Calcutta High Court
Srmb Srijan Limited vs Great Eastern Energy Corporation Ltd. & ... on 8 July, 2014
Author: I. P. Mukerji
Bench: I. P. Mukerji
TA No. 117 of 2014 GA No. of 2014 CS No. 208 of 2014 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION SRMB Srijan Limited Versus Great Eastern Energy Corporation Ltd. & Anr.
Before:
The Hon'ble Justice I. P. MUKERJI Date: 8th July, 2014 Appearance:
Mr. Ahin Choudhury, Sr. Advocate Mr. Abhrajit Mitra, Sr. Advocate Mr. Jishnu Choudhury, Advocate Chayan Gupta, Advocate Mr. Saumabha Ghose, Advocate Mr. Aniruddha Agarwalla, Advocate for the plaintiff Mr. S. N. Mookherjee, Sr. Advocate Mr. Ratnanko Banerjee, Sr. Advocate Mr. S. Nigam, Advocate for defendant no. 1 Mr. Subhajit Saha, Advocate Mr. Gaurav Mukhopadhyay, Advocate for defendant no. 2 The Court: After hearing learned counsel for the parties, this application is disposed of by the following order:
Mr. Choudhury, learned senior advocate for the plaintiff has made it absolutely plain that his client has terminated the agreement with effect from 15th July 2014.
In that situation, the first defendant is entitled to immediately encash the subsisting bank guarantee for around Rs. 1.75 crores.
The order of this Court dated 1st July 2014 empowered the first defendant to give three working days' notice before discontinuing the gas supply of the plaintiff. It appears that the very next day they issued a three 2 days' notice to disconnect the supply. It has been disconnected further to that notice.
What is not appreciated in that notice is that the reason advanced therein for disconnection of gas supply was failure on the part of the plaintiff to renew the bank guarantee for Rs. 93,18,728/-. It was noted in the orders of this Court made on 12th June 2014 and 1st July 2014 that this bank guarantee had expired and on that footing orders had been passed. To cite non-renewal of that bank guarantee as a ground for disconnection of the gas supply at such short notice, in my opinion, was most improper on the part of the first defendant.
However, the matter comes a rest since the plaintiff has decided to terminate the agreement. However, Mr. Choudhury submits that the fuel supply be restored and continued till 15th July 2014 to enable his client to find another supplier.
Mr. Mookherjee, learned senior advocate for the first defendant submits that his client has no objection to make such supply provided the plaintiff pays for it and provides the security required for such supply. He further submits that the amount realised by invocation of the bank guarantee may not be adequate at this stage because the first defendant has a much higher claim than that represented by Mr. Choudhury.
According to Mr. Choudhury the first defendant has a claim of Rs. 63,06,548/- only and that out of the amount realised on encashment of the bank guarantee this amount should be appropriated.
My decision is that the plaintiff will be entitled to supply of gas up to 15th July 2014. The first defendant will be entitled to encash the bank guarantee of Rs. 1.75 crores immediately. They will be able to adjust therefrom their price and charges etc. for gas supply, upon furnishing of proper bills to the plaintiff except those already raised. They will also 3 furnish a statement of account to show how the money has been adjusted. The appropriations will be made without prejudice to the rights and contentions of the parties.
Supply is to be restored with immediate effect and continue uninterrupted till 15th July, 2014. The first defendant will ensure that the plaintiff does not draw more than the daily contracted consumption.
The substantial disputes between the parties may be resolved in a properly constituted proceeding between themselves.
Affidavits were not invited.
This application is disposed of by the above order. Leave is granted to the plaintiff to communicate the gist of this order by letter to the first defendant.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) R. Bose AR(CR)