INDURE PRIVATE LIMITED Vs. HEIDELBERG CEMENT LIMITED

JUDGEMENT

(1.) This order shall dispose of the IA No. 16649/2013 ( Order 39, Rule 1 and 2 CPC) of the plaintiff. The defendants filed the reply and sought vacation of the interim stay dated 19.10.2013.

(2.) In this application, the plaintiff has prayed for the stay of invocation of the bank guarantee.

(3.) The admitted facts of the case are that the plaintiff and the defendant had executed a Letter of Intent (LoI) dated 25.01.2013. Subsequently, an agreement dated 20.02.2013 was entered into between the parties which contained the conditions of the contract. As per Art. 1 of the said conditions of the work, the effective date of the contract was 25.01.2013, i.e., the day the LoI was executed between the parties. The plaintiff was required to furnish to the defendant within three months of the effective date of the contract, i.e., 25.01.2013, a detailed shipping schedule showing the breakdown of equipment into various shipment units, etc. Under Art. 6 of these terms and conditions of the contract, the parties agreed that in the event of any delay in supply of the Engineering and Equipment or violation of any other terms and conditions of the contract and where the delay is solely attributable to the seller, the liquidated damages may be imposed as per Art. 14 and be recoverable from the payments due to the seller. Parties also agreed to the terms "the Buyer by written notice to the Seller terminate this whole or any part of the Contract after (12) weeks of delay, due to factors/reasons attributable to the Seller". The period of performance of the contract was 18 months from the effective date of the contract, i.e., 25.01.2013 for the provisional acceptance. The parties also agreed under Art. 17 that either party may terminate this contract by written notice to other party. However, before termination, the other party shall be given a period of 21 days for fulfilment of the conditions of the contract and if the party fails to complete the obligation within 21 days given vide its notice the contract may be terminated by termination notice. Parties had also agreed that where there is a termination on account of sellers breach, delay in delivery of insolvency, than the buyer can claim and receive compensation for any direct loss or damages caused by the events referred to in Art. 6, 17(b) or Art. 17(c) against release and return of the advance payment bond and for performance bond.