NEPC MICON LIMITED Vs. SIEMENS LTD

JUDGEMENT

(1.) This is a classic text book example of how a debtor can evade payment of his dues by hiding in the lanes and bye-lanes of law.

(2.) The suit was filed by the respondent/plaintiff against the appellant/defendant in C.S.No.1019 of 1995 for recovery of Rs.96 lakhs and odd towards the supply of generators for wind mill. A petition was filed in Application No.1187 of 1996 to record the Memorandum of Compromise dated 29.11.95 entered into between the parties. In the said memorandum of compromise, it was stated that the appellant/defendant will pay a sum of Rs.76,02,166.54 and on receipt of the said amount, the suit will be withdrawn. The learned single Judge, by his order dated 10.4.96, refused to record the memorandum of compromise by stating that the memorandum of compromise cannot be taken in parts and the earlier part made into enforceable decree even while the later part remains part of the compromise memo signed by the parties. According to the learned single Judge, the memo of compromise shows that it is only a private arrangement by which the defendant was to make the payment and after such payment, the plaintiff has to withdraw the suit as having been settled out of Court and as the payment not having been made, the plaintiff is unwilling to withdraw the suit and therefore, there can be no decree in terms of the compromise and accordingly, he refused to record the said compromise. It is also stated that at the time when the suit was filed, a letter dated 16.9.94 sent by the appellant/defendant to the respondent/ plaintiff was also filed wherein the appellant/defendant has admitted that a sum of Rs.76 lakhs and odd is due and payable to the respondent/plaintiff. During the pendency of the suit, another application was filed in Application No.3465 of 1995 by the plaintiff/respondent to pass a decree for the admitted amount taking the admission made in the abovesaid letter dated 16.9.94 as well as the admission made in the compromise memo in terms of Order 12 Rule 6 C.P.C. The learned single Judge allowed the petition and passed the impugned order. The defendant, aggrieved by the said order, is now before us challenging the said order.

(3.) The learned Senior Counsel appearing for the appellant/defendant submits that the compromise memo having been rejected earlier by a learned single Judge, it ought not to have been taken into consideration when the order in Application No.3465 of 1995 was allowed and a decree was passed in terms of Order 12 Rule 6 C.P.C. on the basis of the admission made by him in the letter dated 16.9.94 and in the compromise memo dated 29.11.95. It is his submission that the order dated 10.4.96 passed in Application No.1187 of 1996 acts as a res judicata for the learned Judge to have passed a decree for the admitted amount. It is his further submission that he has a counter claim and in his written statement, he has stated that there are amounts due from the plaintiff and therefore, the learned single Judge ought to have taken into consideration the counter claim of the defendant/appellant under Order 20 Rule 19 C.P.C. and the learned single Judge not having given a set off for the counter claim, the impugned order is bad in law.