GASTECH PROCESS ENGINEERING INDIA PVT LTD Vs. SAIPEM

JUDGEMENT

(1.) THE maintainability of a counter claim against a non party to the suit and the application of the counter claimant/defendant in the suit for impleading the said party as a party to the suit are for consideration.

(2.) THE plaintiff instituted the suit for recovery of Euro 2,80,632/-from the defendant together with pendente lite and future interest and for permanent injunction restraining the defendant from encashing the bank guarantee. The defendant filed a written statement contesting the suit. It was inter-alia stated in the written statement that the defendant had sent its proposal for supply of various equipment for Fuel Gas Treatment Package to M/s Gastech usa being the parent company of the plaintiff herein; that M/s gastech USA thereafter forwarded the said proposal to the plaintiff; the plaintiff subsequently accepted the said proposal of the defendant by issuing a letter of intent along with quotation for supply of equipment as per the specifications envisaged by the defendant. After so stating, the written statement thereafter proceeds to talk of the relationship/agreement between the plaintiff and the defendant. The defendant has of course in para 7 (viii), after reproducing the relevant terms and conditions of the purchase order placed by the defendant on the plaintiff, stated that during the negotiations between the defendant, M/s Gastech USA and the plaintiff, M/s Gastech USA had expressly assured to the defendant that there will be a full time involvement of one Mr. Museeb Sharif of m/s Gastech USA who was identified as the Project Manager under article 10 of the purchase order and assurances were given by M/s gastech USA that he shall be deputed for taking care of the entire project. It is further the averment of the defendant in the written statement that the said Mr. Museeb Sharif was never deputed and in his place one Mr. V. P. Sharma was incharge of the entire project.

(3.) THE defendant after filing the written statement preferred the counter claim aforesaid against not only the plaintiff but also against m/s Gastech Engineering Corporation USA (M/s. Gastech USA) for recovery of Euros 44,01,929/- along with pendente lite and future interest from the plaintiff and M/s Gastech USA jointly and severally. The defendant along with the said counter claim also filed the application aforesaid under Order 1 Rule 10 of the CPC for impleading M/s Gastech USA as a party to the suit. The counter claim and the application came up first before the court on 23rd january, 2009 when this court recorded reservation regarding maintainability of counter claim against a person other than the plaintiff. Arguments were heard thereafter on the maintainability of the counter claim as well as on the application for impleadment of the said M/s Gastech USA as a party to the suit.