GUJARAT SIDHEE CEMENT LIMITED Vs. CALDYN APPARETABAU GMBH

JUDGEMENT

(1.) The present Appeal From Order arises out of the orders passed by the learned Chamber Judge, City Civil Court, Ahmedabad on the Notice of Motion in Civil Suit No. 1133 of 1997 dated March 11, 1997 and March 14, 1997.

(2.) The appellant before me happens to be the original defendant No. 1. The respondent No. 1 happens to be the original plaintiff. The rest of the respondents happen to be the original defendant Nos. 2 and 3. The parties shall be referred to as per their nomenclature before the Court below. Plaintiff, which can for the sake of brevity could be referred as "Caldyn" has filed Civil Suit No. 1133 of 1997 against the three defendants, namely, Gujarat Sidhee Cement Limited, State Bank of India Commercial Branch, Ahmedabad and SGZ-Bank Germany. According to the plaintiff, they are a Company registered under the German laws at Germany and happen to be the manufacturers and suppliers of Caldyn Systems, which are used for quenching of hot gases in a variety of industries. According to the plaintiff, somewhere in the early part of year 1995 the defendant No. 1 formerly known as Cement Corporation of Gujarat Limited and now known as Gujarat Sidhee Cement Limited had approached the plaintiff for the supply of a quenching system, and after certain negotiations the plaintiff had agreed to supply the quenching system to the defendant No. 1. The defendant No. 1 had placed the order under a letter dated May 20, 1995. In pursuance of the said purchase order the plaintiff had supplied the said system and had also installed the system at the plant of the defendant No. 1 in or about November 1995. The plaintiff had given a Performance Guarantee to the defendant No. 1 and that the defendant No. 3 SGZ-Bank had issued the Performance Guarantee on July 28, 1995, which was valid for a period of eight months, or sixth days from the date of the commission. Any how the commissioning of the system was delayed substantially by the defendant as alleged by the plaintiff. The plaintiff had got the Performance Guarantee extended twice, which is said to be an action on the part of the plaintiff in goodwill. The system in question came to be commissioned in or about November 19, 1996. The defendant No. 1 after the commissioning of the system had informed the plaintiff that, there was a "Substantial Scale Formation". Because of this, according to the plaintiff, certain differences and disputes had arisen and that, it was the apprehension on the part of the plaintiff that, there could be the invocation of the Performance Guarantee by the defendant No. 1 on the ground that there has been the scale formation on the fan blades. It is in this set of circumstances that the plaintiff had approached the Court by filing the suit and the notice of motion was taken out. In the application at Ex. 6 the plaintiff has prayed for the following relief :

(3.) The Court below has passed the orders on this application on March 11, 1997. It has been said in this order that, by way of an ad-interim relief the amount of Bank Guarantee which is to be received by the defendant No. 2 from the defendant No. 3 is directed to be retained by the defendant No. 2 and should not be disbursed till 14th March 1997. It was ordered that the matter should be posted for further hearing on 14th March 1997. This orders, therefore, would go to show that the Court below has said that the defendant No. 2-State Bank of India who has got the amount from the defendant No. 3 SGZ-Bank should not be paid to the defendant No. 1- Gujarat Sidhee Cement Limited. On March 14, 1997 the learned Chamber Judge has ordered below Application Ex. 15 that, the matter should be placed in regular Board of notice of motion for further hearing and rejoinder on 17th March 1997. It appears that the matter could not be heard and ultimately the Appeal From Order came to be filed.