AI Drafter 
TaxTMI 
TaxTMI 
2019 (3) TMI 2018
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....efendants; c) Any other or further relief which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may also be granted." 2. I.A. No. 14036/2017 has been filed by the plaintiff under Order XII Rule 6, Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') for judgment on admission and I.A. No. 14064/2017 has also been filed by the plaintiff under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'Commercial Courts Act, 2015') for summary judgment. FACTS 3. Initially the plaintiff and defendants had entered into an agreement dated 18th September, 2012 (hereinafter referred to as 'First Agreement') under which the plaintiff had to supply a total number of 630 'Modular Kitchens' to the defendants, for installation in the defendants' Projects at-Gurgaon under the names "The Edge Towers, The Atrium, The View (Ramprastha City)". 4. As per the First Agreement, the defendants had to construct the apartments by 31st December, 2012 and the plaintiff was required to install a minimum order of....
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.... Previous Agreement, and (b) a sum of Rs. 2,53,125/- to VM for a sample kitchen installed by VM as required by RPC in sector 95 Gurgaon project, and (c) a sum of Rs. 42,40,750/- to VM as price escalation of 73 kitchens as per Clause 2 & Schedule II of this Agreement, and (d) therefore the balance remaining with VM is Rs. 29,06,125/- which shall be retained by VM as an interest free security deposit which may be adjusted towards the monies owed by RPC to VM at any point in time. The aforesaid security deposit of Rs. 29,06,125/- if not adjusted by VM shall be refunded to RPC at the time of completion of installation of the 133 kitchens or at final settlement of accounts between RPC & VM whichever is later. (emphasis supplied) 7. In accordance with the Second Agreement, the defendants had to make all apartments ready and available to the plaintiff for installation of 'Modular Kitchens' by 15th February, 2015. However, the defendants once again, failed to do so. 8. On 28th May, 2015, the plaintiff filed the present suit for recovery of Rs. 2,18,58,875/- (Rupees Two Crores Eighteen Lacs Eight Hundred Seventy Five Only) along with interes....
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.... "5. We are informed by Mr. Shivendra Dwivedi, learned counsel for the appellant that the respondents have since proposed to dispose of such goods by way of a public auction. Mr. T.K. Ganju, learned Senior Counsel for the respondent has placed before us a copy of an advertisement dated 26th August, 2017 published in the English edition of the Indian Express as well as the Hindi newspaper, Jansatta, proposing the auction of the goods on 31st August, 2017. We are informed that four parties have approached the respondents towards purchase of the goods. Mr. Ganju submits that the respondent has no objection if the appellant wishes to participate in the bidding as well. 6. It is submitted by Mr. Dwivedi (counsel for the defendant) that so far as the proposal of the respondent to sell the goods by a public auction is concerned, the appellant would have no objection. xxx ........ 7. The submission on behalf of the appellant is that upon the working of the above clause, the appellant may be found entitled to amounts from the respondent. It is further submitted that the working of the clause may get prejudiced if the respondent was permitted to appropriate the pro....
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....ts ready and available to the plaintiff for installation of the Modular Kitchens by 15th February, 2015-which the defendants failed to construct. 17. Learned counsel for the plaintiff submitted that by virtue of Section 55 of the Indian Contract Act, 1872, once the time had been specified in an agreement, time was the essence of the contract and the parties had to adhere to the same. He emphasized that in the present suit it was an admitted fact that the defendants had failed to comply with the deadline of 15th February, 2015 mentioned in the Second Agreement. 18. Learned counsel for the plaintiff contended that Clause 5 of the Second Agreement stipulated that if the defendants did not make the apartments ready for installation of the Modular Kitchens by 15th February, 2015, the defendants would pay to the plaintiff a total sum of Rs. 2,47,65,000/- (Rupees Two Crores Forty Seven Lacs Sixty Five Thousand Only) minus (a) the price of the kitchens already installed; and (b) the unadjusted portion of security deposit etc. 19. He further stated that the defendants had never refused to pay the price agreed under the Second Agreement as would be apparent from its Clause 3. Clause....
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....efendants contended that the plaint was based on Clause 5 of the Second Agreement. He submitted that Clause 5 contemplated reciprocal obligations on both the parties and the plaintiff by way of its own conduct of sale of the kitchens, in an auction, had rendered performance of Clause 5 impossible/infructuous. Learned counsel for the plaintiff submitted that if the plaintiff were allowed to claim the stipulated amount of Rs. 2,47,65,000/- (Rupees Two Crores Forty Seven Lacs Sixty Five Thousand Only) without performing the reciprocal obligation of supplying the kitchens, it would amount to re-writing the agreement which was impermissible. Clause 5 of the Second Agreement is reproduced hereinbelow:- "5. That VM shall be liable to install kitchens in the apartments of RPC customers upto a maximum period of 90 days from the date of signing of this Agreement. Notwithstanding anything contained in this Agreement, in the event RPC does not ready all the apartments for installation of modular kitchens by 15th February 2015, then RPC shall pay to VM forthwith a total sum of Rs. 2,47,65,000/- minus: (a) the price of the kitchens already installed or under installation by VM and (b) m....
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....nnot go beyond the pleadings. 27. Learned counsel for the defendants stated that the plaintiff had to prove that it had incurred the cost of 133 kitchens in the form of raw material procurement, failing which it would be entitled to the profit element it would have had under the Second Agreement only and not the entire selling price because that would result in double recovery of amount for the plaintiff. As a matter of illustration, he stated that if the selling price of the kitchen is Rs. 100/- and the cost of importing these kitchens was Rs. 60/-, the plaintiff if able to prove that it had incurred the cost of importing the kitchens would be able to recover the entire selling price that is Rs. 100/- for it to make the contractual profit of Rs. 40/-. However, if the plaintiff were to be unable to show that it had incurred the cost of importing these kitchens/cost of raw material, it would only be entitled to claim the profit element of Rs. 40/-. He stated that awarding Rs. 100/- to the plaintiff would result in placing it in a better position than if the contract had been performed. 28. In view of the aforesaid illustration, learned counsel for the defendants stated that in....
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....7/2017). 34. Order XII Rule 6 CPC empowers this Court to speedily pronounce judgment in a suit at any stage on the basis of admission of facts which have been made either in the pleadings or otherwise. The Apex Court in Uttam Singh Duggal & Co. Ltd. vs. United Bank of India & Ors., (2000) 7 SCC 120 has held as under:- "12. …..The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled". We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed." (emphasis supplied) 35. The Supreme Court in Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr., (2010) 4 SCC 753 has held that the principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the....
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....the apartments ready for installation of the Modular Kitchens by 15th February, 2015, the defendants would pay the plaintiff the admitted base price of 2012 of Modular Kitchens of Rs. 2,47,65,000/- (Rupees Two Crores Forty Seven Lacs Sixty Five Thousand Only) minus the price of the kitchens already installed and the unadjusted portion of the security deposit. e. The defendants in their written statement have not made any categorical or specific denial of the plaintiff's claim. The defendants have not filed any document to deny the claim of the plaintiff. f. The defendants have not pleaded or made out a case of frustration and/or for the agreement to be declared void on account of being an agreement to do an impossible act under Section 56 of the Indian Contract Act, 1872. g. Defences regarding environmental issues, shortage of material as well as labour pre-date the Second Agreement and therefore cannot be put forward as a defence to its non-performance, besides being vague and bald pleas without any supporting document. Further, even if these factual assertions are accepted, there is no force majeure clause in the contract between the parties which w....
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....S (SUPRA), MAULA BUX VS. UNION OF INDIA (SUPRA), AND FATEH CHAND VS. BALKISHAN DAS (SUPRA). FURTHER, NONE OF THESE FOUR JUDGMENTS ARE IN THE CONTEXT OF SUMMARY JUDGMENT UNDER ORDER XII RULE 6 AND ORDER XIII-A 42. The judgment in Kailash Nath (supra) having been rendered by a Bench of two Judges of the Apex Court cannot and does not overrule the law laid down by Coordinate or Larger Benches in ONGC vs. Saw Pipes, AIR 2003 SC 2629, Maula Bux vs. Union of India, AIR 1970 SC 1955 and Fateh Chand vs. Balkishan Das, AIR 1963 SC 1405. In fact, in Kailash Nath (supra), it has been held as under:- "43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows: xxx xxx xxx 43.6. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded." 43. In the opinion of this Cour....
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....0,750/- as price escalation of the 73 modular kitchen as per the details set out in Schedule II attached hereto & forming part of this Agreement. The payment of aforesaid sum of Rs. 42,40,750/- is being made in terms of Clause 1(c) hereinabove. 5. …in the event RPC does not ready all the apartments for installation of modular kitchens by 15th February, 2015, then RPC shall pay to VM forthwith at total sum of Rs. 2,47,65,000/-…. Schedule I CALCULATION FOR KITCHENS BOOKED BY CUSTOMERS OF RPC AT OLD RATES (emphasis supplied) 47. Since the defendants have admitted the execution of the aforesaid agreements, they have also admitted the cost price of the kitchens. It is pertinent to mention that the defendants themselves had paid Rs. 2,53,125/- to the plaintiff for a sample kitchen installed by it. The said fact has been recorded in Clause 1(b) of the Second Agreement executed between the parties. 48. Consequently, as the plaintiff in the present suit is only seeking recovery of admitted costs of 2012 of the Modular Kitchens without any element of profit and/or penalty or damages, this Court is of the view that there is no triable issue which ....