NEW ERA INDUSTRIES Vs. STAR ALUBUILD PVT LTD

JUDGEMENT

(1.) PLAINTIFF has filed the present suit for permanent injunction restraining the defendant no.1 from encashing / invoking bank guarantee dated 24.8.2012 for a sum of Rs.32,79,375/ -. Along with the plaint, plaintiff has filed an application [I.A. 15869/2013 (under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure] for grant of stay. While issuing summons in the suit, the encashment of the bank guarantee was stayed. Subsequently, defendant has also filed an application [I.A. 20141/2013 (under Order XXXIX Rules 4 of the Code of Civil Procedure)].

(2.) ARGUMENTS have been addressed in both applications, the same are being disposed of by a common order.

(3.) BASED on the invoice, the contract material i.e. the tiles were imported by the plaintiff from Spain and supplied to the defendant. As per the plaint, although the tiles were of the highest quality and plaintiff fulfilled the vital parameters regarding strength, dimensions and other parameters as per the purchase order dated 18.8.2012, but on account of minor and negligible variation in the colour and shade of the tiles supplied to the defendant no.1 and in order to make up for the negligible and slight variation in the colour and shade, the plaintiff initially offered the discounted value of the entire stock of tiles supplied to the defendant No.1 @ 10%, but the same was subsequently increased to 35% and finally maximum special discount was offered by the plaintiff to the defendant no.1 @ 45%, while keeping all other initial terms and conditions unchanged. E -mails dated 15.12.2012, 4.1.2013 and 9.1.2013 were sent by the plaintiff to the defendant no.1.