TaxTMI 
TaxTMI 
2017 (7) TMI 665
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....f, defendant no. 2 and the defendant No. 3 formed the defendant No. 1 Consortium for carrying out some works for the defendant no. 5 Organizing Committee for the Delhi Commonwealth Games, 2010. The said works have admittedly been carried out. However arbitration between the defendant no. 1 Consortium and defendant no. 5 Organizing Committee is pending, in which the defendant no. 1 Consortium as well as the defendant no. 5 Organizing Committee have made claims against each other. 6. The material relief claimed by the plaintiff in the suit is for recovery of Rs.6,99,24,861/- jointly and severally from the defendants no. 1 to 3 together with interest thereon. 7. The counsel for the defendants no. 1 to 3 has argued that the plaintiff, till finalization of the accounts and which cannot be done till the pendency of the arbitration proceedings aforesaid, was entitled to only 20% of the payments received from the defendant no. 5 Organizing Committee and in fact from time to time has been paid on the said understanding only. 8. The contention of the counsel for the plaintiff is that the plaintiff was entitled to the entire payments received by the defenda....
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....the defendant No.3 is a company incorporated under provisions of the Indian Companies Act, 1956 and is a subsidiary of PICO India Exhibits Contractor Pvt. Ltd. (in short 'PIEC') which is a Singapore based company. 5. A Consortium Agreement dated 19th December, 2009 was entered into between the plaintiff and defendant Nos. 2 and 3 wherein it was agreed to incorporate a joint venture company in which plaintiff and defendant Nos. 2 and 3 were to have shareholdings in the ratio of 20%, 60% and 20% respectively. As per the plaintiff it was also agreed that all profits and losses were to be shared in the said ratio only. Defendant No.1 was incorporated in terms of the compendium dated 19th December, 2009 for the purpose of bidding and execution of the overlays tenders floated by the Organizing Committee, Common Wealth Games 2010 Delhi, defendant No.5 herein. It is the case of the plaintiff that defendant No.1 was not incorporated as a company but was in the nature of an unregistered partnership firm with plaintiff, defendant No.2 and defendant No.3 as its partner for sharing the profit and loss in the ratio as mentioned above. Defendant No. 1 submitted an Expression of Interest ('EOI'....
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.... listed in Appendix 2 PHK & PEMI: All other works confirmed by CWGOC Delhi 2010, listed in Appendix 3 Any changes to the scope of work assigned to Deepali per Appendix 2, except for any changes imposed by CWGOC on the consortium, must be mutually agreed by all parties. (3) Amounts received by the JV on contracts with the CWGOC Delhi 2010 in respect of work performed by Deepali, within the scope of work described in Appendix 2 (including any variations), minus 23% shall be paid to Deepali and the remainder shall belong to PHK. The net amount after deduction of the 23% is inclusive of the 10.3% service tax but excludes any tax deducted at source. Deepali shall provide PHK on demand any tax certificates reasonably required by PHK (including but not limited to anything related to the 10.3% Service Tax). (4) In the event there are any new contracts awarded by CWGOC Delhi 2010 to the consortium, the works in the new contract equivalent to 20% in value minus 23% to be paid to PHK shall be awarded to Deepali only after this has been mutually agreed by the parties, having regard to the capacity and capability of the respective Members to fulfil the scope ....
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.... such deduction shall be apportion to PHK & PEMI 80%, and to Deepali 20%. 3.3 Article 8.2 (a) Amend: "The invoiced amount shall be paid to the relevant JV member by the JV after each respective payment by Delhi 2010 and within thee (3) days after the aforementioned payment is effected by Delhi 2010. It is agreed that remuneration by Delhi 2010 shall be deemed to have been received by the JV only if it has been duly deposited with the bank account of the JV designated for this purpose" to : "The invoiced amount shall be paid to the relevant JV member by the JV after each respective payment by Delhi 2010 and within ten (10) days after the aforementioned payment is effected by Delhi 2010 and deposited into the JV bank account." (b) Delete:"From the amounts received by the JV, following any legal deductions, 4% out of it will remain in a reserve in order to be used in case of debts of the JV as a result of poor workmanships, penalty clauses, insurance coverage and the like. This reserve, if not disposed of as aforesaid, will be distributed to the JV members pro rata to their participation percentages in the JV, after final acceptance of the Project, ....
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....as sent an email along with an attachment giving the scope of the work delivered by the plaintiff and that till stage 4 deducting 23%, the work done by the plaintiff was for a sum of Rs.20,57,06,928.28/-. Therefore, there is clear admission of defendant Nos. 1 to 3 for a further liability of Rs.4,19,05,956/- of the plaintiff. Even in the reply to Paras 13 and 14 of the present application, defendant Nos. 1, 2 and 3 have stated that without prejudice to the contentions, even if there is any admission it would be upon the party to demonstrate in trial that the admission was erroneous or wrongly made. It is further stated that assuming the email dated 10th March, 2011 contained any admission which it does not at all, that account of deductions made due to the bad workmanship of the plaintiff had not been adjusted. 17. The legal position on admission is well settled. The Division Bench of this Court in the decision reported as 2007 (142) DLT 483 Vijaya Myne vs. Satya Bhushan Kaura noting the law laid down by the Supreme Court held: "12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncent as the learned Single Judge has acco....