SIMPLEX INFRASTRUCTURES LIMITED Vs. RSPL LIMITED

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment dated 02/04/2019 passed by the Commercial Court, Ahmedabad in Commercial Civil Misc. Application No. 20 of 2019, dismissing the application of the present appellant who was the applicant before the learned lower court, has preferred the present appeal against the above mentioned impugned order on the grounds mentioned in the appeal memo.

(2.) The prayer prayed for the appellant in para-102 of the present appeal are as under:

(3.) Learned Senior Advocate Mr. Soparkar appearing on behalf of the appellant has mainly submitted that the notice has been addressed to improper person i.e. Subir Goswami and not to Mr. Subir Basu. Therefore, the notice for the termination as well as earlier notice is not as per the contract. He has further submitted that the letter sent by the respondent to the bank for invocation of bank guarantee addressed to Senior Manager whereas the contract contained that it should be addressed to the Chief Manager of the concerned bank. Earlier the appellant has preferred proceedings before Calcutta Civil Court for the bank guarantee but now at Ahmedabad City Civil Court, the appellant has preferred to challenge the invocation of the bank guarantee as well as termination of the contract. He has also submitted that notice of termination did not issued as per Article 17 and Article 21. The revised value of the contract is about Rs. 85 crores where as the work has been carried out about Rs. 83 crores and, therefore, about 98% work has been performed. He has also submitted that contract has been extended up to 28/02/2019 but in the meantime respondent ended the contract on 31/01/2019. The communication has been sent to the Subir Goswami whereas as per the contract it is required to be sent to Subir Basu. Therefore, communication as well as notice are not sent to the proper person as per the contract. The notice prior to termination is required to be issued by the respondent and a notice has been sent on 17/05/2016 but this is the first notice whereas as per Article 21, two notices are required to be sent before termination.