VIRENDRA BHATNAGAR SANSTHAN Vs. AAR ESS CO

JUDGEMENT

(1.) . This application on behalf of the plaintiffs under Section 151 of the Code of Civil Procedure, 1908 seeks the recalling of the Order dated 1st September, 2000 and revival of the present suit.

(2.) For ready reference, the Order dated 1st September, 2000 reads as follows:- "01.09.2000. Present: Mr. Ravinder Sethi, Sr. Advocate with Mr. Pramod Gupta for the plaintiff. Mr. J.P. Gupta for the defendants. Suit No.1570/99 Counsel for the plaintiff craves leave of this court to withdraw the suit on the strength of the affidavit Annexure `A' and the receipts and possession letter, dated 7.12.1999 (Page Nos.36 to 41) of the documents file. The counsel for the defendant does not deny the signature on the receipts and the possession letter. Leave granted. The suit is dismissed as withdrawn." This order was passed on an application under Order XXIII Rule 1 CPC filed by the plaintiff.

(3.) The plaintiff has filed the present suit seeking a recovery of Rs.81 lakhs against the defendants on account of the deficiencies committed by them as civil contractors in the work done at Virender Gram, Gurgaon. The claim raised in the plaint arises on account of the construction of the school building being constructed by the defendant No.1 Company and defendant No.2 its proprietor. It was averred that due to a settlement between the parties and in order to buy peace the plaintiff had agreed to pay Rs.25 lacs to the defendant. After receipt without protest of the sum of Rs.25 lacs in full and final settlement of its claim on 1.9.2000 the defendants resiled from such settlement and filed his own civil suit No. 147/2003 based on the same transactions as was the subject matter of CS(OS) No.1570/99 filed by the plaintiff. Since the defendant after the receipt of the sum of Rs.25 lacs as full and final settlement of his claims has attempted to back out of the settlement, this application was filed for revival of suit No. 1570/99. The order of 1st September, 2000 clearly refers to receipts and possession letter dated 7th December, 1999 and recorded the statement of the defendant's counsel who did not deny the signature on the receipt and possession letter dated 7th December, 1999.