NTPC LIMITED Vs. SECTRUM POWER GENERATION COMPANY LIMITED

JUDGEMENT

(1.) .This order will dispose of the application of the plaintiff, under Order 23 Rule 1(3)(b) read with Section 151 of the Code of Civil Procedure, 1908 (for short "CPC").

(2.) . Facts necessary for the disposal of this application in brief are: that on 23.7.1992, plaintiff entered into Memorandum of Understanding (MOD) with defendant No.3 (STUSA), for setting up a 208 M.W. Gas based power project, and in pursuant thereto a company by the name of Spectrum Power Generation Ltd. (SPGL)-defendant No. 1 was incorporated; that on 29.6.1993 a Promoters Agreement was entered into between the plaintiff (NTPC), the defendant No. 2-Jaya Food Industries Pvt. Ltd. (for short, "JFIL') and defendant No. 3 (STUSA). The disputes arose between NTPC, SPGL and JFIL and their Directors, as a result of which plaintiff (NTPC) filed the above noted suit, seeking a decree for specific performance of the Promoters Agreement and for other mandatory injunctions and declarations for enforcing their rights under this agreement against other promoters, their Directors, the company and several other, who are also im- pleaded in the suit as defendants. The plaintiff (NTPC) also moved application for interim relief and for appointment of receiver of defendant No. 1 company (SPGL), to ensure compliance of the said agreement, and the same was dismissed on 5.11.1997. Plaintiff's appeal (FAO No. 267/97), was also dismissed on 7.7.2000. The plaintiff, thereafter, filed Special Leave Petition (SLP No. 14864/2000), before Supreme Court. While SLP was pending, on 9.4.2001 the plaintiff entered into Compromise and settled its differences with defendant Nos. 1 (SPGL) and defendant No. 2 (JFIL). However, there was no settlement with defendant No. 3 (STUSA) and the defendants 14 to 18. The Compromise Agreement dated 9.4.2001 was taken on record by the Supreme Court and the SLP was disposed Of, reserving rights of the affected parties to challenge the validity of the agreement, at the appropriate forum. As per the Compromise Agreement SPGL agreed to pay Rs. 41.57 crores along with interest from 1.1.1999 to Plaintiff (NTPC), (which comes to about Rs. 52 crores) in 12 instalments. Mr. Kishan Rao, on behalf of SPGL and JFIL as well as on his individual capacity agreed and furnished bank guarantees in terms of the agreement.

(3.) . By this application plaintiff is seeking to withdraw the suit against all defendants, with liberty to institute a fresh suit, in the eventuality of breach of any of the terms of the Compromise Agreement dated 9th April, 2001 or the Undertakings given by non-contesting defendants, before Supreme Court or the Compromise Agreement being declared illegal, null or void. The defendants have chosen not to file any reply. I have heard the learned counsel for the parties and have been taken through the record.