HUMBOLDT WEDAG GMBH Vs. DALMIA CEMENT VENTURES LTD

JUDGEMENT

(1.) This is the petition under Section 9 of the Arbitration and Conciliation Act, 1996 whereby the petitioner seeks an injunction to restrain the respondent No. 1 (hereinafter "the respondent") from invoking the Bank Guarantee for Euro 2,835,000 and which Bank Guarantee was given to secure the advance payment given by the respondent to the petitioner. The petitioner as the contractor and the respondent as an owner entered into a contract by virtue of the Letter of Intents dated 20.2.2008 whereby the petitioner was to design, engineer, manufacture, supply and sell the cement plants to the respondents for its sites at Belgaum; Karnataka, Gulbarga-I; Karnataka, Gulbarga-II; Karnataka and Meghalaya. The subject contract is dated 17.3.08.

(2.) In terms of the contract, the respondent gave an advance payment and which advance payment was secured by the petitioner by giving to the respondent the subject Bank Guarantee. The original contract contained a Clause called as Section 26.2 which reads as under:

(3.) Pursuant to the fresh discussion and negotiations between the parties, the contract was novated on 5.9.2008 and these novations are as under: