017 MoM, when SEUPPTCL was itself not agreeable to pay the Plaintiff on account of inter-se dispute with plaintiff.
39. Learned senior counsel further argues that it is trite law that parties to a contract which is sought to be enforced, are necessary parties. Further, if plaintiff opposes their impleadment then the Court may proceed to dismiss the suit. In this regard, reliance is placed on Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. &Ors., (2010) 7 SCC 417.
40. Learned senior counsel further argues that it is a clear case of forum shopping by the plaintiff, who has filed similar claims based on June 2017 MoM against different parties before different forums in order to unduly enrich itself by circumventing and abusing the process of law. The plaintiff has already approached NCLT/NCLAT inter alia seeking the same relief of payment of money under the alleged contract/ June 2017 MoM. The present plaint seeking damages is not maintainable for the claim for which recovery proceedings have already been resorted to earlier, by the plaintiff. The same would tantamount to abuse of process of law. Thus, the Plaint ought to be rejected on the ground of abuse of process of law and forum shopping by the plaintiff.
41. Further, that upon meaningful reading of the Plaint/Suit, it is submitted that the plaintiff, by indulging in suppressio vari and suggestio falsi, clever drafting, and misconstruction of June 2017 MoM, has tried to mislead this Hon’ble Court by creating an illusion of a cause of action against the defendants when no such cause of action exists and has wrongly portrayed that it is entitled for relief/damages as sought for alleged breach of purported contract by defendants of June 2017 MoM, reliance is placed on K. Akbar Ali v. K. Umar Khan and Ors., (2021) 14 SCC 51.
42. Lastly, Mr Singh, learned senior counsel submits that the present suit does not come within the scope and ambit of Commercial Jurisdiction under Section 2 (c) (vi) of the Commercial Courts Act, 2015 (CC Act, 2015), so as to confer jurisdiction on this Court. Section 2 (c) (vi) relates to construction and infrastructure contracts including tenders. Admittedly, there is no construction and infrastructure contracts entered between the plaintiff and the defendants. Thus, the present Suit is barred by law and ought to be rejected.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF
43. To refute the above submissions made by Mr Balbir Singh, learned senior counsel, Mr Arvind Nigam, appearing on behalf of the plaintiff vehemently opposes the application and submits that the June 2017 MoM is an independent agreement and it is an oral agreement reduced to writing. Defendants are under clear and independent obligations to release monthly payment of Rs.5.61 crores to the plaintiff. The claims by the plaintiff before IRP / Liquidator of Isolux & SEUPPTL are separate claims.
44. Learned senior counsel further submits that the June 2017 MoM was signed by Isolux, SEUPPTL, the plaintiff and the defendant No.1 (herein on its behalf as well as on behalf of the defendant No.2). Defendant No.1 is described in the June 2017 MoM as a “Party”, “Participant or “Signatory”. The June 2017 MoM casts a clear obligation upon the defendants to release payment of Rs.5.61 Crores per month, without any interruption and without any sanction, permission or concurrence from any party. The June 2017 MoM has been acted upon partly by release of two instalments of payments in November 2017 and January 2018.
45. Vide Demand Notice dated 13.05.2020, the plaintiff made it clear that the defendants were in breach of its obligation to release payment since 23.01.2018. It was also stated in the said Notice that the plaintiff has completed its obligations under June 2017 MoM of achieving COD and further that the project is operational and money is being received in the TRA account. There is no categorical denial of the above facts in the defendant’s reply dated 04.09.2020 but it only tried to evade its obligation by stating that the primary responsibility of discharging the liability was upon Isolux & SEUPPTCL and it stated falsely that without the request of the above two parties, it cannot release any payment.
46. Learned senior counsel further argues that by order of 06.02.2020, Isolux was directed to be liquidated and the insolvency proceedings of SEUPPTCL commenced on 16.01.2020. Subsequently, the Resolution Plan of SEUPPTCL was approved on 15.06.2022. The plaintiff’s stand is that the claim under the present Suit is a separate claim and, moreover, a commercial court of this Hon’ble Court is the only forum for adjudicating a commercial dispute arising out of breach of a contract. Hence, there is no question of any forum shopping.
47. He further submits that section 63 of IBC bars civil court to go into the matters in which NCLT has jurisdiction. Section 231 of IBC is also to the same effect. Since NCLT has no jurisdiction to entertain a suit for damages on account of a breach of contract, the present Suit is not barred by Sections 63 & 231 of IBC.
48. Learned senior counsel further submits that defendants have contended that since the last payment was made by the defendants in January 2018, the suit filed on 13.12.2021 is barred by limitation. As per the plaint, the cause of action is continuing. Annexure-D of June 2017 MoM stipulates payment to be made till February 2020 by the defendants and, in the event of delay, it would carry interest. Hence, the time would start running from February 2020 for the purpose of limitation. Further, the Hon’ble Supreme Court in Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117 excluded the period from 15.03.2020 till 28.02.2022 for the purpose of limitation on account of Covid-19. Hence, the suit is within time. Moreover, the question of limitation is a mixed question of law and facts; not to be decided under the provisions of Order VII Rule 11 of CPC.
49. In so far as insufficiently stamped document is concerned, Mr. Nigam, learned senior counsel submits that the application does not mention which document is insufficiently stamped and, if the applicant is referring to June 2017 MoM, it is clarified that the said MoM does not require any stamp duty as it is an oral agreement reduced to writing.
50. Lastly, he submits that the para 45(c) of the plaint states categorically that it is a commercial dispute in terms of Section 2(c)(vi) of the CC Act, 2015.
ANALYSIS AND FINDINGS
51. Heard the rival submissions advanced by learned senior counsels for the parties and perused the materials available on record.
52. The Hon’ble Supreme Court has time and again reiterated the ambit and scope of Order VII Rule 11 of CPC, the law is settled that while deciding an application under Order VII Rule 11 of CPC, it is the plaint only which is to be looked into along with the documents annexed with the plaint. Further the plaint has to be read as a whole and plaint cannot be rejected in part. If the plaint falls under any of the categories given under Order VII Rule 11 of CPC only then the plaint is liable to be rejected. The Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 has extensively discussed the law and the relevant extract reads as under:-
“23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12)
“12. … The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512], read in conjunction with the documents relied upon, or whether the suit is barred by any law.
……… ………..…. ……..……
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941]”
53. Admittedly, the principal document on which the plaintiff relies upon to seek damages against defendants is June 2017 MoM. On perusing the June 2017 MoM, it is clear that defendant no. 1 participated in the meeting and also acted on behalf of the defendant no. 2 as the defendants were the lead lender of the project as they jointly compromised 95% of the debt. In this regard, the relevant extracts of the June 2017 MoM reads as under:-
“b) PFC who jointly comprise 95% of debt along with Rural Electrification Corporation Limited (“REC”) confirmed that it is acting as the Lead Lender of Project and is duly authorized to act on behalf of PFC and REC.PFC recalled that, ABB in the last meetings/conference call held on 28-May-2017 had explained about its existing exposure towards Project and it need a strong payment security mechanism which provides them a clear visibility on settlement of dues from Isolux. ABB informed that there were dues of Rs.180,13,51,099/- for COD 1. However, after considering staggered payment of Rs. 5.61 crore p.m. starting from Nov-2017, the total amount works out to be Rs. 199,36,48,469/- on the basis of assumptions & calculations presented in Annexure-D. Isolux and SEUPPTCL confirmed that this shall be payable as soon as ABB gives clear instruction to Isolux that components as mentioned, at Annexure-B are ready to be energized. As regards COD 2 related dues of ABB, payment security need to be created now as such payments to ABB can be made from fresh equity infusion by new investor (Adani) post their investment, which is also acknowledged by Adani separately (Annexure-C).
c) SEUPPTCL had informed that in light of cost overrun issues and global hardships faced by the Isolux group, neither the EPC contractor nor SEUPPTCL nor their promoters were in a position to provide the security and hence it required the Lenders support in creation of the payment security to ABB by assigning part of the Monthly Transmission Charges of COD1, to be received by SEUPPTCL in their TRA bank account controlled and operated by PFC and the other lenders, towards ABB so as to enable ABB to complete the scope of work for achieving COD 1. SEUPPTCL had requested release of ABB’s Advance Bank Guarantees (ABGs) to provide a reduction in ABB’s exposure and earmarking 1/3rd of the Monthly Transmission Charges to be received by Company from Long Term Transmission Customers post COD 1 be used to settle ABB’s dues as listed in Annexure-D of Rs. 199,36,48,469 till the entire amount is settled.
d) Isolux and SEUPPTCL acknowledged the amounts stated in Annexure – D are due and payable to ABB as mentioned at point no. b) above without any further additional requirements or certifications from Isolux or SEUPPTCL or any other party. It was also agreed that if payments under this MoM are delayed beyond six months from the date of signing of this MoM, or if any monthly payments as per the payments plan in Annexure – D is not made for any reason then ABB shall without prejudice to the rights under the Contract, be eligible for interest calculated 12% p.a. on those delayed/deferred payments from TRA account, such interest payment shall be automatic without any need for concurrence or certification from Isolux or from SEUPPTCL or any other party.
…….….. …..………. ………….
f) Subsequently, lenders (PFC and REC, who jointly comprise of 95% of debt) held a meeting on 29-Mar-2017 and agreed that a net amount of INR 5.61 crores per month be made available to ABB for settling of their dues of Rs. 199,36,48,469/- as indicated above. The lenders also discussed and agreed on the release of ABB’s Advance Bank Guarantees (ABG’s) with PFC (totalling to Rs. 37.89 Crore) in case ABB adjusts corresponding advance of Rs. 45,42,62,809 meant for COD 2 work against part adjustment toward total outstanding of Rs. 199, 36,48, 469 for COD 1 works.
.……….. ………….. …………
Eventually, conference call were held on 19-May-2017, 22-May-2017 & 26-May 2017, and after discussions, the parties agreed on the following:
A) PFC confirmed the following mechanism which was agreed to by ABB and SEUPPTCL and Isolux:
………….. …..………. ………….
4. Thereafter an amount of INR 5.61 Crore, shall be paid to ABB directly from TRA account of the Project (out of project revenues), on a monthly basis, which is estimated by SEUPPTCL to start not later than 3 months of COD-1 initial energization. From such date, payments will be made without any interruption.
…………. ……………. ………….
C) The signatories herein confirm that they are duly authorized to execute this present document on behalf of their respective organizations. This MOM shall come into force upon signature of the parties and be firm, enforceable and binding on all the parties. Any party that is in breach of its commitments/obligations under this MOM shall be liable for actions by the affected party.
D) The payment mechanism herein described shall not be suspended nor terminated nor amended by any party thereof except only by mutual written agreement of all the parties thereof (notwithstanding any difference or dispute between parties of this MOM by new investors, utilities or subcontractors of the project or any dispute pending before any court, tribunals, arbitrators or any other Authority) until all amounts due to the plaintiff with respect to COD-1 as mentioned above are received by the ABB either through the mechanism provided herein this MOM or through other means as agreed and confirmed in writing by ABB.
Notwithstanding anything to the contrary contained herein, the representations, warranties, covenants and agreements made by parties (Isolux and SEUPPTCL) herein, and the liability of parties (Isolux and SEUPPTCL) hereunder towards ABB, are and shall be joint and several towards ABB and the Parties (Isolux and SEUPPTCL) agree to be jointly and severally liable towards payment of dues amounts to ABB under this MOM.”
(emphasis added)
54. The conjoint reading of the above para shows that though the primary responsibility of making the payment of Rs. 5.61 crores was of Isolux and SEUPPTCL, however, since they were unable to make the said payment, the defendants being lead lender assured payments to the plaintiff out of the TRA account. The said payment mechanism was put in place to cover the financial exposure of the plaintiff towards achieving COD-1. The TRA account was receiving payment from MTCs of COD 1 and was controlled and operated by the defendants. Defendants agreed that Rs. 5.61 crores per month be made available to the plaintiff for settling their dues of Rs.199,36,48,469 to be paid directly from the TRA account. All signatories, including Isolux, SEUPPTCL, and the plaintiff, agreed to the terms of the June 2017 MoM, binding them to fulfil their obligations or face liability. Defendants assured that a sum of Rs 5.61 crores per month would be released to the plaintiff from the TRA account without additional requirements or certifications. In furtherance thereto, defendants partly acted upon the June 2017 MoM by releasing two instalments of payments in November 2017 and January 2018.
55. At this stage, I cannot persuade myself with the argument advanced by Mr Balbir Singh, learned senior counsel that the prayer as framed in the suit cannot be allowed vis-a-vis the defendants relying on proviso of para D of June 2017 MoM.
56. The plaintiff has sought declaratory relief to state that the defendants are liable to make payments and further a declaration against the defendants to make that payment. The plaint relying upon June 2017 MoM categorically indicates that the defendants are liable to make the payments of the admitted amount and the plaintiff has prayed for the same.
57. The reliance placed by the defendants on proviso of para D is to be read harmoniously with para C. Even though liability to make payment is that of Isloux and SEUPPTCL, the June 2017 MoM contemplates that the liability would be cleared from the TRA account which is exclusively operated and controlled by the defendants. The comprehensive reading of the plaint shows that the plaintiff is seeking recovery of its dues from that TRA account which is held and controlled by the defendants.
58. This court while deciding application under Order VII Rule 11 of CPC is only required to see the plaint and not require to minutely interpret and deliberate each and every provisions of June 2017 MoM as if it was deciding the suit after detailed evidence led by the parties. The provisions of Order VII Rule 11 of CPC are drastic in nature and are to be exercised only when the plaint taken as a whole will not result in passing of a decree in favour of the plaintiff.
59. Prayers in the suit as quoted above categorically shows that the plaintiff has sought a declaration that the defendants are entitled to make payments of the admitted amount. Therefore, whether the defendants are liable or not can only be decided once parties have led their evidence. It would be unfair at this stage to minutely interpret the document without evidence having been led.
60. Further, Mr Singh has placed reliance on Section 35 of 1899 Act and In Re: Interplay between the Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the 1899 Act (supra)to urge that June 2017 MoM is an unstamped document and is inadmissible in evidence.
61. A perusal of June 2017 MoM clearly shows that it is recording oral discussions held in the conference call on 19.05.2017, 22.05.2017 and 26.05.2017. Hence, the document is only reducing in writing the oral discussions held earlier which is clearly borne out from the plain reading of the June 2017 MoM.
62. Section 35 of the 1899 Act reads as under:-
“35. Instruments not duly stamped inadmissible in evidence, etc. — No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :
Provided that—
(a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;”
63. The above section stipulates that the instrument chargeable with duty shall not be admitted in evidence if it is not duly stamped. Further the proviso (a) is an exception which states that if the stamp duty is paid together with a penalty then the embargo shall be removed and such instrument can be taken into evidence.
64. The judgement i.e. In Re: Interplay between the Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the 1899 Act relied upon by the learned senior counsel for the defendants cannot be read in piecemeal. The conclusion arrived by the Hon’ble Supreme Court in the above cited judgment is extracted below:-
“234. The conclusions reached in this judgment are summarised below:
a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;
b. Non-stamping or inadequate stamping is a curable defect;
c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists;
d. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal; and
e. The decision in NN Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent.”
65. On perusal, it makes clear that if the document is not duly or properly stamped then it will be inadmissible in evidence but such document will not be void or void ab initio. Further, the non-stamping of the document is the curable defect meaning thereby if the instrument is not duly stamped then it can be stamped during the proceedings.
66. Section 3 of 1899 Act provides three categories of instruments which shall be chargeable with duty and further the proviso also provides three other categories in which no duty shall be chargeable.
67. Admittedly, the document i.e. June 2017 MoM is not stamped. The stage of evidence is yet to arrive and the Court while considering Order VII Rule 11 of CPC cannot reject the plaint merely on the ground that the document annexed with the plaint is not stamped as this question will be considered when the document is sought to be tendered in evidence during enquiry or trial. Order VII Rule 11 does not stipulate that the document annexed with plaint, if not stamped then it should be stamped before/at the registration of the suit.
68. The Court at this stage cannot go into the question which is a mixed question of fact and law that whether the document (June 2017 MoM) is chargeable with stamp duty or not. Further the above question will only arise when the document (June 2017 MoM) will be placed for admissibility at the stage of evidence.
69. The next argument advanced by Mr Singh, learned senior counsel is that the suit is barred by limitation as it is filed beyond 3 years of limitation period.
70. It is stated by Mr Nigam, learned senior counsel that it is the case of continuous case of action as every month a fresh cause of action would arise on account of non-payment of Rs. 5.61 crores. Further, relying on Cognizance for Extension of Limitation (supra), he submits that period from 15.03.2020 to 28.02.2022 will be excluded for the purpose of limitation. Hence the suit is within the limitation.
71. The Minutes of Meeting is dated 29.06.2017. As per Annexure-D of June 2017 MoM, a payment of Rs. 5.61 crores every month was to be paid from November 2017 to February, 2020. Pursuant to the June 2017 MoM, defendants acted upon the same and made payments for the month of November 2017 and January 2018 and since thereafter no payment was made. Vide legal notice dated 13.05.2020 addressed to the defendants, the plaintiff demanded payment as the defendants had not made payments since January, 2018. Defendants responded to the above notice on 04.09.2020 by refuting any liability to make payments. Thereafter the suit was filed on 13.12.2021.
72. The Hon’ble Supreme Court in State of Gujarat v. Kothari & Associates, (2016) 14 SCC 761 in somewhat similar circumstances has held as under:-
“11. …….The factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over the canal/site by the appellant State constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the respondent could have rescinded the contract or possibly claimed compensation due to prolongation of time and resultant escalation of costs. Of course the respondent is enabled to combine all these causes of action in one plaint, as postulated in CPC provided each claim is itself justiciable. Even the respondent has argued before the High Court that the suit was based on successive breaches committed by the appellant State. In our opinion, the suit was required to be filed within three years of the happening of each breach, which would constitute a distinct cause of action. Article 55 specifically states that in respect of successive breaches, the period begins to run when the breach in respect of which the suit is instituted, occurs. In this vein, Rohtas Industries Ltd. v. Maharaja of Kasimbazar, China Clay Mines [Rohtas Industries Ltd v. Maharaja of Kasimbazar, China Clay Mines, ILR (1951) 1 Cal 420] is apposite as it has held that when a party agrees to deliver certain goods every month for a duration spanning certain years, the cause of action for breach for failure to deliver in a particular month arises at the end of that month and not at the end of the period of the contract……”
73. On perusal, it is clear that the cause of action would arise fresh on each month on non-payment of the agreed amount to the plaintiff. Admittedly, the last payment/instalment was made in 23rd January, 2018 and since then no payment was made to the plaintiff. Therefore, the first cause of action arose in February, 2018, so the plaintiff was required to file the suit on or before February, 2021. The Hon’ble Supreme in Cognizance for Extension of Limitation (supra) has suspended the period of limitation from 15.03.2020 to 28.02.2022. Since the suit has been filed on 13.12.2021, no part of cause of action of the plaintiff is barred by limitation.
74. Mr Singh further argued that Isolux and SEUPPTCL are necessary parties as they are parties to June 2017 MoM, reliance is placed on Mumbai International Airport Pvt. Ltd. (supra). It is stated in the plaint and noted above that Isolux was liquidated vide order dated 06.02.2020 passed by NCLT, Chandigarh. Similarly, defendant no. 1 has filed insolvency proceedings against SEUPPTCL and vide order dated 16.07.2020, IRP has been appointed.
75. Therefore, by virtue of Section 63 read with Section 231 of IBC, no civil court or authority will have the jurisdiction to entertain any suit or proceedings in respect of any matter over which NLCT or NCLAT has the jurisdiction. As a result, no suit will lie against Isolux and SEUPPTCL in view of the provisions contained in the IBC. The plaintiff has filed the present suit seeking damages against defendants herein being the lead lender for the project. The decree as sought for can be passed in the absence of Isolux and SEUPPTCL.
76. Reliance on Mumbai International Airport Pvt. Ltd. (supra) is misconceived. In view of my discussion above, I am of the opinion that a decree can be passed against the defendants in the absence of Isolux and SEUPPTCL.
77. Mr Singh, learned senior counsel had urged that plaintiff is doing the forum shopping as plaintiff has filed its claims against Isolux before the liquidator arising from June 2017 MoM. Further, plaintiff has also filed its claims against SEUPPTCL before IRP arising from June 2017 MoM. Hence, the plaintiff is abusing the process of law. As noted above, plaintiff has stated in the plaint itself that the claims filed before the liquidator and IRP against Isolux and SEUPPTCL respectively are not the claims arising from the June 2017 MoM but not limited to, are claims for payment against equipment supplied and works done by the plaintiff under the Contract and compensation for the losses incurred by it. While deciding Order VII Rule 11, the court cannot go into the correctness of the averments made in the plaint and the plaint has to be read as a whole and cannot be rejected in piecemeal. Even assuming the argument of Mr Singh is accepted, then also it requires evidence to be led by the parties as to the claims made in the suit, the claims made before the IRP and the claims made before liquidator.
78. Mr Singh, learned senior counsel has urged that the present suit does not fall under the category of Section 2(c)(vi) of Commercial Court Act, 2015. Hence, this court has no jurisdiction to entertain the suit.
79. Section 2(1)(c)(vi) of the CC Act, 2015 reads as under:-
“2. Definitions.—(1) In this Act, unless the context otherwise requires,––
(a) – (b)…..
(c) “commercial dispute” means a dispute arising out of––
(i) – (v)……
(vi) construction and infrastructure contracts, including tenders;”
80. The Division Bench of Andhra Pradesh High Court in Blue Nile Developers (P) Ltd. v. Movva Chandra Sekhar, 2021 SCC OnLine AP 3964 has extensively dealt with the above clause. The relevant extracts is reproduced below:-
“22. Hence from the above, it is clear that the “legislature” has included the various types of commercial transactions to bring under the fold of “commercial dispute” in case of any dispute arises from any of those transactions. On a careful reading of the above said provision of the Act, it is obvious that the legislature has taken due care while incorporating the above said clauses from (i) to (xxii) in Section 2(1)(c) of the Act by avoiding the repetition of words and sentences without effecting the full fledged meaning of the same even on expansion of the said each clause. Therefore, either giving any restrictive meaning or reading of a clause in isolation and expansion of one word only in the said clause would hamper and frustrate the meaningful definition of the said clause on it’s expansion by abrogating certain category of transactions from the purview of the benefit of the above said Act which is not otherwise the intendment of the legislature in bringing out the said enactment.
23. For the sake of illustration, if we confine the definition of clause (vi) of the above said provision of the Act to the infrastructure contracts only, then it would exclude the category of construction contracts and construction and infrastructure contracts from it’s purview.
24. Suppose, if it is read as “construction and infrastructure contracts” as one word/one sentence, then it would exclude the category of the construction contracts and infrastructure contracts separately from its purview.
25. But that is not the intendment of the above said central enactment, as it is clear from the scope and object of the Act. All the types of “commercial transactions” are saved in the Section 2(1)(c) of the Act subject to the condition that it satisfies the “specified value” stipulated under the Act for the purpose of assumption of the jurisdiction by the Special Court/the Commercial Court. Except that no category of commercial transaction is excluded from the purview of the above said Act which is evident from the reading of the above said section and its clauses.”
81. The above said judgement was also relied by a Coordinate Bench of this Court in Raj Kumar Gupta v. Jagan Nath Bajaj, 2022 SCC OnLine Del 2995.
82. The genesis of the dispute between the parties arise from the execution of the power project i.e. Substation Portion of 765 KV S/C Mainpuri, Bara Line with 765 KV/400 KV AIS at Mainpuri and associated scheme/work in the state of Uttar Pradesh. Plaintiff was engaged for design, supply, transportation, erection, testing and commissioning, including civil works for the power project.
83. Pursuant to the execution of the Contracts as noted above, plaintiff was not receiving the due amounts, consequently, June 2017 MoM was executed.The consideration for the plaintiff was to receive the dues and reciprocal consideration for the defendants was to protect their investment/loans to the project which could not be recovered unless the energization took place and the project started generating power. The parties herein are jointly working for the power project to install the substation and to provide electricity.
84. Relying on the above said observation made in Blue Nile Developers (P) Ltd (supra), the disputes, according to me, would be included within the ambit of “construction and infrastructure contracts, including tenders”.
85. CONCLUSION
86. In view of the findings noted above, at this stage, I am unable to hold that the plaint fails to disclose the cause of action against the defendants and should be rejected. The application stands dismissed.
87. Needless to add that the observations made above will have no bearing on the merits of the case and are only relevant for the purpose of deciding the present application.
CS (COMM) 648/2021
88. List before Joint Registrar on 21.05.2024.

JASMEET SINGH, J
APRIL 26th, 2024/(MSQ)

CS (COMM) 648/2021 Page 1 of 38