Simbhaoli Sugar Mills Limited v. Chemical Systems Tecfinologies (India) Pvt Ltd

1. Issue notice. Sh. Udit Gupta, Advocate accepts notice on behalfofthe respondent. With consent oflearned counsel for the parties, the matter was heard linally.

2. This is the defendant's appeal challenging the judgment and decree dated 01.02.2013 by which the plaintiffs (respondent here) suit for Rs. 1,80,81,564/- was decreed in part to the extent ofRs. 1,28,i[6],407/- on an application made under Order Xli 2013:DHC:8590-DB Rule 6 CPC.

3. The appellant contends through its senior counsel that the impugned judgment and order has overlooked certain material facts and circumstances, especially the letter dated 21.05.2008 and 22.05.2008 by the plaintiff in which the latter had not protested to the allegations made in the appellant's letter dated 17.05.2009 as to the quality of the equipment. It was contended that ifthe plaintiffs case really was that the machinery and equipment did not contain any defects,that was the appropriate occasion to say so.

4. Learned counsel for the respondent had contended to the contrary and relied upon the findings recorded by the learned Single Judge.

5. This Court does not propose to delve deep into the merits ofthe appeal since during the course of hearing, learned counsel for the parties sought instructions, and reported that the impugned order may be set aside and parties relegated to agitate their respective points ofview in the suit which may be heard on merits. It was agreed that the appellant, having regard to the peculiar circumstances of the case but without in any manner admitting its liability would be willing to deposit the sum of Rs. 50 lakhs within four weeks from today, before the Court. The parties further agree that the following issues would form the basis oftrial in the suit and the counter-claim to be decided by the learned Single.ludge:

(i) Whether the suit is bad for non-joinder ofnecessary parties. OPD;

(ii) Whether the goods supplied by the plaintiff were to ordered specification and accepted bythedefendant? OPP;

(iii) Whether the goods supplied by the plaintiffwere defective entitling the defendant to reject them. OPD;

(iv) Whether the plaintiff is entitled for suit amount/reliefor any other amount/relief? If so, at whatrateof interest? OPP;

(v) Whether the defendant/counter-claimant is entitled for counter-claim or any other claim; ifso, atwhat rate of interest? OPD;

(vi) Relief

In view of the above agreement arrived at by the parties which was indicated by the learned senior counsel who are duly instructed in that regard, the Court hereby sets aside the impugned judgment and order. The parties further agree that a Local Commissioner should be appointed to record evidence. Ms. Manmeet Arora, Advocate (Mob. No. 9811333871) is accordingly appointed as Local Commissioner to record the oral evidence, ofthe parties, and file her report in Court. The Local Commissioner's fee is fixed at Rs. 1,00,000/- which is to be borne equally by the parties. The parties are entitled to lead evidence on the issues indicated above in this order. The parties shall file their respective list of witnesses within six weeks from today. The parties shall appear before the Local Commissioner on 23.05.2013 after duly intimating her about the present order. The Commissioner shall attempt to file report within four months from the date of the first hearing. It is open to the parties to seek liberty to file additional documents, if any, through appropriate application. List before the Single Judge, for directions, on 25.11.2013. The appeal and pending application are disposed ofin the above terms. No costs. Order dasti. I ^

S. RAVINDRA BHAT, J

II WAZIRI, J MAY 10,2013 'ajk'