The main legal point established is that in cases of misrepresentation and contract termination, the party terminating the contract may be entitled to a refund of the advance payment and pendente lite interest, based on the terms of the contract and the extent of contract performance.

JUDGMENT :

V. Kameswar Rao, J.

This suit has been filed by the plaintiff for recovery of Rs.1,13,18,621/- along with pendente lite interest at the rate of 18% per annum.

2. The facts as noted from the plaint are, plaintiff is a Company duly registered and incorporated under the Indian Companies Act, 1956, having its registered office Gauhati, Assam. Defendant No.l is also a Company registered and incorporated under the Indian Companies Act, 1956, ('defendant Company', for short) having its registered office in New Delhi. The defendant No.2, Vivek Saxena, is the Group President (Marketing) of the defendant Company and has been made a party as he had given a written representation dated March 10, 2011 ('Proposal', for short) to the plaintiff Company on behalf of the defendant Company. However, I may note here that defendant No.2, Vivek Saxena was deleted from array of parties by this Court vide order dated May 7, 2013 while allowing I.A. 1505/2012.

3. It is the case of the plaintiff Company that Shri. Vivek Saxena had represented that the defendant Company has conglomerated with Diamond Aircraft Industries of Austria (M/s Diamond Aircraft', for short), which is dedicated in supplying the General Aviation Market with the safe, economical and amazing aircrafts. It is also the case of the plaintiff Company that as per clause 7 of Annexure-II of the Proposal, Shri. Vivek Saxena had categorically stated that the Aircraft offered to the plaintiff Company is accepted by Director General Civil Aviation ('DGCA', for short) for operation in India. It is the case of the plaintiff Company that it, considering the Proposal given by Shri. Vivek Saxena and with the intention to venture into Aviation business, entered into a Purchase Agreement dated March 10, 2011 ('Contract', for short) as well as placed a Purchase Order dated March 10, 2011 ('Purchase Order', for short) with two amendments therein, with the defendant Company for purchase of one DA42 NG Aircraft ('Aircraft', for short) for a total price of Rs.3,41,43,656/-. As per the terms and conditions of the Purchase Order, the plaintiff Company was required to pay 30% of the total price amount in advance within 10 days of signing of the Contract and balance 70% was to be paid at the time of delivery of the Aircraft against final invoice. That as per the condition No. 2 of Annexure-II to the Proposal, all the payments were to be made in favour of the defendant Company.

4. It is the case of the plaintiff Company that it paid 30% of the total price amount i.e. Rs.1,02,43,096/- on March 14, 2011 as per the terms and conditions of the Purchase Order, which was duly acknowledged by the defendants on March 16, 2011. It is averred that it came to the utter shock of the plaintiff Company when it was revealed during the preparedness meetings held on July 07, 2011 in the office of DGCA for the issue of Non-Scheduled Operations Permit ('NSOP', for short) to import Aircraft, that the said Aircraft with Austro-Engine, is not certified by DGCA. The aforesaid observation of DGCA was contrary to the Proposal given by the Shri Vivek Saxena, on behalf of the defendant Company, relating Aircraft certification/registration in India, wherein it had been specifically mentioned that the Aircraft offered to the plaintiff Company is duly accepted by DGCA for operation in India. It is the case of the plaintiff Company that it accordingly cancelled the order since the defendant Company had misrepresented the plaintiff Company and demanded the refund of the advance payment made to the defendant Company as per the terms of the Contract. The plaintiff Company in this regard wrote an e-mail dated July 17, 2011 to Shri Vivek Saxena, citing the reasons for canceling the project and demanded the refund of the advance payment. It is averred that despite cancellation of the Contract, the defendant Company on one pretext or the other avoided to refund the advance payment, as such the plaintiff Company again vide e-mail dated July