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Himachal Pradesh High Court · body

2005 DIGILAW 370 (HP)

YORK EXPORT LTD. v. GIAN CHAND

2005-10-03

SURJIT SINGH

body2005
JUDGEMENT Surjit Singh, J.: Plaintiff M/S York Export Ltd. a company incorporated under the Companies Act, has filed the present suit through its Manager Shri S.N. Chopra, against the defendants, pleading the following cause of action. 2. The defendants own property measuring 164 Bighas 7 Biswas, entered against Khata Khatauni No. 98/105, Khasra No. 245, in the Jamabandi for the year 1990-91, pertaining to Mauja Beerh Plassi, Pargana Plassi, Tehsil Nalagarh, District Solan. On 2.8.1995 the plaintiff entered into an agreement with the defendants for the purchase of the above described land, which shall hereinafter be referred to as the suit land, at the rate of Rs.50,000/- per Bigha. Rupees two lac were paid by way of advance on 2.8.1995 itself. The agreement was reduced into writing. The sale deed was to be got executed by 31.5.1996. Before that the plaintiff was to pay Rs.15,03,500/- more to the defendants. That amount was paid on 21.8.1995. The sale deed could not be got executed by the plaintiff by the stipulated date, i.e. 31.5.1996, because by then the permission to purchase the land was granted only to the extent of 125 Bighas area. It may-be stated that the plaintiff, being a non-agriculturist, could not have purchased any property in the State of Himachal Pradesh, unless permission was granted, under Section 118 of the H.P. Tenancy & Land Reforms Act. The agreement was, therefore, renewed on 31.5.1997. The renewed agreement was also reduced into writing. In terms of this renewed agreement, the plaintiff was to pay Rupees eighteen lac more, which it did pay on 4 /5th of June, 1996. It was agreed that the sale deed would be got executed by 31.12.1996, if by then the permission by the aforesaid date, the plaintiff was to pay another sum of Rupees seven lac and the sale deed in that situation could be executed upto 31.5.1997. It was further agreed that in case permission was not granted even upto 31.5.1997, the plaintiff would pay the balance of agreed consideration in entirety. The plaintiff could not get the permission to purchase the whole of the suit property even by 31.12.1996. It succeeded only in getting permission to the extent of 145 Bighas in all. So the plaintiff, through its Manager Shri S.N. Chopra, approached the defendants for payment of Rupees seven lac, as per one of the terms of the renewed agreement. The plaintiff could not get the permission to purchase the whole of the suit property even by 31.12.1996. It succeeded only in getting permission to the extent of 145 Bighas in all. So the plaintiff, through its Manager Shri S.N. Chopra, approached the defendants for payment of Rupees seven lac, as per one of the terms of the renewed agreement. Said Shri S.N. Chopra, accompanied by some other representation/ employees of the plaintiff, visited the defendants on 6.6.1997 at their place in Ropar and offered to give them six drafts of different amounts, aggregate whereof was Rupees seven lac. The defendants, however, refused to accept the said drafts. The plaintiff then wrote a letter dated 8.1.1996 to the defendants, informing that the permission for purchase of the entire suit land had yet not been accorded and that because of that time for execution of the sale deed automatically stood extended upto 31.5.1997. It was also stated in the said communication that the plaintiff was prepared to pay Rupees seven lac as per the renewed agreement. The defendants respondent through letter dated 16.1.1997 and alleged that because of the plaintiffs failure to get the deed executed by 31.12.1996 and its failure to pay the amount of Rupees seven lac by that date, the original agreement dated 2.8.1995 and the renewed agreement dated 31.5.1996 both stood revoked. The plaintiff then wrote to the defendants through letter dated 16.1.1997 was not correct. The defendants then sent a letter dated 29.3.1997 through an Advocate denying that the time stood extended upto 31.5.1997. The plaintiff took every possible step with all sincerity to obtain the permission for the purchase of the entire suit land measuring 164 Bighas 7 Biswas, but the Government offered to grant permission only to the extent of 145 Bighas area. Because of the rigid and tough stand of the Government, the agreement, in question, has been frustrated and so it (the plaintiff) is entitled to the refund of the money amounting to Rs.35,03,500/- which it has paid to the defendants, together with interest at the rate of 18%, the amount whereof has been worked out at Rs.8,33,000/-. Hence this suit for recovery of Rs.43,35,000/-. 3. The defendants have filed a common written statement raising a number of preliminary objections besides contesting the claim on merits. The suit is alleged to have not been instituted by a proper person. Hence this suit for recovery of Rs.43,35,000/-. 3. The defendants have filed a common written statement raising a number of preliminary objections besides contesting the claim on merits. The suit is alleged to have not been instituted by a proper person. The plaintiff is alleged to be stopped by the acts and conduct of its representative to institute the suit. It is also alleged that the plaintiff does not have any cause of action. The plaint is alleged to be not legally any properly verified. 4. On merits it is not denied that there had been an agreement between the parties, as alleged by the plaintiff. Renewal of the agreement on 31.5.1996 is also not denied. It is also admitted that by June, 1996 the plaintiff had paid to the defendants a sum of Rs.35,03,500/-. However, it is denied that when the plaintiff failed to get the permission by 31.12.1996, a sum of Rupees seven lac was offered to the defendants through Shri S.N. Chopra, a Manager of the plaintiff, as alleged in the plaint. It is alleged that the aforesaid amount of Rupees seven lac was required to be paid on 31.12.1996. It is also alleged that the plaintiff has not disclosed when and to whom the application for permission to purchase the suit land had been made. It is pleaded that the plaintiff failed to pursue the matter for obtaining permission from the Government, for purchase of the suit land, effectively, and, therefore, itself is to be blamed for non-grant of permission. Further, it is alleged that the mere non-grant of permission cannot be said to have frustrated or having rendered impossible the perform the agreement to sell. It is alleged that as per the terms and conditions of the renewed agreement, the plaintiff was supposed to have paid the entire remaining amount of the sale consideration by 31.5.1997, but it did not offer the said amount of money and, therefore, it is guilty of breach of the agreement and hence estopped from pleading that the agreement has frustrated or become impossible to perform and to seek refund of the part of the consideration already paid by it. Plaintiffs averment that it required the entire land because it wanted to set up an industry, which could not have been set up on a lesser extent of land, is also denied. Plaintiffs averment that it required the entire land because it wanted to set up an industry, which could not have been set up on a lesser extent of land, is also denied. It is also alleged that the plaintiff took no steps for seeking permission from the Government for the purchase of entire land, after the Government granted permission to the extent of 145 Bighas only. Also, it is alleged that on account of the plaintiffs not paying the balance consideration by the stipulated date, the defendants suffered huge losses in their business and the quantum of such losses is much higher than the suit amount or the money paid by the plaintiff to the defendants and that after the adjustment of the losses, sustained by the defendants, nothing remains to be paid to the plaintiff. 5. The plaintiff then filed a rejoinder, reiterating its case and denying the allegations made in the written statement: 6. Following issues were framed on the pleadings of the parties, vide Zimni order dated 10.11.1998:- 1. Whether the agreement for the sale of land between the parties stands frustrated and has become impossible for-performance, as alleged, if so, its effect? O.P.P. 2. Whether the defendants have committed breach of the terms of the agreement, as alleged, if so, its effect? O.P.P. 3. Whether the plaintiff is entitled to recover any amount from the defendants, if so, to what extent? O.P.P. 4. Whether the plaintiff is entitled to interest on the amount found payable to it, if so, at what rate? O.P.P. 5. Whether the suit has been instituted by a duly authorized and competent person for and on behalf of the plaintiff? O.P.P. 6. Whether the plaintiff is estopped from filing the present writ on account of its acts, deeds, conduct and acquiescence, as alleged? O.P.P. 7. Whether the defendants are entitled to equitable set off of the amount, as claimed? O.P.D. 8. Whether the plaint lacks in material particulars, as alleged, if so, its effect? O.P.D. 9. Relief. 7. Parties have led evidence to prove their respective pleas and to disprove the allegations of the opposite side. I have heard the learned counsel for the plaintiff as also the learned counsel for the defendants. My findings on the aforesaid issues are as under. Issue No.1 8. Some of the facts are not disputed. O.P.D. 9. Relief. 7. Parties have led evidence to prove their respective pleas and to disprove the allegations of the opposite side. I have heard the learned counsel for the plaintiff as also the learned counsel for the defendants. My findings on the aforesaid issues are as under. Issue No.1 8. Some of the facts are not disputed. The same are (I) there had been an agreement between the parties for the sale of suit land for a consideration of Rs.85,17,500/- and the last date for execution of the sale deed was 31.5.1996 (ii) a sum of Rs.17,03,500/- had been paid by way of advance money by the plaintiff to the defendants (iii) sale deed could not be executed on 31.5.1996 because the plaintiff, being a non-agriculturist, could not have purchased the land without obtaining permission from the Government, under Section 118 of the H.P. Tenancy & Land Reforms Act and such permission was not there by the aforesaid date; (iv) the agreement for sale of the land had been renewed and the last date for execution of sale deed was extended upto 31.12.1996, in case the permission under the aforesaid provision of law was granted by that date and if such permission was not granted even by that date, the plaintiff was to pay another sum of Rupees seven lac and in that situation the date for the execution of the sale deed was to stand extended upto 31.12.1997; (v) in case the permission for the execution of the sale deed was not granted even by 31.5.1997, the plaintiff was to pay the remaining amount of the sale consideration to the defendants, but no date for such payment was mentioned in the said renewed agreement. 9. The disputed facts are (I) whether the plaintiff had made sincere efforts for obtaining permission from the Government for the purchase of the land (ii) whether the plaintiff had offered to pay Rupees seven lac to the defendants when the permission was not granted upto 31.12.1996, but the defendants refused to accept the said amount of money; (iii) whether on account of the non-grant of permission by the Government for the purchase of the entire land, agreed to be sold, i.e. land measuring 164 Bighas 7 Biswas, but the grant of the permission only to the extent of 145 Bighas area, the agreement stands frustrated. 10. 10. Plaintiff claim for refund of the advance money is based on the plea that an account of non-grant of permission by the Government for the purchase of the entire area of the land, agreed to be sold, i.e. 164 Bighas 7 Biswas, the agreement to sell stands frustrated. The defendants controvert this plea. According to them, this is a case of breach of agreement to sell on the part of the plaintiff and, therefore, they are not entitled to the refund of the advance money. 11. Admittedly, the plaintiff is not an agriculturist within the State of Himachal Pradesh and, therefore, it could not have purchased the suit land, unless permission of the Government, under Section 118 of the H.P. Tenancy & Land Reforms Act and the Rules framed there under, had been granted. The plaintiff has alleged and led evidence to establish that despite best and sincere efforts having been made by it, permission was not accorded by the Government for the purchase of the entire land, agreed to be sold, but that permission was granted for purchase of a part of the land only to the extent of 145 Bighas, which was not sufficient for the establishment of the craft paper mill, which it wanted to set up on the suit land. The defendants deny that sincere efforts were made by the plaintiff for obtaining permission from the Government. According to them, the plea of non-grant of the permission by the Government is nothing but a ruse to avoid the agreement. It is also their plea that even 145 Bighas of land, for which permission was granted, was enough for the setting up of the mill and this fact was borne out from the plaintiffs own evidence. 12. During the course of hearing of the matter, the learned counsel for the defendants argued that the non-grant of the permission by the Government for the purchase of the land is not an event frustrating the agreement or making its performance impossible. 13. The plaintiff has proved on record, by examining PW-1 Shri J.R. Chauhan from the office of Director of Industries, PW-2 Mrs. 13. The plaintiff has proved on record, by examining PW-1 Shri J.R. Chauhan from the office of Director of Industries, PW-2 Mrs. Seema Gupta from the office of Labour Commissioner, Shimla and PW-3 Shri Bansi Lal from the office of Deputy Commissioner, Solan, certain documents, which substantiate the plea of the plaintiff that sincere efforts were made by it for obtaining permission for the purchase of the entire area of land, in question, but the permission was granted only in respect of 145 Bighas area. Ext. PW-1/E is a communication, which was addressed to the plaintiff by the Director of Industries, Himachal Pradesh. The letter is dated 31.10.1995. Its reading shows that it was written to the plaintiff in response to some proposal submitted by it for setting up an industrial unit at Nalagarh for manufacture of craft paper. The plaintiff was asked to get the site inspected from the State Appraisal Committee, to be deputed by the Director of Industries. The plaintiff respondent to the aforesaid letter vide letter Ext. PW-1/A, dated 28.11.1995 and requested for intimation of the date of inspection. Some more correspondence was exchanged between the plaintiff and the said Director regarding inspection of the site and ultimately, vide communication Ext. PW-1/B, dated 16.12.1995, approval of the project of the plaintiff was conveyed subject to fulfillment of certain conditions including Inspection of site. The plaintiff then applied for permission to purchase the suit land to the Deputy Commissioner, vide application dated 4.6.1996, copy Ext. PW-3/A. Application on the prescribed form, copy Ext. PW-3/S, duly filed in, as was also submitted along-with the said application. Other papers like affidavits of the prospective vendors, i.e. the defendants, and the vendee, i.e. the plaintiff, were also submitted along-with the application. The Deputy Commissioner asked the plaintiff to submit essentiality certificate to be obtained from the Director of Industries. The plaintiff, therefore, wrote a letter dated 20.9.1996, Ext. PW-1/D, to the Director of Industries for issuance of essentiality certificate. It submitted along-with that application copy of the agreement for the sale of the land, in question, copy of the Jamabandi and the land utilization map. The certificate was issued only for 125 Bighas area on 18.11.1996. The copy of the certificate is Ext. PW-1/G. The plaintiff then approached the Director of Industries again, vide letter dated 7.12.1996; copy Ext. It submitted along-with that application copy of the agreement for the sale of the land, in question, copy of the Jamabandi and the land utilization map. The certificate was issued only for 125 Bighas area on 18.11.1996. The copy of the certificate is Ext. PW-1/G. The plaintiff then approached the Director of Industries again, vide letter dated 7.12.1996; copy Ext. PW-1/F, for the issuance of the essentiality certificate in respect of the entire area measuring 164 Bighas 7 Biswas. The Director, vide certificate dated 12.12.1996, Ext. PW-1/H, gave the essentiality certificate in respect of 20 Bighas additional area and not for the entire area of 164 Bighas 7 Biswas. The plaintiff submitted the essentially certificate to the Deputy Commissioner, vide letter Ext. PW-3/D. The Deputy Commissioner conveyed to the plaintiff, vide letter dated 21.1.1997, copy Ext. PW-3/H, to produce the essentiality certificate in respect of the entire area measuring 164 Bighas 7 Biswas before permission, under Section 118 of the H.P. Tenancy & Land Reforms Act, could be granted. The plaintiff submitted to the Deputy Commissioner, vide letter Ext. PW-3/A that it had not been able to obtain the certificate for the entire area though for setting up the industry, the whole of the land was essentially required. 14. In view of the above discussed documentary evidence, there cannot be any hitch in accepting the plea of the plaintiff that despite best efforts, having been put in by it, permission of the Government for the purchase of the entire 164 Bighas 7 Biswas area could not obtained. 15. The learned counsel for the defendants argued that the plaintiff took no steps to seek essentiality certificate in respect of the remaining 19 Bighas land was issued by the Director of Industries and so it cannot set up the plea of frustration. The argument has been noticed only to be rejected. When the plaintiff had applied twice to the Director of Industries for grant of essentiality certificate for the whole of the land but the latter initially issued the certificate for 125 Bighas of land and then, on being again approached by the plaintiff, added 20 Bighas to the area in the essentiality certificate, it can legitimately be presumed that the plaintiffs representative might have got tired of approaching the Director of Industries again and again for the same very purpose. It is only too well known how red-tapism prevalent in our offices, particularly the one which prevailed at the relevant time, takes its toll. 16. It was then argued on behalf of the defendants that the plaintiff could have agreed to the grant of permission by the State Government, under Section 118 of the Tenancy & Land Reforms Act in respect of 145 Bighas offered, by the Deputy Commissioner and after obtaining the permission, could have got the sale executed in respect of that area. This argument is also devoid of much force. The agreement between the parties was for the purchase of 164 Bighas 7 Biswas of land, which is a compact plot of land, bearing one Khasra number. The plaintiff could not have anticipated that if it had obtained the permission for purchases of only 145 Bighas of land out of one compact number, the defendants would agree for the same and would not insist for the payment of the entire agreed sale consideration, but would agree to its reduction proportionate to the reduction in the area of the land. 17. As a matter of fact, the defendants had been intimated by the plaintiff, through communication dated 18.3.1997 Ext. PW-5/U, that they could obtain the permission for purchase of only 145 Bighas of area and that they were still pursuing the matter of permission of the purchase of the entire area of the land, agreed to be sold, and requested them to bear with it (the plaintiff). The defendants responded to the said communication, through an Advocate Shri Ram Swaroop Sharma, vide letter dated 29.3.1997 Ext. PW-5/B. In the said reply it was specifically mentioned that there was no stipulation in the agreement that there would be wait for permission of the Government for the purchase, but on the contrary there was specific agreement that the sale deed would be got registered within the stipulated period ant the plaintiff would make the payment as per agreement. Not only this, the defendants, specifically stated in para 2 of the said reply that no correspondence be made with them which might be extraneous to or not in consonance with the terms and conditions of the agreement. Not only this, the defendants, specifically stated in para 2 of the said reply that no correspondence be made with them which might be extraneous to or not in consonance with the terms and conditions of the agreement. That means the impression, which the defendants conveyed to the plaintiff through this reply, was that no variation or change was acceptable to them in the original agreement and that the sale had to be in respect of the entire land and they were to be paid the whole of the sale consideration, as per the terms and conditions of the agreement. In the face of this response theirs, it does not lie in the mouth of the defendants to say that if the permission for the purchase of the entire land had not been forthcoming, the plaintiff should have got the sale deed executed in respect of 145 Bighas area for which permission had been granted. 18. In any case, the argument is not legally tenable. A similar point was raised in K. Narendra vs. Riviera Apartments (P) Ltd. (1999) 5 SCC 77]. There the agreement was for sale of certain property, held by the prospective vendor as a lessee. The area, agreed to be sold, was in excess of the ceiling fixed by the Urban Land (Ceiling and Regulation) Act, 1976. Also a portion of the agreed land had been acquired by the Government. Suit for specific performance of the contract was filed by the prospective vendee. An argument was raised that the vendee was prepared to buy the land after exclusion of the area, which was in excess of the ceiling prescribed by the Urban Land (Ceiling and Regulation) Act, 1976 as also the land, which had been acquired by the Government, at the same price as had been agreed to be paid. The Honble Supreme Court, rejecting the contention, held that in its view the transfer of lesser area was not permissible. The Honble Supreme Court, rejecting the contention, held that in its view the transfer of lesser area was not permissible. It was observed that the case of non-performance, except with variation is statutorily covered by Section 18 of the Specific Relief Act, 1963 and that when the defendant sets up a plea of variation, the plaintiff may have the contract specifically performed subject to the variation to set up, only in case of fraud, mistake of feet or mis-representation or where the contract has failed to produce a certain Sega result, which the contract was intended to do or where the parties have subsequent to the execution of the contract, varied its terms. 19. Now, what remains to be determined is whether, on account of non-grant of permission in favour of the plaintiff for the purchase of the suit land, the agreement stands frustrated The point is substantiality covered by the judgment of the Honble Supreme Court in K. Narendras case (supra). In the case a builder company (hereinafter referred to as plaintiff) entered into an agreement with a person, who held certain property of the Government of India, under a lease (this person will hereinafter be referred to as the defendant) for the purchase of the said leased property. The plaintiff paid certain amount of money by way of advance to the defendant. It was agreed that the plaintiff would raise multi-storeyed structure on the property, after obtaining permission from the concerned departments and authorities. In lieu of a part of consideration, some built-up portion was agreed to be given to the defendant out of the multi-storeyed structures, to be raised by the plaintiff on the land. The area of the land was in excess of the Urban Land (Ceiling & Regulation) Act, applicable in the area. Some portion of the property had also been acquired after the agreement. The Government of India also raised objection and threatened to cancel the lease in favour of the defendant on the plea that as per the terms of the lease, the property could not be alienated by the defendant. The plaintiff applied for permission to the concerned authorities but the same were refused. The plaintiff also applied for grant of exemption, under Section 12 of the Urban Land (Ceiling & Regulation) Act, 1976. That was also not granted. Later on, exemption was applied for in the name of the defendant. The plaintiff applied for permission to the concerned authorities but the same were refused. The plaintiff also applied for grant of exemption, under Section 12 of the Urban Land (Ceiling & Regulation) Act, 1976. That was also not granted. Later on, exemption was applied for in the name of the defendant. In that application it was stand that since the sale was not possible in favour of the plaintiff, the defendant himself could be granted such exemption. The exemption was granted in his favour. It appears that after that the plaintiff filed a suit for specific performance of the agreement and in the alternative for damages. The Honble Supreme Court, while finally deciding the matter, observed, vide para 36 at page 94, that on account of non-grant of exemption under the Urban Land (Ceiling & Regulation) Act and refusal to grant permission to construct multi-storeyed complex on the land, in question, the agreement can be said to have stood frustrated by reference to Section 56 of the Contract Act at that point of time, when such exemption was not granted and permission was refused and that subsequent events, like repeal of the Urban Land (Ceiling & Regulation) Act or the grant of permission in favour of the defendant could not be pressed into service for reviving the frustrated contract so as to seek the specific performance by a decree of the Court. 20. Therefore, it is held that the agreement, in question, stood frustrated, when the plaintiff failed in its efforts to get permission from the Government for the purchase of the land, which was subject matter of the agreement. 21. Once it is held that the defendant stood frustrated, on account of the efforts made by the plaintiff for obtaining permission having not materialized, there hardly remains any point to go into the question whether the plaintiff sincerely offered to pay Rupees seven lac to the defendants on 6.1.1997, as alleged by it, or it just created evidence to this effect to show its bona fides, as alleged by the defendants. 22. 22. The defendants plea that the plaintiff purposely and deliberately did not seek the permission, is liable to be rejected firstly, in view of the finding here-in-above that it made sincere and best efforts to seek such permission and secondly, having paid a substantial part of the sale consideration of Rs.35,03,0007- out of the total consideration of Rs.85,15,500/- the plaintiff in all probabilities could not have done so. The fact that it go the initial agreement renewed the paid Rs.18 lacs at the time of such renewal shows that the plaintiff was very much interested in purchasing the land, in question, but due to the frustration of the agreement caused by the non-grant of permission by the Government, it could not get the land transferred. 23. As a result of the above discussion and findings, the issue is answered in favour of the plaintiff and against the defendants. Issue No.2. 24. As a matter of fact, the claim of the plaintiff is based on the plea of frustration of contract and not on the plea that the defendants have caused the breach of the agreement though allegations to this effect are there. Therefore, I am of the view that the issue ought not to have been framed. Consequently the issue is struck. Issue No.4. 25. The plaintiff has claimed interest at the rate of 18% on the advance paid by it to the defendants from the dates on which payments in part of the aforesaid amount were made. The interest has been worked out in the plaint upto 15.5.1997. The agreement was executed between the parties on 2.8.1995. The same was renewed on 31.5.1996 and the period for execution of the sale deed was extended upto 31.5.1997. The agreement got frustrated, on account of non-grant of permission by the Government, under Section 118 of the H.P. Tenancy & Land Reforms Act, some-time in March, 1997. Admittedly, the defendants are not in any way responsible for the frustration of the agreement and, therefore, they cannot be said to be liable to pay interest at as high a rate at which it is calmed by the plaintiff, i.e. 18% per annum. However, having utilized the money of the plaintiff and according to their own plea, having used it for the business purpose, in my considered view, they are liable to pay interest at a reasonable rate. However, having utilized the money of the plaintiff and according to their own plea, having used it for the business purpose, in my considered view, they are liable to pay interest at a reasonable rate. In my view 9% per annum should be reasonable rate. Thus, the amount of interest, payable by the defendants, upto the date of institution of the suit, comes to Rs.4,16,500/-. The issue is answered accordingly. Issue No.3. 26. Admittedly the plaintiff has paid Rs.35,3,500/- to the defendants. The defendants plea is that the plaintiff was supposed to have paid Rupees seven lac on or about 31.12.1996 and the remaining entire sale consideration immediately after 31.5.1997, even if the permission was not granted, but it did not pay these amounts due to which the defendants could not fulfil certain promises, made by them in connection with their business as liquor contractors and incurred huge losses. They seek the adjustment of such losses against the money advanced by the plaintiff. The plea is untenable. This is not a case of breach of contract on the part of the plaintiff. Instead this is a case of frustration of contract Hence the defendants cannot claim the damages, which they have sought by way of adjustment. In any case, the alleged damages are too remote. Consequently it is held that that the plaintiff is entitled to recover the money advanced by it. The issue is answered accordingly. Issue No.5. 27. The plaintiff is a Company incorporated under the Companies Act, per averment in para 1 of the plaint. Though the averments is controverted by the defendants in the written statement, that in my view is of little significance. The agreement Ext. PW-5/D between the parties, the execution whereof is admitted by both the parties, clearly recites that the plaintiff is a private limited company. The plaintiff company passed a resolution, copy Ext. PW-5/A, authorizing its Manager Shri S.N. Chopra to file the suit and to sign all papers in connection with the filing of the suit. This authorization is proved by PW-5 Shri S.N. Chopra. The present suit is filed in the name of the plaintiff company through Shri S.N. Chopra, Manger, authorized vide resolution, copy Ext. PW-5/A. So, it is held that the suit is properly instituted. The issue is answered accordingly. Issue No.6 & 7 28. This authorization is proved by PW-5 Shri S.N. Chopra. The present suit is filed in the name of the plaintiff company through Shri S.N. Chopra, Manger, authorized vide resolution, copy Ext. PW-5/A. So, it is held that the suit is properly instituted. The issue is answered accordingly. Issue No.6 & 7 28. In view of the discussion under and finding on issue No.1, both these issues are answered against the defendants. Issue No. 8. 29. After the framing of this issue, the plaintiff amended the plaint so as to supply al the material facts and particulars. Hence, the issue has become redundant and, is, there fore, ordered to be struck off. Relief. 30. In view of the above findings, a decree for a sum of Rs.39,20,000/-(Rupees thirty-nine lacs and twenty thousand) only is passed in favour of the plaintiff and against all the defendants with proportionate costs and interest at the rate of 6% per annum from the date of institution of the suit to the date of payment of the aforesaid amount of money Each of the defendants shall be liable to pay apart of the decretal amount with proportionate costs and future interest, to the extent of the amount received by him / her. Decree sheet by drawn accordingly.