Calcutta High Court
M.L. Dalmiya And Company Limited vs Pragati Engineering Pvt. Limited And ... on 8 March, 1989
Equivalent citations: (1990)2CALLT178(HC)
JUDGMENT A.K. Nandi, J.
1. Two companies have fallen out. One has sued another for recovery of a sum of five lakhs and odd, and for injunction, both permanent and temporary, restraining the other from realising his dues from Engineers India Limited.
2. Engineers India Ltd. accepted the tender of Pragati Engineering Private Ltd. for a project at Manuguru in Andhra Pradesh. By means of correspondence between the two contending parties, the plaintiff-appellant M.L. Dalmiya & Co. Ltd. and the respondent No. 1 Pragati Engineering Pvt. Ltd., the former accepted the sub-contract under the latter to execute the work. In no time dispute arose over payment. The appellant M.L. Dalmiya & Co. Ltd., alleged that the respondent No. 1 Pragati Engineering Pvt. Ltd. did not adhere to the payment schedule agreed upon by the parties. In a meeting held on 19.9.86 the parties principally came to two terms. The respondent No. 1 would issue cheques for a sum of Rs. 240000/- to the appellant. He would also execute an irrevocable power of attorney which would authorise the appellant to submit bills and receive payments from respondent No. 2 Engineers India Limited. Anr. obligation to intimate the particulars of such bills and payment to the respondent No. 1 was cast upon the appellant. The respondent No. 1 issued cheques for Rs. 240000/- and Rs. 50,000/- which were all dishonoured and bounced. The appellant, however, received payment of Rs. 205845.22 from respondent No. 2 virtue of the irrevocable power of attorney. Nevertheless the appellant stopped execution of the work on the plea that the cheques were all bounced. By a next meeting on 17.12.86 the parties sought to resolve their dispute. In pursuance of an agreement arrived at in this meeting the appellant received a further payment of Rs. 125000/- from respondent No. 2. It is claimed that the appellant thereafter completed the work and submitted his final bill for Rs. 654916.84 on or about 22.7.87. The appellant received a further payment of Rs. 194679/- from respondent No. 2 on 25.8.87 and 15.9.87. The balance of Rs. 460237.84 remained outstanding. In order to avoid payment the respondent No. 1 revoked the irrevocable power of attorney on or about 8.2.88 and is trying to collect its dues from respondent No. 2. So the appellant seeks to resist the realisation of the dues by the respondent No. 1 from respondent No. 2 by means of an order of injunction.
3. The respondent No. 1 in his affidavit-in-opposition admits to have entered into the alleged sub-contract by means of correspondence. The terms were all laid down in letters dated 14.5.85, 19.12.85 and 15.1.86. It is admitted that pursuant to the terms laid down in the meeting on 19.9.86 issued cheques for Rs. 240000/- and executed a power of attorney as alleged. But a payment of Rs. 125000/- was received by the appellant from respondent No. 2. It is contended that the whole amount of Rs. 240000/- has been paid by further payment and adjustment. Finally it was discovered that by virtue of power of attorney the appellant received an over payment of Rs. 79930.80 which they promised to repay in writing. The appellant did not forward copies of bills submitted to respondent No. 2 nor the statement of payments received from respondent No. 2 as agreed upon. It did not complete the work nor obtained completion certificate from respondent No. 2. Further, the appellant did not submit measurement of works nor carried out the waterial reconciliation. It did not furnish the performance Bank Guarantee either. In such circumstances, the respondent No. 1 alleges, that it had to revoke the irrevocable power of attorney. It is urged that the appellant having suppressed material facts cannot get injunction.
4. The respondent No. 2 did not ever enter appearance in this case.
5. Admittedly there was an agreement between the contending parties for execution of the alleged work in Andhra Pradesh which was awarded to respondent No. 1 by respondent No. 2. It is also admitted that difference and dispute arose between the parties which they sought to resolve in several meetings. Undisputedly pursuant to a meeting the respondent No. 1 issued cheques for Rs. 240000/- in favour of the appellant which were all dishonoured. There is no dispute either that the respondent No. 1 executed a power of attorney in favour of the appellant authorising him to submit bills to the respondent No. 2 and receive payment from him. It is admitted that the said power of attorney was subsequently revoked.
6. The contention of the respondent No. 1 is that the cheques having been dishonoured, payments in respect of the cheques was made to the appellants. That is not disputed either. As a matter of fact we find a cheque No. 0537637 dated 11.7.86 for Rs. 80,000/- drawn on State Bank of Hyderabad in favour of the appellant which was never encashed nor did it find place in the list of dishonoured cheques furnished by the appellant. Reliance is placed upon a minutes of a meeting on 7.2.87 to contend that the appellant received an over-payment of Rs. 79000/- and odd from the respondent No. 2 and agreed to repay it (Annex. H). In the face of serious controversy as to the amount due it is very difficult, in this interlocutory proceeding, either to work out the exact or approximate dues nor it is expedient to prejudge it.
7. The respondent No. 1 has also challenged the appellant's entitlement to the claim. It is not disputed that the appellant did not furnish performance Bank Guarantee for two lakhs, the completion certificate from respondent No. 2, the material reconciliation. In enclosing a list of incomplete items of work with the letter of revocation (Annex. I) it is argued that the appellant cannot enforce his alleged final bill and ask for payment.
8. It is true that the respondent caused a breach of contract by revocation of the irrevocable power of attorney. It is still debatable as to whether the appellant could legitimately claim to enjoy the authority to receive payment under the power of attorney. But what material and irreparable injury would flow therefrom? The appellant cannot recover his dues, if any, on account of the revocation of the Power of Attorney. But he has already sued for his dues. The Court normally does not grant injunction to protect the claim before adjudication. It is no substitute for attachment before judgment. Our attention is invited to a decision in Albert Judah v. Rampada . The single Bench decision of course supports the contention that even in a money suit injunction may be granted. In Swadeshi Industries Ltd. v. Administrator, Panihati Municipality , High Court granted an injunction in the particular circumstances of the case. The rate payer challenged the authority of the person dealing with the appeal against assessment and prayed for injunction restraining the Municipality from realising Municipal taxes on the basis of impugned assessment. High Court repelled the argument that injunction restraining realisation of taxes is not to be granted since Municipality is rich enough to repay the excess payment, if any and granted injunction. Injunction may therefore be granted even in a money claim also and we do not as we obviously cannot propose to lay down any proposition to the contrary.. But in the instant case, we do not propose to grant the discretionary relief since the appellant would not suffer any irreparable injury if it ultimately succeeds in its Suit, even though no interlocutory injunction is granted. We do not, therefore, interfere with the impugned order passed by the lower court.
9. We, however, make it clear that the rejection of this appeal must not be construed by the Court below as any expression of any opinion on our parts as to the merits of the case, nor the findings, if any, arrived at by the Court below, or by us herein can or shall take place of the findings at the trial and the Court below shall proceed to decide the suit being wholly uninfluenced by any such finding.
10. We accordingly dismiss the appeal, but make no order as to costs.
A.M. Bhattacharjee, J.
11. I agree.