9911796707
TMI Blog2004 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of India the price of the two helicopters supplied by it without setting apart a sum of ₹ 28.8 crores being commission to the petitioner at the rate of 16% of the price. Prayers have also been made for injuncting the Government of India from making full payment of the two helicopters to the respondent and also from restraining the respondent from delivering the helicopters to the Government of India. It is also prayed that a Receiver be appointed to collect on behalf of the petitioner the aforesaid commission from the Government of India which is claimed by the petitioner for services rendered to the respondent in regard to the supply of helicopters to the Government of India. 2. The facts relevant for the disposal of this pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. The petitioner alleged that the said contract was a result of the petitioner's efforts at the instance of M/s. Russian Technologies which subsequently merged with the respondent and as such the respondent cannot deny commission to the petitioner. The manufacturers M/s. Kazan Helicopters Ltd., informed the petitioner that they had issued instructions to the respondent to release commission due to the petitioner but in spite of it, vide communication dated 23rd December, 2002, the respondent has disputed that commission is due to the petitioner from them. In the Agency Agreement dated 14th April, 2000, there was an Arbitration Clause, according to which the disputes between the principal and agent were to be referred to the Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 16 helicopters and not four helicopters as mentioned in the Agreement dated 14th April, 2000 between the petitioner and M/s. Russian Technologies. It is also pleaded that the petitioner has taken no steps to initiate arbitration which has to take place in Russia under the laws of Russia and as such the present petition is not maintainable. It is further pleaded that the respondent being a State owned Company doing business with various Governments around the world has large assets in Russia. It is a profit making Company engaged in the business of exporting armaments and military equipments and as such the apprehension of the petitioner that in case interim order is not passed, it would be left with no remedy is without any basis. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being supplied by the respondent to Ministry of defense are different although the manufacturer thereof is the same. It is disputed that the petitioner has any right to claim any commission from the respondent and as such entitled to interim relief as prayed. The petitioner has filed a rejoinder to the reply controverting the averments made therein. 4. I have heard learned counsel for petitioner and learned counsel for respondent. I have gone through the records. 5. In this petition, several questions in regard to the privity of contract between the parties and responsibility of respondent to discharge the liabilities of M/s. Russian Technologies arise. Firstly, it does not appear that the helicopters being supplied by the respondent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice of the helicopters supplied by it to the Ministry of defense appears to be pre-mature also for the reason that an agent becomes entitled to his commission only after the completion of the contract and receipt of the price by the supplier and not prior thereto. 6. Last but not the least, the petitioner's prayer, under Section 9 of the Act, has to be declined on a further ground that the respondent is admittedly a State owned undertaking of the Government of Russia having sufficient assets as well as operations. The prayer made by the petitioner is pari materia similar to a prayer for attachment before judgment as envisaged in Order 38 Rule 5 of the CPC which is granted only when the Court is satisfied that a defendant with intent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is entitled to any commission or not from the respondent on account of the supply of the helicopters by respondent to the Ministry of defense. The letter written by the manufacturer of helicopters to respondent regarding payment of commission to petitioner is not binding on the respondent Company. Therefore, there are no good grounds to pass restraint orders against the respondent from receiving and Government of India from releasing the payments and thereby jeopardises the deal regarding supply of the helicopters which appear to be urgently required. The respondent appears to be not willing to supply the same without full payment from Government of India. 9. Accordingly, this Court finds that the petition filed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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