Harsha Devani, J. - (1.) THIS petition, though stated to be under Articles 226 and 227 of the Constitution of India, can be entertained only under Article 227 in view of the law laid down by the Supreme Court in Radhe Shyam v. Chhabi Nath, : 2015 (1) GLH 474, wherein it has been held that judicial orders of civil courts are not amenable to writ jurisdiction under Article 226 of the Constitution and that an order of a civil court can be challenged under Article 227 and not under Article 226.
(2.) THE order dated 10th April, 2014 passed by the learned Judge, Court No. 4, City Civil Court, Ahmedabad below Exhibit -26 in Civil Suit No. 2144/2013 is the subject matter of challenge in this petition whereby the application made by the petitioner has been rejected. The facts giving rise to the present petition are that the first respondent namely, the original plaintiff instituted a suit being Civil Suit No. 2144/2013 in the City Civil Court at Ahmedabad inter alia praying for a decree for a sum of Rs. 1,96,10,516/ - (hereinafter referred to as "the suit amount") from the defendants, that is, the petitioner and the respondents No. 2 and 3. The first respondent - plaintiff has claimed the suit amount on account of the so called wrongful invocation of bank guarantee by the petitioner (original defendant No. 3).
(3.) THE above referred civil suit has been instituted in the following backdrop. The State of Madhya Pradesh entrusted to the Madhya Pradesh Road Development Corporation (MPRDC) a project of construction, upgradation, modernisation, development and maintenance of border check -post at twenty four locations in the entire State. The MPRDC, in turn, invited offers from interested bidders for the said project. In the bidding process, M/s. IL&FS emerged as the successful bidder for the said project. On 27th July, 2011, M/s. IL&FS entered into a contract with the petitioner (original defendant No. 3) for the construction of seven border check -posts out of a total of twenty four border check -posts in the State of Madhya Pradesh on the terms and conditions mentioned therein. Insofar as the work of construction of five border check -posts was concerned, the same came to be entrusted to the first respondent - plaintiff by the petitioner (original defendant No. 3). In fact, a letter of intent was issued by the petitioner in favour of the first respondent on 9th June, 2011, which was followed by the execution of a sub -contract by and between the first respondent and the petitioner on 26th August, 2011 at Hyderabad. It is the case of the petitioner that clause 38 of the sub -contract dated 26th August, 2011 executed by and between the first respondent and the petitioner, conferred exclusive jurisdiction on the courts in Hyderabad for resolving any disputes between parties, that is, the petitioner on one hand and the first respondent on the other. It is further the case of the petitioner that with respect to the performance of the work forming part of the subcontract, the first respondent - plaintiff gave a corresponding performance bank guarantee through IDBI Bank for a sum of Rs. 3,83,77,206/ - which was equivalent to 5% of the total work forming part of the sub -contract price. Subsequently, at the request of the first respondent - plaintiff, the scope of work was reduced from five check -posts to three check -posts. Correspondingly, the amount of performance bank guarantee was reduced to Rs. 1,92,85,048/ - from the original amount of Rs. 3,83,77,206/ -. It is further the case of the petitioner that the first respondent - plaintiff miserably failed to adhere to the time table prescribed by IL&FS for the completion of work due to which IL&FS terminated the main contract issued in favour of the petitioner. According to the petitioner, it was, therefore, left with no option but to invoke the bank guarantee for a sum of Rs. 1,92,85,048/ - submitted by the first respondent - plaintiff. After the invocation of the bank guarantee by the petitioner, the first respondent - plaintiff instituted the above referred suit in the City Civil Court at Ahmedabad, inter alia, praying for a decree for a sum of Rs. 1,96,10,516/ - from the defendants alleging wrongful invocation of the bank guarantee by the petitioner (original defendant No. 3). Along with the civil suit, the first respondent - plaintiff also produced a number of documents on record. According to the petitioner, since clause 38 of the sub -contract dated 26th August, 2011 executed by and between the first respondent - plaintiff and the petitioner - defendant No. 3 conferred exclusive jurisdiction upon the courts in Hyderabad for resolving any dispute between the parties, viz., the petitioner (original defendant No. 3) on one hand and respondent No. 1 (original plaintiff) on the other hand, the petitioner moved an application at Exhibit -26 under the provisions of rule 10 of Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") with a prayer to return the plaint of Civil Suit No. 2144/2013 for being presented in the court at Hyderabad. In response to the said application, the plaintiff filed its reply opposing the said application. By the impugned order dated 10th April, 2014, the trial court rejected the application filed by the petitioner which has given rise to the present petition.;