Calcutta High Court
Itd Cementation India Ltd vs Hindustan Steel Works Construction Ltd ... on 15 June, 2017
Author: Soumen Sen
Bench: Soumen Sen
OD-14
ORDER SHEET
GA 2876 of 2015
With
CS 268 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ITD CEMENTATION INDIA LTD.
Versus
HINDUSTAN STEEL WORKS CONSTRUCTION LTD AND ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 15th June, 2017.
Appearance:
Mr.Ajay Krishna Chatterjee, Sr. Adv.
Mr.Ratnanka Banerjee, Sr. Adv.
Mr.Aniruddha Roy, Adv.
Mr.Ratnesh Kr. Rai, Adv.
Mr.A.Basu, Adv.
Mr.S.Bhattacharya, Adv.
Mr.Tilak Kumar Bose, Sr. Adv.
Mr.Rohit Mukherji, Adv.
Mr.Soumabho Ghosh, Adv.
Mr.S.Bose, Adv.
Mr.R.Bose, Adv.
Mr.Anirban Roy, Adv.
Mr.A.Singh, Adv.
Mr.Partha Banerjee, Adv.
The Court: In this application for summary judgment the plaintiff has prayed for release of retention money of Rs.70,29,946/-. The 2 basis of the claim appears to be that the plaintiff was appointed as a sub-contractor and having executed the said work to the satisfaction of the employer meaning thereby the defendant no.1, the plaintiff is entitled to release of the retention money.
The plaintiff at this moment is not making any other claim save and except release of retention money in this application.
The plaintiff obviously in view of Clause 17.60 could not have asked for any other sum as the payment of bills for the work executed is payable within ten days after receipt of corresponding payment from NTPC being the defendant no.2 herein.
It appears that an arbitration proceeding between the defendants is pending before Mr.Justice Vijender Jain, retired Chief Justice of Punjab and Hariyana High Court and His Lordship has already entered reference. The plaintiff is however not a party to the said proceeding. The principal argument advanced on behalf of the plaintiff appears to be that the plaintiff, wholly unconnected with the dispute between the defendant no.1 and defendant no.2, is entitled to release of at least retention money as particularised in paragraph 43 serial no.(ii) and (iii) of the petition aggregating to a sum of Rs.79 lakhs, approximately.
After the defendant has entered appearance and filed written statement, this application has been filed with the limited prayer for releasing the aforesaid retention money.3
Initially, it was a desire of the Court that the defendant nos.1 and 2 settle the matter amongst themselves so that a comprehensive settlement can be arrived at between the parties.
It however appears now that the disputes are pending for adjudication before the arbitrator. The defendant no.1 in substances argued that the obligation is joint and in this regard, has referred to the Memorandum of Understanding and pre-tender association agreement which refers the defendant no.1 as the lead associate. The pre-tender association agreement records that the plaintiff and the defendant no.1 entered into MoU on 26th August, 2013 with intention to jointly bid for and/or execute project as Associates so as to combine their respective synergies to bid for any work and ensure success in award of work. The plaintiff would be responsible for the complete work related to piling work associate agency. The parties appeared to have executed a joint Dead of Understanding in relation to the execution of the said project which records that the parties shall jointly execute the said contract.
At this stage, the Court is required to be satisfied whether the defendant no.1 has been able to raise a trible issue. The defendant no.1 may or may not succeed at the ultimate trial but if a plausible case is made out, that would be sufficient to allow the defendant to contest the proceeding.4
In my view, the Clause 17.6 cannot be read in isolation and has to be read along with the other documents on record in order to find out the intention of the parties which can only be gathered and decided at the trial.
Under such circumstances, this application stands dismissed. It is needless to mention that the observations are prima facie and shall not affect the final hearing of the suit.
(SOUMEN SEN, J.) dg2